Citation Nr: 1315850 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-36 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased disability evaluation for chronic left ear otitis media with perforation and hearing loss prior to December 1, 2011. 2. Entitlement to a rating in excess of 60 percent for chronic left ear otitis media with perforation and hearing loss, from December 1, 2011 to July 4, 2012, and a rating in excess of 60 percent for bilateral hearing loss from July 5, 2012. 3. Entitlement to a rating in excess of 30 percent for vestibular disorder with chronic supportive otitis media from July 5, 2012. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and C.M. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in North Little Rock, Arkansas. In the October 2008 rating action, the RO denied a rating in excess of 50 percent for chronic left ear otitis media with perforation and hearing loss. The Veteran subsequently filed a timely appeal. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2010. A copy of the transcript of that hearing is of record. The Board remanded this case in October 2011 and June 2012. The purposes of these remands have been met and the case is ready for appellate consideration. In a March 2012 rating action, the RO increased the disability rating for the Veteran's service-connected chronic left ear otitis media with perforation and hearing loss to 60 percent, effective December 1 2011, the day of a VA examination which showed an increase in the severity of the bilateral hearing loss. In July 2012, the Veteran underwent a VA examination. The examiner stated that the Veteran had a peripheral vestibular condition, diagnosed as chronic suppurative otitis media. Due to the Veteran's vestibular condition, he staggered. The examiner opined that it was at least as likely as not (50 percent or greater probability) that the Veteran's balance problems were related to his service-connected chronic left otitis media with perforation and hearing loss. Thus, in a January 2013 rating action, the RO granted service connection for vestibular disorder with chronic supportive otitis media and assigned a separate 30 percent rating effective July 5, 2012. The RO also recharacterized the Veteran's service-connected chronic left ear otitis media with perforation and hearing loss as bilateral hearing loss and continued the 60 percent rating. In light of the above, the issue on appeal has been recharacterized accordingly on the title page. In the July 2012 VA examination report, the examiner stated that the Veteran's imbalance would make it very difficult for him to obtain and/or maintain substantial employment. In addition, in a December 2011 VA examination report, the examiner indicated that in consideration of the Veteran's severe to profound hearing impairment with poor word recognition ability in the left ear, the Veteran may experience difficulty obtaining and/or maintaining substantially gainful employment. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disability, cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability In light of the above, the issue of entitlement to a TDIU rating has been raised and the Board must adjudicate the TDIU issue as part of the increased rating claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA audiometric test results from November 2008 show that the Veteran had level VI hearing in his right ear and level XI hearing in his left ear. 2. VA audiometric test results from August 2009 show that the Veteran had level VI hearing in his right ear and level XI hearing in his left ear. 3. VA audiometric test results from December 2011 show that the Veteran had level VII hearing in his right ear and level XI hearing in his left ear. 4. At the time of the July 5, 2012 VA examination, it was noted that the Veteran demonstrated staggering and he was diagnosed with a vestibular disorder with chronic supportive otitis media. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for chronic left ear otitis media with perforation and hearing loss, prior to December 1, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85-4.87, Diagnostic Code 6100 (2012). 2. The criteria for a rating in excess of 60 percent for chronic left ear otitis media with perforation and hearing loss, from December 1, 2011 to July 4, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 3. The criteria for a rating in excess of 60 percent for bilateral hearing loss, as of July 5, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 4. The criteria for a rating in excess of 30 percent for vestibular disorder with chronic supportive otitis media, as of July 5, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.87, Diagnostic Code 6204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 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) (2011). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in October 2008, November 2011, and June 2012 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in October 2008, November 2011, and June 2012 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in October 2008, prior to the appealed from rating decision, along with the subsequent notice provided in November 2011 and June 2012, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in March 2012 and January 2013 supplemental statements of the case (SSOCs) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. However, this decision was recently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Board finds that the October 2008, November 2011, and June 2012 letters substantially satisfy the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Veteran's pertinent medical records, including his service treatment records and VA treatment records, have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence relevant to the issue decided herein, is available and not part of the claims file. In regard to an examination, the Veteran received VA audiological examinations in November 2008, August 2009, and December 2011, which were thorough in nature and adequate for the purposes of deciding this claim. The aforementioned VA examinations revealed findings that are adequate for rating the Veteran's bilateral hearing loss. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. The Board also notes substantial compliance with the remand directives in its previous remands in October 2011 and June 2012. Specifically, the RO was requested to obtain all relevant VA Medical Center (VAMC) outpatient treatment records pertinent to the Veteran on and after July 28, 2008. The RO was further directed to afford the Veteran with a VA audiological evaluation in order to determine the current severity of his service-connected bilateral hearing loss. Pursuant to the October 2011 remand, the Veteran underwent a VA audiological examination in December 2011. In the June 2012 remand, the Board noted that it was the Veteran's contention that he was having problems with his balance due to his service-connected otitis media and perforation. As it was unclear if the Veteran's balance problems were due to his service-connected ear disability, the RO was directed to furnish him with a VA examination in order to determine the etiology of any unsteady gait. In addition, although the RO had obtained VAMC outpatient treatment records from November 10, 2011 onward, records from July 28, 2008 to November 10, 2011, had not been obtained. Thus, the RO was requested to obtain such records. The Board notes that the Veteran's electronic ("Virtual VA") file includes VAMC outpatient treatment records dated from March 1992 to June 2012. Pursuant to the Board's June 2012 remand, the Veteran underwent a VA examination in July 2012. The examiner diagnosed the Veteran with a peripheral vestibular condition, diagnosed as chronic suppurative otitis media, and linked such condition to his service-connected chronic left ear otitis media with perforation and hearing loss. In light of the above, the Board is satisfied there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Factual Background By an October 1947 rating action, the RO granted service connection for chronic left ear otitis media with perforation and normal hearing. A noncompensable disability rating was assigned, effective from May 7, 1946. In a January 1996 rating action, the Veteran's service-connected ear disorder was recharacterized as chronic left ear otitis media with perforation and hearing loss. The RO increased the rating from noncompensable to 10 percent disabling under Diagnostic Codes 6201-6101, effective from September 14, 1995. In an October 1999 rating action, the RO increased the disability rating for the Veteran's service-connected ear/hearing loss disorder from 10 percent to 30 percent disabling under Diagnostic Codes 6201-6100, effective from June 2, 1999. In a July 2005 rating action, the RO increased the disability rating for the Veteran's service-connected ear/hearing loss disorder from 30 percent to 50 percent disabling under Diagnostic Codes 6201-6100, effective from April 27, 2005. In October 2008, the Veteran requested that his service-connected ear/hearing loss disability be reevaluated for a higher rating. In November 2008, the Veteran underwent a VA audiological examination. He stated that he had difficulty understanding speech in all listening situations. The authorized audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 70 75 75 LEFT 105 105 80 90 90. The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was reported as 68.75 decibels in the right ear and 91.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 0 percent in the left ear. The examiner interpreted the results as showing bilateral sensorineural hearing loss. A VA audiological examination was conducted in August 2009. The Veteran stated that he had bilateral otalgia. He denied any otorrhea or vertigo. The Veteran also denied any gait problems; however, he was non ambulatory in a wheelchair at the time of the examination. According to the Veteran, he was retired. The authorized audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 70 75 75 LEFT 105 105 80 90 90. The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was reported as 68.75 decibels in the right ear and 91.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 0 percent in the left ear. The examiner interpreted the results as showing bilateral sensorineural hearing loss. He also diagnosed the Veteran with chronic left otitis media with perforation, and bilateral otalgia with no evidence of chronic and/or aural polyps. The examiner noted that a peripheral vestibular disorder was not diagnosed. According to the examiner, the Veteran's ear/hearing loss disability had no effects on occupational and daily activities. In August 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Veteran testified that he had profound hearing loss disability and experienced significant problems with ambulation due to his impaired equilibrium. On December 1, 2011, the Veteran underwent a VA audiological examination. He stated that he had difficulty understanding speech in all listening environments. The authorized audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 70 75 80 LEFT 105 105 75 85 85. The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was reported as 71.25 decibels in the right ear and 87.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 0 percent in the left ear. The examiner interpreted the results as showing bilateral sensorineural hearing loss. The examiner stated that the Veteran's bilateral hearing loss would have significant effects on his occupation. The Veteran may encounter difficulty communicating with co-workers in adverse listening situations. Given the Veteran's severe to profound hearing impairment with poor word recognition ability in the left ear, it was the examiner's opinion that the Veteran may experience difficulty obtaining and/or maintaining substantially gainful employment. In a March 2012 rating action, the RO increased the disability rating for the Veteran's service-connected chronic left ear otitis media with perforation and hearing loss from 50 percent to 60 percent disabling, effective from December 1 2011. On July 5, 2012, the Veteran underwent a VA examination. The examiner stated that the Veteran had severe to profound hearing loss in both ears and had difficulty understanding people in conversation. According to the Veteran, he had problems with balance which had become increasingly worse since his last VA examination in 2009. The Veteran ambulated with a cane at all times and had to also hold onto the wall to balance himself for fear of falling. The examiner stated that the Veteran had a peripheral vestibular condition, diagnosed as chronic suppurative otitis media. Due to the Veteran's vestibular condition, he staggered. Upon physical examination, examination of the Veteran's external ear and ear canal was normal. There was evidence of a healed tympanic membrane perforation on the left. The Veteran's gait was very unsteady. Following the examination, the examiner opined that it was at least as likely as not (50 percent or greater probability) that the Veteran's balance problems were related to his service-connected chronic left otitis media with perforation and hearing loss. The examiner stated that balance was determined by multiple factors including vision, hearing, and proprioception. Although the Veteran had deficits in all three areas, his hearing had continued to decline secondary to his service-connected left otitis media with perforation as per his report and as documented on audiograms dated in October 2010 and December 2011. The examiner also indicated that the Veteran's imbalance would make it very difficult for him to obtain and/or maintain substantial employment. In a January 2013 rating action, the RO granted service connection for vestibular disorder with chronic supportive otitis media and assigned a separate 30 percent rating under Diagnostic Codes 6200-6204, effective July 5, 2012. In conjunction, the RO recharacterized the Veteran's service-connected chronic left ear otitis media with perforation and hearing loss as bilateral hearing loss and continued the 60 percent rating. III. Analysis Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. For claims for increased rating which do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When the issue involves a claim for an increased rating for hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. 38 C.F.R. § 4.85. It should be emphasized that "assignment of disability 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, 349 (1992). In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Evaluations of defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with average hearing thresholds, with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes 11 auditory acuity levels, designated level I, for essentially normal acuity, through level XI for profound deafness. See 38 C.F.R. § 4.85. In accordance with 38 C.F.R. § 4.86, there is an alternative rating method which may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2012). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). In regard to the Veteran's separate 30 percent rating for vestibular disorder with chronic supportive otitis media, Diagnostic Code 6204 assigns a disability rating of 30 percent for "dizziness and occasional staggering." The Board notes that 30 percent is the highest schedular rating available under Diagnostic Code 6204. The note in this diagnostic code indicates that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87, Diagnostic Code 6204. Diagnostic Code 6200 also applies to the Veteran's vestibular disorder with chronic supportive otitis media. Under this code, the maximum rating is 10 percent for chronic supportive otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps. 38 C.F.R. § 4.87, Diagnostic Code 6200. Complications to include hearing impairment are to be rated separately. Id. With respect to whether a rating in excess of 50 percent is warranted for chronic left ear otitis media with perforation and bilateral hearing loss prior to December 1, 2011, the Board notes that the audiological findings from both the Veteran's November 2008 and August 2009 VA audiological evaluations translate into Level VI hearing loss for the right ear and Level XI hearing loss for the left ear. See 38 C.F.R. § 4.85. Numeric designations VI and XI correspond to a 50 percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Rating Schedule provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Upon a review of the Veteran's November 2008 and August 2009 VA audiological examination reports, the pure tone threshold in each of the four specified frequencies was greater than 55 in both ears. Thus, the Veteran is entitled to consideration under 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment in both ears. However, because the higher numerals are under Table VI, the numerals from Table VIa will not be applied. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria. See Lendenmann, 3 Vet. App. at 349. Thus, based on the audiometric findings in the November 2008 and August 2009 VA examinations, the 50 percent disability rating in effect for chronic left ear otitis media with perforation and hearing loss prior to December 1, 2011, is appropriate, and a higher rating is not warranted. As to whether a rating in excess of 60 percent is warranted after December 1, 2011, the audiological findings from the December 2011 VA audiological evaluation translate into Level VII hearing loss for the right ear and Level XI hearing loss in the left ear and correspond to a 60 percent rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered whether a higher evaluation can be assigned pursuant to 38 C.F.R. § 4.86 (exceptional patterns of hearing impairment); however, as before, the higher numerals are under Table VI not Table VIa. Therefore, Table VIa will not be applied as it is not more beneficial to the Veteran. Accordingly, the Board concludes that schedule ratings higher than those currently assigned for chronic left ear otitis media with perforation and hearing loss - 50 percent prior to December 1, 2011 and 60 percent from December 1, 2011 to July 5, 2012 - are not warranted. Given the audiological findings sited above, the Board likewise finds that a rating in excess of 60 percent for bilateral hearing loss from July 5, 2012 is not warranted. Effective July 5, 2012, the Veteran has been assigned a separate 30 percent rating for vestibular disorder with chronic supportive otitis media. The 30 percent rating is the highest (maximum) schedular rating available under Diagnostic Code 6204. There is no alternate code for application. Notably, an evaluation under Diagnostic Code 6205 (Meniere's disease) is not proper because the Veteran does not have Meniere's disease. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In addition, a separate rating is not warranted for the Veteran's chronic supportive otitis media. In the July 2012 VA examination, although the Veteran was diagnosed with chronic supportive otitis media, no suppuration was shown upon examination. Moreover, there was no evidence of aural polyps. The Veteran has indicated that he has difficulty hearing and argues that he is therefore entitled to a higher rating. He is competent to describe his hearing loss. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, the rating criteria for hearing loss contemplate a degree of functional difficulty due to demonstrable hearing loss, even in the hearing levels nevertheless assigned a noncompensable rating. Furthermore, the rating schedule for hearing loss relies primarily on the application of objective test data. 38 C.F.R. §§ 4.85, 4.86; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Therefore, while the Board has taken the Veteran's competent lay statements into consideration, his described symptomatology does not alter the Board's rating assignments. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). IV. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's chronic left ear otitis media with perforation and hearing loss, and vestibular disorder (i.e., difficulty understanding people in most everyday listening situations and impaired gait) are not shown to cause any impairment that is not already contemplated by 38 C.F.R. §§ 4.85, 4.86. The evidence does not present such an exceptional or unusual disability picture that available schedular evaluations are inadequate. Therefore, the Board finds that the rating criteria reasonably describe the disability caused by the Veteran's chronic left ear otitis media with perforation and hearing loss, and vestibular disorder, and referral for consideration of an extraschedular rating is not warranted. See Martinak, supra. ORDER Entitlement to a rating in excess of 50 percent for chronic left ear otitis media with perforation and hearing loss prior to December 1, 2011, is denied. Entitlement to a rating in excess of 60 percent for chronic left ear otitis media with perforation and hearing loss, from December 1, 2011 to July 4, 2012, is denied. Entitlement to a rating in excess of 60 percent for bilateral hearing loss on and after July 5, 2012, is denied. Entitlement to a rating in excess of 30 percent for vestibular disorder with chronic suppurative otitis media on and after July 5, 2012, is denied. REMAND As stated in the Introduction, statements from examiners from the Veteran's December 2011 and July 2012 VA examination reports have raised the issue of entitlement to a TDIU rating. A TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). In this case, the issue of entitlement to TDIU has not been developed nor considered by the RO in the first instance. Therefore, the Board remands the TDIU issue to the RO for development and adjudication. Specifically, the Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with VCAA notice explaining how to substantiate a claim for TDIU. 2. Schedule the Veteran for a VA examination to determine the impact of his service-connected disabilities on his employability. The claims file must be provided to the examiner for review. The examiner should obtain a complete occupational history from the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities, which consist of bilateral hearing loss, vestibular disorder with chronic suppurative otitis media, and pruritus papules of the groin, alone or in combination, preclude him from securing and following substantially gainful employment. A complete rationale must be provided for any opinion expressed. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs