Citation Nr: 1310895 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-06 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a higher initial evaluation for service-connected bilateral hearing loss disability, rated as noncompensably disabling prior to August 25, 2012, and as 30 percent disabling from August 25, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO), which granted service connection for a bilateral hearing loss disability with assignment of a noncompensable disability rating. This claim was remanded for further development in October 2011. All requested development having been completed, this claim now returns before the Board. During the course of this appeal, the Veteran's evaluation for this disability was increased to 30 percent, effective August 25, 2012. This action does not constitute a complete grant of the benefits sought on appeal. . FINDINGS OF FACT 1. For the period prior to August 25, 2012, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level I impairment in the right ear and Level II impairment in the left ear. 2. For the period subsequent to August 25, 2012, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level III impairment of the right ear and Level V impairment of the left ear. CONCLUSIONS OF LAW 1. For the period prior to August 25, 2012, the criteria for the assignment of a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012). 2. For the period subsequent to August 25, 2012, the criteria for the assignment of a disability rating greater than 30 percent for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in October 2011 for a further VA examination to adequately address the current level of severity of the Veteran's hearing loss. The Veteran was provided with an adequate VA examination in August 2012, and his claim was readjudicated in an October 2012 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2006, November 2011, July 2012, as well as the prior remand, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, most recently in August 2012. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in August 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2012). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing as set forth in 38 C.F.R. § 4.85 (2012). See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2012). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 Hertz, and 70 dB or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The Veteran's hearing loss disability is currently rated under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012) [hearing impairment]. Diagnostic Code 6100 is deemed by the Board to be the most appropriate, primarily because it pertains specifically to the disability at issue [hearing loss]. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6100. Evidentiary Background On the authorized audiological evaluation in July 2005, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 60 50 LEFT 25 35 50 65 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The examiner indicated that results were consistent with a mild sloping to moderate, high frequency, sensorineural hearing loss bilaterally. Word recognition scores were excellent bilaterally. An October 2006 outpatient treatment note indicated that the Veteran had a mild sloping to moderate hearing loss in the right ear, and a mild sloping to moderately severe hearing loss in the left ear, but did not provide specific numerical findings. On the authorized audiological evaluation in October 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 55 50 LEFT 30 35 50 60 60 Speech audiometry revealed speech recognition ability of 94 percent in both the right and left ears. The Veteran was diagnosed with a bilateral mixed hearing loss ranging from mild at lower Hertz levels, to severe at higher levels. The October 2006 examiner observed that the Veteran had been followed by ENT for possible Eustachian tube dysfunction and had been using a newly prescribed nasal spray that improved sinus congestion. However, this did not improve his hearing. On the authorized audiological evaluation in January 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 60 65 60 LEFT 30 50 60 70 60 Speech audiometry revealed speech recognition ability of 96 percent for both ears. The Veteran was diagnosed with sensorineural hearing loss in the right ear, and mixed hearing loss in the left ear, both starting as mild in lower Hertz, and sloping to severe at higher Hertz. The January 2009 examiner observed that the Veteran reported that he heard well with his hearing aids. The Veteran could hear, but had difficulty understanding what people were saying. He reported that people got tired of having to repeat themselves. He also reported loud and disrupting ringing in his ears. The examiner opined that the Veteran's hearing difficulty had significant effects on his occupational activities. On the authorized audiological evaluation on August 25, 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 70 65 70 LEFT 40 55 70 75 65 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 92 percent in the left ear. The Veteran was diagnosed with sensorineural hearing loss in both ears. The August 2012 examiner observed that the Veteran reported difficulty with general hearing and understanding in all listening environments. He stated that he often had to ask for things to be repeated in conversation and he felt that his left ear periodically "goes 'deaf'". Analysis Taking into account all relevant evidence, the Board finds, for the period prior to August 25, 2012, that the Veteran is currently properly rated as noncompensably disabled for his service connected hearing loss. In this regard, reviewing the evidence from the Veteran's July 2005 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level I hearing impairment of the right ear and Level I hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level I and Level I hearing loss, a noncompensable percent disability rating is assigned. Reviewing the evidence from the Veteran's October 2006 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level I hearing impairment of the right ear and Level I hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level I and Level I hearing loss, a noncompensable percent disability rating is assigned. Finally, reviewing the evidence from the Veteran's January 2009 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level I hearing impairment of the right ear and Level II hearing impairment of the left ear. Table VII [percentage evaluation for hearing impairment] indicates that, for a right and left ear with respective Level I and Level II hearing loss, a noncompensable percent disability rating is assigned. In light of the foregoing, the Board concludes that the criteria for a compensable rating for the Veteran's bilateral hearing loss disability are net met prior to August 25, 2012. For the period from August 25, 2012, the Board finds that the criteria for an evaluation in excess of 30 percent have also not been met. Reviewing the evidence from the Veteran's August 2012 VA examination report, and applying the results of this audiological evaluation to 38 C.F.R. § 4.85, Table VI, reveals Level III hearing impairment of the right ear and Level II hearing impairment of the left ear. However, the Board points out that this audiological evaluation demonstrates an exceptional pattern of impairment as defined by 38 C.F.R. § 4.86(a) in the Veteran's left ear. As such, Table VIA may be used for that ear, which would indicate Level V impairment of the left ear. Rather than warrant a rating in excess of the currently assigned 30 percent disability rating, under Table VII [percentage evaluation for hearing impairment] right and left ear hearing loss with respective Level III and Level V impairment is consistent with no more than a 10 percent disability rating. In reaching the above conclusion with respect to the Veteran's claim, the Board has not overlooked the Veteran's statements with regard to the severity of his hearing loss. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing trouble hearing; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with findings from the medical evidence. The Veteran is competent to report difficulty hearing and the Board has considered his contentions. However, he is not competent to assign specific numerical audiological findings to this impairment. The record does not reflect that the Veteran is competent to make such medical opinions, nor as noted above, is there evidence of other numerical findings applicable to the case. Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. In light of the foregoing, the Board concludes that the weight of the evidence of record does not show that, for any of the periods on appeal, that the Veteran has met the criteria for a higher evaluation for his hearing loss disability. Extraschedular Consideration In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted. See Martinak, 21 Vet. App. at 455. While the 2009 and 2012 VA examination reports marginally discuss the functional effects caused by the Veteran's bilateral hearing loss disability, the Board finds that no prejudice results to the Veteran and, as such, the Board may proceed with a decision. The Board observes that the examiners noted that the Veteran had difficulty hearing conversations and had to have other repeat themselves. Therefore, the Board concludes that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b). Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly s not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. Moreover, as shown above, the current 30 percent disability rating assign is greater than the 10 percent contemplated by currently audiometric findings. Nevertheless, the Board will not disturb this rating at this time. The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran. While the Veteran has to use hearing aids, the record reflects that he hears well with them. Furthermore, while others must repeat themselves, the Board finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating. In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence of record is against the claim of increased rating for the Veteran's hearing loss, and the benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra. As the preponderance of the evidence of record is against this claim, it must be denied. Rice Consideration In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the instant case however, there is no evidence this disability alone renders him unable to work, nor does it appear that the Veteran has made any such claim; therefore, the Board does not find consideration of a TDIU rating to be necessary. ORDER Entitlement to an increased rating for service-connected bilateral hearing loss, currently evaluated as noncompensably disabling prior to August 25, 2012, and as 30 percent disabling from August 25, 2012, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs