Citation Nr: 1311071 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 02-00 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. For the period beginning August 27, 2008, entitlement to a disability rating in excess of 30 percent for bilateral hearing loss. 2. Entitlement to a disability rating in excess of 10 percent for bilateral otitis media with Eustachian tube dysfunction. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia that denied the Veteran's claims for compensable ratings for bilateral hearing loss and otitis media. A March 2008 RO decision granted a 10 percent rating for otitis media, effective April 25, 2001. A September 2008 RO decision granted a 30 percent disability rating for bilateral hearing loss, effective August 27, 2008. In a June 2012 Board decision, a compensable rating for bilateral hearing loss for the period from April 25, 2001, to August 26, 2008, was denied. The Veteran continued his appeal as to the two issues listed on the cover page of this decision, and these issues are still properly before the Board. See Colayong v. West, 12 Vet. App. 524, 536-537 (1999). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2012. A transcript of the hearing is associated with the claims file. In August 2002, October 2009, June 2010, and June 2012, the Board remanded the issues on appeal for further development. The requested development has been completed and is associated with the claims file, and these matters are ready for further review by the Board. In addition to a paper claims file, the Veteran also has an electronic claims file known as a Virtual VA file. The Board reviewed both the paper and electronic files prior to adjudication. FINDINGS OF FACT 1. For the timeframe beginning August 27, 2008, audiometric examinations correspond to no greater than a level V hearing loss for the right ear and no greater than a level VII hearing loss for the left ear 2. Throughout the entire appellate period, the Veteran's bilateral otitis media with Eustachian tube dysfunction has been manifested by symptoms analogous to suppuration and/or polyps, and he has been awarded the maximum rating provided by the schedular criteria for such a disability. 3. The Veteran's hearing loss disability and chronic otitis media do not present an exceptional or unusual disability picture. 4. The Veteran is not shown by the most probative evidence of record to have Meniere's disease. CONCLUSIONS OF LAW 1. Beginning August 27, 2008, a disability rating in excess of 30 percent for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.85, Diagnostic Code 6100, 4.86 (2012). 2. A disability rating in excess of 10 percent for bilateral otitis media with Eustachian tube dysfunction is not warranted; evaluation as Meniere's disease is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.87, Diagnostic Code 6200 (2012). 3. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 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 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. In this case, the Board finds that VCAA letters dated May 2001, December 2002, April 2003, March 2004, July 2004, March 2006 (Dingess), and May 2008 (Vazquez-Flores) fully satisfied the notice requirements of the VCAA, and his claims were most recently readjudicated by way of a January 2013 Supplemental Statement of the Case (SSOC). See 38 U.S.C.A. § 5103(a) (West 2002); 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 claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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) ("[N]o 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 and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of increased rating and includes the Veteran's statements as to the severity of his symptoms. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim 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) (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 VA medical records are in the file. The Veteran has not indicated additional private treatment for his bilateral hearing loss and bilateral otitis media with Eustachian tube dysfunction other than shown in treatment records already associated with the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA examinations most recently in August 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the August 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court, noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Neither the Veteran nor his accredited representative has asserted that there is any deficiency in his August 2011 VA examination. The Board finds that the August 2011 VA examination fulfilled the requirements of Martinak as the examiner discussed the functional effects of the Veteran's hearing problems. Based on the association of VA records and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its June 2012 remand directives for the hearing loss and otitis media claims to the extent possible under the circumstances. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the periods considered. Bilateral Hearing Loss Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Otitis Media Regarding bilateral otitis media with Eustachian tube dysfunction, a 10 percent rating is warranted for chronic suppurative otitis media during suppuration or when aural polyps are presented. A 10 percent rating is the maximum schedular evaluation allowed. Any associated hearing loss or tinnitus is rated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200. This Code indicates to rate hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, separately. Chronic nonsuppurative (no purulent discharge) otitis media is rated on the basis of the associated hearing impairment. See 38 C.F.R. § 4.87, Diagnostic Code 6201. Factual Background and Analysis The Veteran contends that his bilateral hearing loss (beginning August 27, 2008) and bilateral otitis media with Eustachian tube dysfunction warrant ratings in excess of 30 percent and 10 percent, respectively. The Veteran additionally contends that he experiences Meniere's disease and should be separately rated for it. By way of background, the Veteran was originally awarded service connection for his right ear hearing loss in April 1970 and service connection for his left ear hearing loss was awarded in July 2001. The RO initially assigned noncompensable ratings for both ears, but in a September 2008 rating decision, the rating for bilateral hearing loss was increased to 30 percent, effective August 27, 2008. As noted in the Introduction, the Board already adjudicated the increased rating claim for the period prior to August 27, 2008. Also, in its June 2012 decision, as part of the Board's consideration of whether an increased rating was warranted for hearing loss prior to August 27, 2008, the Board considered whether a separate rating was warranted for Meniere's disease prior to August 27, 2008. The Board notes that the representative has since continued to put forth a similar assertion with respect to the increased rating requests related to bilateral hearing loss on and after August 27, 2008, and chronic otitis media. For this reason, and because the Board's previous decision only reached a final decision with respect to the issue of a higher rating for hearing loss prior to August 27, 2008, the Board finds that this assertion must again be considered with respect to the matters that remain on appeal. Service connection for bilateral otitis media with Eustachian tube dysfunction was originally awarded in an October 1969 rating decision, a 10 percent rating was eventually awarded in March 2008, effective April 2001. As such, with respect to the hearing loss, the Board will focus its attention on the evidence beginning August 2008, and as for the otitis media, the Board will focus on the evidence beginning around the timeframe he filed for an increase (April 2001). Bilateral Hearing Loss The Veteran was afforded a VA audiological examination in August 2008, at which time puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 45 55 55 65 55 LEFT 55 65 85 90 74 Maryland CNC speech recognition testing revealed 72 percent in the right ear and 62 percent in the left ear. The average of the pure tones between 1000-4000 Hz was 55 for the right ear and 74 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of V for the right ear and VII for the left ear. Such a degree of hearing loss warrants a 30 evaluation under Table VII. Although the Veteran meets the threshold for an exceptional pattern of hearing impairment in his left ear, he would only be entitled to a numeric designation of IV under Table VIA. See 38 C.F.R. § 4.86 (a) & (b). As such, the designation using Table VI is more advantageous to the Veteran. Regarding his social and occupational functioning, the Veteran has reported that his loss of hearing acuity has caused job-related difficulties inasmuch as he cannot hear or comprehend others. Additionally, he reported that the "roaring" in his ears impacts his ability to sleep. The Veteran underwent a private audiological evaluation in December 2008, at which time he reported sudden decreased hearing. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 60 X 70 N/A LEFT 70 60 X 75 N/A In order to be used for rating purposes, the Veteran's audiological examinations must include the four frequencies noted above, and Maryland CNC speech discrimination scores. The December 2008 examination did not include a threshold at 3000 Hz, and although it appears that a Maryland CNC examination was performed, it is unclear from the report as to what his scores were. As such, this examination is unusable for VA rating purposes. During VA treatment for his bilateral hearing loss, the Veteran underwent some audiological evaluations in November 2009 and January 2010. These examinations note puretone thresholds in decibels, but the November 2009 evaluation shows no Maryland CNC testing, and the January 2010 is unclear as to the findings of both the bone conduction studies and speech recognition testing. As such, the Board finds these evaluations to be inadequate for VA rating purposes, and the details of these evaluations will not be listed herein. The Veteran was most recently afforded a VA fee-basis audiological examination, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 55 60 70 61.25 LEFT 60 65 80 95 75 Maryland CNC speech recognition testing revealed 64 percent in the right ear and 72 percent in the left ear. The average of the puretones between 1000-4000 Hz was 61.25 for the right ear and 75 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VI for the right ear and VI for the left ear. Such a degree of hearing loss would only warrant a 20 evaluation under Table VII. The Board again considered the Veteran's left ear as an exception pattern of hearing impairment, but under Table VIA, he would still be assigned a numeric designation of VI. See 38 C.F.R. § 4.86 (a) & (b). Regarding the Veteran's ability to work and perform his daily activities, the examiner noted that he has difficulty communicating and is limited as to what he can do because of his difficulty hearing even with hearing aids. The Veteran has continued to seek treatment for his bilateral hearing loss at the VA Medical Center, and has been shown to have abnormal, bilateral tympanic membranes in addition to his bilateral sensorineural hearing loss. The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing since the August 2011 examination and, therefore, nothing to suggest that an additional VA examination would be beneficial. The probative medical evidence does not show the Veteran's hearing loss has ever reached a level in excess of 30 percent disabling. In fact, his current audiological examination reveals findings that would only warrant a 20 percent rating under the applicable rating criteria. As such, staged ratings are inapplicable for the timeframe beginning August 27, 2008. See Fenderson, 12 Vet. App. at 119. Considering the results of the VA examinations, entitlement to a disability rating in excess of 30 percent is denied. Otitis Media Throughout the period on appeal, the Veteran has reported that his hearing aid use has aggravated his chronic, bilateral otitis media. He has reported that certain hearing aids have actually caused ear infections. He has also reported relatively consistent drainage in one of both of his ears and has been noted to have skin irritations and infections in his ears. He also maintains that he has Meniere's disease due to recurrent dizziness. The Veteran was afforded a VA examination in November 2010 to determine, inter alia, whether he had Meniere's disease. In addition to his bilateral hearing loss, otitis media, and Eustachian tube dysfunction, the Veteran reported chronic imbalance with episodes of spinning. These episodes last from seconds to minutes. While the examiner was trying to clean the Veteran's ear, he reported experiencing dizziness. An ENG was performed, which revealed no spontaneous, gaze-evoked, or head-shake nystagmus; Dill-Hallpike was negative, and vestibular ocular reflex was intact. Diagnoses of hearing loss, Eustachian tube dysfunction, chronic left tympanic membrane perforation were recorded. The examiner opined that there was no evidence of a vestibular defect, and that although the Veteran reported several symptoms that are also associated with Meniere's disease, they do not occur with the expected duration or coincidence to support that diagnosis. In a November 2010 addendum prepared by a VA staff physician, Dr. R.T., he indicated that the Veteran's major complaints have been hearing loss, tinnitus, and middle ear fluid. The Veteran had a minor complaint of dizziness, but this complaint has varied from a mild, chronic imbalance to brief spells of imbalance or spinning that last, at most, only a couple of minutes. The physician indicated that these episodes are not positional in nature and can occur at any time. This physician also noted that examination showed normal vestibular ocular reflex, no head-shake nystagmus, and no positional nystagmus. He opined that examination was not consistent with a vestibular problem including Meniere's, but nevertheless a rotary chair test was ordered. In December 2010, rotary chair testing was performed, at which time the assessment included abnormal steps at 240 hertz and low gain for vestibular ocular reflex consistent with bilateral vestibular weakness. The Veteran was also recommended to follow up with ENT for possible abnormal vestibular function. At the same time, however, it was noted that the 240 degree results were difficult to interpret and should be interpreted with caution. In other words, there was evidence that the Veteran did try to suppress responses at faster rotation rates and tracings were not clean. In a January 2011 addendum, Dr. R.T. indicated that he reviewed the rotary chair test report, but again opined that the Veteran's history is not consistent with Meniere's disease. He further indicated that the audiologist who conducted the rotary chair test found these results to be unreliable and the previous physical examination results were inconsistent with the current chair testing results. Dr. R.T. noted that the Veteran could not have bilateral vestibular loss with a normal time constant on step responses and normal phase on sinusoidal rotation. He noted that these were two portions of the test that the Veteran could not "suppress." Dr. R.T. opined that the Veteran does not experience a vestibular defect. In light of the above, the Board finds that evaluation for Meniere's disease is not warranted. The Board notes that there is no competent opinion of record that contradicts the opinions of the VA examiners. The Board acknowledges an April 2010 statement from Dr. J.B. in which he noted that the Veteran complained of experiencing episodic vertigo several times per month lasting seconds to minutes. Further, he opined that it is conceivable and possible, if not likely, that the Veteran has a component of Meniere's disease in one or both ears. Dr. J.B. provided no rationale for his opinion. Ultimately, the Board finds that the opinions of the VA examiner are by far more probative in considering whether the Veteran's hearing loss should be rated as Meniere's disease. The Board adds that there is no record of diagnosis of vertigo in the claims file, not even in treatment records from Dr. J.B. dated around the time of his opinion letter (December 2008 to June 2010). The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his service-connected otitis media. Moreover, the evidence does not support a separate rating for Meniere's disease. The Board notes that the Veteran is currently awarded the highest rating possible under Diagnostic Code 6200 for his otitis media. 10 percent is awarded during periods of drainage or when aural polyps are present. The Board has considered whether he would be entitled to a rating in excess of 10 percent for his otitis media under any other Diagnostic Code, but finds that he would not be so entitled. The evidence does not show that the Veteran has a diagnosis of peripheral vestibular disorder causing dizziness with occasional staggering (Diagnostic Code 6204), Meniere's syndrome (Diagnostic Code 6205), loss of auricle (Diagnostic Code 6207), or malignant neoplasms of the ear (Diagnostic Code 6208) to warrant a rating in excess of 10 percent for one of these diseases of the ear. Consequently, increased ratings under other Codes are not warranted. Simply put, there is no avenue to assign the Veteran a higher rating for his otitis media based upon the evidence of record. In addition, the evidence does not reflect any other complications besides hearing loss and tinnitus which are already being separately rated. Again, as noted above the evidence does not confirm that the Veteran currently experiences Meniere's syndrome despite his contentions, and the Board made findings of the same in its June 2012 decision. Additionally, the most probative treatment records reflect that although the Veteran's private audiologist indicated that the Veteran likely had Meniere's disease, his symptoms were inconsistent with a diagnosis of Meniere's disease or other vestibular defect. As such, the criteria for a rating in excess of 10 percent for otitis media have not been met. The Board has considered the lay testimony offered by the Veteran, as well as the relevant clinical evidence of record, but finds that the Veteran's chronic otitis media does not warrant a rating in excess of 10 percent. Finally, staged ratings are inapplicable under the circumstances. See Fenderson, 12 Vet. App. at 119. Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluations for the service-connected hearing loss disability and otitis media are inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability and otitis media with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology for these disabilities. Specifically, the Veteran reports difficulty hearing and understanding conversations, even with amplification, and he experiences recurrent ear infections that are aggravated by hearing aid usage. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations and active ear infections are factors contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. Finally, complaints of recurrent ear infections have been considered under the rating schedule related to chronic otitis media. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 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. ORDER Beginning August 27, 2009, entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 10 percent for bilateral otitis media with Eustachian tube dysfunction is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs