Citation Nr: 1318157 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-48 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating greater than 40 percent prior to May 29, 2012, and greater than 50 percent thereafter, for service-connected bilateral hearing loss. 2. Entitlement to a rating greater than 10 percent for service-connected maxillary sinusitis and vasomotor rhinitis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied entitlement to higher disability ratings for maxillary sinusitis and vasomotor rhinitis and bilateral hearing loss and entitlement to a TDIU. In a June 2012 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 50 percent disabling, effective May 29, 2012. As the Veteran is presumed to be seeking the highest possible rating for a disability unless he expressly indicates otherwise, and he has not so indicated, the issue of entitlement to a higher rating for bilateral hearing loss remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). A December 2010 Report of General Information expressly clarifying the Veteran's June 2010 notice of disagreement (NOD) with the September 2009 rating decision on appeal shows that the Veteran wanted to appeal all evaluations of service connected disabilities, i.e., bilateral hearing loss, tinnitus, and maxillary sinusitis and vasomotor rhinitis, and entitlement to a TDIU. Therefore, the June 2010 NOD includes the issue of entitlement to a TDIU. See Palmer v. Nicholson, 21 Vet. App. 434, 436 (2007) (in reviewing an NOD, the Court considers the actual words of the potential NOD and the context in which they were written). Furthermore, a claim for TDIU may be raised as part of an increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, the issue of entitlement to a TDIU is on appeal before the Board. The Veteran requested a hearing before a Veterans Law Judge (VLJ) via videoconference at his local RO in December 2010 but subsequently cancelled the requested hearing before the scheduled hearing date in August 2012. As such, his hearing request is withdrawn. See 38 C.F.R. § 20.704(e) (2012). In October 2012, the Board remanded the issues of entitlement to a higher rating for maxillary sinusitis and vasomotor rhinitis and bilateral hearing loss to the AMC for further evidentiary development and denied entitlement to a higher rating for service-connected tinnitus. Consequently, the issue of the disability rating assigned for tinnitus is no longer on appeal. The issues of service connection for loss of the sense of smell and sense of taste were initially raised as manifestations of his service-connected sinus disorder but are separate from the claims on appeal as these are separately diagnosed with disorders with an underlying etiology that ultimately relates back to an in-service concussion and not to the Veteran's service-connected sinus disorder. See Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (explaining that where the appellant contends that a newly diagnosed disability is related to a service-connected disability, the claim seeking benefits for the newly diagnosed disorder is separate from a claim seeking a higher rating for the disability already service-connected); see also Clemons, v. Shinseki, 23 Vet. App. 1, 9 (2009) (explaining that the holding in Clemons encouraging liberal determinations on the scope of claims on appeal does not contradict the holding in Ephraim). Benefits were not awarded on the basis of any relationship to his service-connected maxillary sinusitis and vasomotor rhinitis, initially service-connected in a February 1955 rating decision on the basis of onset and treatment in service. Furthermore, the Veteran has not expressed disagreement with the July 2011 and October 2011 rating decisions granting service connection for loss of sense of smell and taste, respectively, and assigning initial noncompensable ratings, effective October 26, 2010. Therefore, these issues are not on appeal before the Board as they are outside the scope of this claim. Similarly, though the Veteran has repeatedly raised the issue of entitlement to benefits for residuals of an in-service concussion, including damage to his sinuses and damage to his ears, and these disorders have repeatedly been noted in the treatment records and lay statements present in the Veteran's claims folder and electronic records file, the scope of the increased rating claims on appeal is limited to the severity of his service-connected maxillary sinusitis and vasomotor rhinitis that had its onset during active service and bilateral hearing loss caused by acoustic trauma. See, e.g., November 2012 statement; June 2011 VA examination report; March 2011 statement; December 2010 spouse statement, June 2010 statement; January 2007 statement; November 2006 VA treatment record (claiming or noting the presence of residuals of an in-service concussive explosion or disorders related to a history of an in-service concussive explosion). The diagnosed disabilities on appeal, (1) maxillary sinusitis and vasomotor rhinitis and (2) bilateral hearing loss, were specifically identified by those diagnoses in the February 1955 and July 2002 rating decisions that awarded service connection for these disabilities. See Ephraim, 82 F.3d at 401-02. Critically, the underlying etiological theories justifying the award of service connection did not involve an in-service concussive explosion, but the onset of sinus and rhinitis symptoms in service and hearing loss due to acoustic trauma. Consequently, the issue of entitlement to benefits for residuals of an in-service concussion has not been the subject of a rating decision by the agency of original jurisdiction as the February 1955, July 2002, and any subsequent rating decision, including the September 2009 rating decision on appeal, did not address this issue. Therefore, ear and sinus residuals of an in-service concussion are not within the scope of the increased rating claims on appeal and are not properly before the Board. See 38 C.F.R. § 4.13 (directing the Board to reconcile any changes to the diagnosis of the Veteran's service-connected disability, keeping in mind the diagnosis and etiology of the disability for which service connection was initially granted); Fenderson v. West, 12 Vet. App. 119, 125 (1999) (providing that, in determining the scope of the issue on appeal, due consideration must be given to the distinction between an original claim for benefits placed in appellate status by the Veteran's disagreement with the initial rating assigned and a new claim for an increased rating). However, the Board finds that the issue of service connection for residuals of an in-service concussion, including sinus damage and ear damage, has been raised by the Veteran and the evidence of record. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of an increased rating for maxillary sinusitis and entitlement to a TDIU 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 August 2009 show that the Veteran had level VII hearing in his right ear and level VII hearing in his left ear. 2. VA audiometric test results from October 2010 show that the Veteran had level VII hearing in his right ear and level VII hearing in his left ear. 3. VA audiometric test results from May 2012 show that the Veteran had level VIII hearing in his right ear and level VIII hearing in his left ear. CONCLUSIONS OF LAW 1. Prior to May 29, 2012, the criteria for a rating higher than 40 percent for service-connected bilateral hearing loss had not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 (2012). 2. As of May 29, 2012, the criteria for a rating higher than 50 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, VA's electronic data storage system, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, each piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that VA must review the entire record, but does not have to discuss each piece of evidence); 38 U.S.C.A. § 7104(d)(1) (stating the Board's duty to provide a statement of the reasons and bases for its findings and conclusions on all material issues of fact and law presented on the record). The analysis below focuses on the most salient and relevant evidence and whether this evidence substantiates the claims on appeal. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly addressed in the Board decision. See generally Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duty to Notify and Assist The Department of Veterans Affairs (VA) has a duty to notify the claimant of the information and evidence that is necessary to substantiate the claim and a duty to assist claimants in obtaining that evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5103(a), VA will inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, and (3) that the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Further, VA will request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1); see Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). This is so the Veteran receives affirmative notification as to the evidence that is needed and who will be responsible for providing it prior to the initial decision in the case. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Consequently, this notice must be provided upon receipt of a complete or substantially complete application for benefits and before an initial unfavorable decision on a claim by a agency of original jurisdiction. Id.; see Pelegrini, 18 Vet. App. at 120. Failure to comply with any of these requirements may constitute prejudicial error. 38 U.S.C.A. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). Here, the Veteran filed a claim for entitlement to a TDIU in May 2009, and the RO interpreted this claim as including a claim for an increased evaluation of his service-connected disabilities. The RO sent a letter in July 2009 advising the Veteran to submit evidence showing that his service-connected disabilities had increased in severity, specifically medical or lay evidence showing a worsening or increase in severity and the effect that the worsening or increase has on his employment in daily life. See 38 U.S.C.A. § 5103(a); Quartuccio, 16 Vet. App. at 186-87; 38 C.F.R. § 3.159(b); see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102-03 (2010). The Veteran was specifically notified that VA will consider evidence of audiometric testing when evaluating the severity of hearing loss and was provided with examples of sources of records that might be relevant to the evaluation of a disability rating. He was also provided with notice of the factors determining the assignment of an effective date. The July 2009 letter did not specifically identify the issue of the rating assigned for the Veteran's bilateral hearing loss, but no prejudice to the Veteran results where that notice was submitted pursuant to receipt of the Veteran's claim for a TDIU and he is service-connected for three conditions only, all of which were initially on appeal in the matter before the Board. VA may demonstrate lack of prejudice from a notice error by demonstrating that any notice defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice provided what was needed, or that a benefit could not possibly be awarded as a matter of law. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). A determination of whether a Veteran had a meaningful opportunity to participate in the adjudication of his or her claim and was, therefore, not prejudiced by any notice error, requires review all of the evidence. Overton v. Nicholson, 20 Vet. App. 427, 434-435 (2006); see also 38 U.S.C.A. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that the appellant carries the burden to establish prejudice). Here, the appellant was not prejudiced by the deficiencies in the July 2009 notice letter. Neglecting to name each service-connected disability individually when providing notice pursuant to an increased rating claim raised by the Veteran's claim for entitlement to a TDIU does not constitute a complete absence of notice. A reasonable person reading the July 2009 notice letter could be expected to understand that the notice advising the Veteran of the information and evidence needed to substantiate a claim for an increased evaluation generally applied to the disability rating assigned for his service-connected hearing loss. Goodwin, 22 Vet. App. at 133-34. Furthermore, the Veteran had actual knowledge of the information and evidence necessary to substantiate a claim for an increased rating for bilateral hearing loss as notice specific to the evaluation of hearing loss had last been received in January 2007, pursuant to an earlier claim for an increased rating for service-connected hearing loss that was denied only two years prior and demonstrated that knowledge by submitting multiple statements describing his progressively worsening hearing loss and the effect that it has on his daily functioning. See id. Consequently, as the July 2009 notice letter of the essential elements needed to establish a claim for an increased rating, including a claim for an increased rating for bilateral hearing loss; the Veteran had recently received specific notice on substantiating a claim for an increased rating for bilateral hearing loss two years prior; and the Veteran demonstrated actual notice of the information and evidence needed to substantiate a claim for an increased rating for bilateral hearing loss, the Board finds that he has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and has not been prejudiced by any technical notice deficiency. See generally Conway, 353 F.3d 1369 (Fed. Cir. 2004). The duty to assist has also been met as the record contains the Veteran's service records, VA treatment records, and all obtainable private treatment records and he was provided with an adequate VA examination. See generally 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c). In October 2012, the Board's remand order explained that there was reason to believe that there was additional outstanding evidence relevant to the Veteran's appeal because he referred to a future VA hearing test in correspondence dated August 2012 and expressed concern that his case was not ready for adjudication. Accordingly, the Board's remand order directed the AMC to identify and obtain any outstanding relevant VA treatment records. Subsequently, the Veteran was contacted by letter dated November 2012 and all outstanding VA treatment records were associated with the Veteran's electronic claims file, including an August 2012 follow up appointment that was scheduled during the Veteran's last VA audiological examination in May 2012. The Board finds that as the timing of this appointment is grossly consistent with the Veteran's statement dated from the end of July 2012 and received just before the August 2012 audiological clinic appointment. Although the Veteran indicated that he was reporting to the VA hospital for another hearing test and the audiological clinic note shows a therapeutic hearing aid assessment, the scheduling of this appointment at the end of the May 2012 VA examination, as noted by the VA examiner in that report, sufficiently accounts for any miscommunication or misunderstanding regarding the nature of the appointment. There is no indication that any record of any hearing test is missing or that the records associated in the Veteran's electronic records folder for the period requested are anything less than complete. The October 2012 remand order also directed the AMC to contact the Veteran and obtain the necessary identifying information and authorization to obtain any relevant private treatment records since May 2012. The AMC sent a letter to the Veteran requesting this information with the necessary forms in November 2012. The Veteran submitted authorization forms for two private medical care providers. One was requested and obtained, but the other provider notified VA that the authorization form was invalid due the lack of a date accompanying the Veteran's signature. Accordingly, the Veteran was contacted by letter dated January 2013 and informed that the authorization form he submitted for this provider was invalid due to the missing date. The letter explained that the provider would not release the records without an authorization form that was both signed and dated and asked the Veteran to either complete and return the authorization form or obtain the records and submit them on his own behalf. The Veteran replied in February, but did not cooperate with the AMC's request. Rather, he explained that he had submitted authorization forms for that provider three times over the course of his appeal and believed VA's negligence was to blame for the lack of valid authorization form. See February 2013 statement ("I believe you have them or someone has thrown the info away."). Therefore, no additional efforts are warranted in order to obtain these records. The January 2013 clearly stated the nature of the problem, but the Veteran refused to cooperate with the AMC's efforts to obtain a valid signed and dated authorization form that may be legally used to obtain the Veteran's recent private treatment records. Therefore, any additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In a February 2013 statement, the Veteran alleged that his VA records were incomplete due to missing private audiological examination reports he brought to VA to be associated with his file and misplaced records during a VA examination. There is no reference to the private treatment records in the Veteran's VA treatment records and all relevant VA treatment records have been requested and associated with his file. Furthermore, the Veteran was given ample notice of the need to report the existence of any additional private treatment records he wanted VA to consider and the opportunity to do so. Audiological treatment records dating from August 1964 were obtained and associated with the file. As noted above, the AMC was unable to obtain the Veteran's other private treatment records, which, according to the authorization form, contain records showing treatment for hearing loss, due to the Veteran's failure to cooperate with the AMC's efforts to obtain his records from his private health care provider. Therefore, as review of the record shows no indication that these records exist, or have ever existed, as part of the Veteran's VA treatment record; all appropriate efforts to obtain the Veteran's private treatment records have been made; and additional records showing treatment for an ear disorder were obtained from a private provider on remand, the Board finds that no further assistance is warranted to obtain records identified only as "copies of tests from private companies" without any additional information regarding name, location, or relevant dates of treatment. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Furthermore, in undertaking all necessary efforts to obtain the Veteran's VA and private treatment records, followed by the readjudication of his claim in a March 2013 supplemental statement of the case (SSOC), the AMC has substantially complied with the directives in the Board's October 2012 remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board has a duty to ensure compliance with remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (explaining that it is substantial compliance that is required, not perfect compliance). The Veteran was provided with VA audiological examinations in August 2009, October 2010, and May 2012. The examiner fully considered the Veteran's relevant medical history and described his disability in sufficient detail. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The May 2012 examination report included a full description of the functional effects caused by the Veteran's hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Therefore, the Veteran has been provided with a thorough and contemporaneous VA examination and the duty to assist has been satisfied. There is no reasonable possibility that any further assistance to the Veteran by VA would develop the evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007); Forcier v. Nicholson, 19 Vet. App. 414, 421-22 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). Upon review of the entire record on appeal, there is no indication that there is additional evidence or additional notice that should be provided. The Board has ensured substiantial compliance with the October 2012 remand order and has conducted a complete review of all the evidence without prejudice to the Veteran. There is no indication that any prejudice to the Veteran has resulted from the timing or substance of the notice or assistance with evidentiary development provided in this case. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (explaining that the Veteran's obligation to show that an error was harmful does not impose a complex system of burden shifting or a particularly onerous requirement; the party seeking reversal normally must explain why the erroneous ruling caused harm); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (noting that "prejudice is not assessed in a vacuum; rather it is based on the facts and circumstances presented in the entire record"). Furthermore, any such error, if found, would be harmless and should not prohibit consideration of this appeal on the merits. See Marcinak v. Brown, 10 Vet. App. 198, 201 (1997) (noting that remand is unnecessary in the absence of demonstrated prejudice). As any additional development efforts would serve no useful purpose and there is no indication that prejudice to the Veteran will result from adjudicating this appeal, the Board will proceed with the adjudication of the issues on the merits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Increased Rating for Hearing Loss The Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability ratings of 40 percent prior to May 29, 2012, and 50 percent thereafter. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 C.F.R. § 4.10. The ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although the Veteran's entire history is reviewed when assigning a disability evaluation under 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, or different stages of disability, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) ("[S]taged 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."). Here, staged ratings have already been assigned by the RO for service-connected bilateral hearing loss following the May 2012 VA audiological examination, which demonstrated that the Veteran's hearing had worsened. Therefore, the Board's evaluation will include a determination of whether review of the evidence shows that the stages identified and corresponding disability evaluations assigned for the Veteran's service-connected bilateral hearing loss are proper. The Veteran bears the burden of presenting and supporting the claim for benefits. 38 U.S.C.A. § 5107(a). When evaluating the claim, the Board will give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. §§ 1154(a), 5107(b); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board will determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). In increased rating claims, lay statements alone may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). The Board will assess the credibility and probative value of the competent evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana, 24 Vet. App. at 433. Equal weight is not assigned to each piece of evidence as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Generally, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI, but in exceptional cases where the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, either Table VI or Table VIA, which uses puretone thresholds only, is used, whichever results in the higher evaluation. 38 C.F.R. §§ 4.85, 4.86. Each ear is evaluated separately. 38 C.F.R. § 4.86. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. 38 C.F.R. § 4.85. In August 2009, the Veteran underwent audiometric testing at a VA examination. His average puretone thresholds were 78 decibels for the right ear and 79 decibels for the left ear. Speech discrimination, using the Maryland CNC test, was recorded at 64 percent for the right ear and 80 percent for the left ear. A diagnosis of moderate to profound sensorineural hearing loss, bilaterally, is provided. The examiner also noted that the Veteran used binaural hearing aids. The August 2009 results equate to an assignment of level VII bilaterally, under either Table VI or Table VIA for the right ear and under Table VIA for the left ear, as the Veteran exhibits an exceptional hearing loss pattern as defined by the regulation. The examiner also provided the opinion that the Veteran's hearing loss would not prevent attainment of gainful employment, which is consistent with a July 2009 VA Form 21-4192 completed by the Veteran's last employer showing that no accommodation was needed for his hearing loss. In October 2010, the Veteran was provided with another VA audiological examination. His average puretone thresholds on that date were 76 decibels for the right ear and 79 decibels for the left ear, with speech discrimination scores of 64 percent for the right ear and 72 percent for the right ear. As before, the October 2010 results equate to an assignment of level VII bilaterally, where the left ear is evaluated under Table VIA. Level VII hearing bilaterally corresponds to a 40 percent disability rating for hearing loss under Table VII. Therefore, the Veteran is entitled to a 40 percent disability rating for bilateral hearing loss through the staged period ending with his May 29, 2012, VA examination. At the May 2012 examination, the Veteran reported functional effects of not being able to make out words clearly even while wearing his hearing aids. His tympanometry results were within normal limits.. He was diagnosed with moderate sloping to profound sensorineural hearing loss. Average puretone thresholds were reported at 82 decibels for the right ear and 90 decibels for the left ear, with speech discrimination scores of 65 percent for the right ear and 60 percent for the left ear. This audiometric data corresponds to an assignment of level VIII hearing, bilaterally, using table VI for both ears as it results in the assignment of the highest level. Level VIII hearing bilaterally corresponds to a 50 percent disability rating for hearing loss under Table VII. Therefore, as of May 29, 2012, the Veteran is entitled to a 50 percent disability rating for bilateral hearing loss. The Veteran's has testified that his hearing loss is progressively worsening, requires him to use a hearing aid during all waking hours, and interferes significantly with his ability to have conversations with people. See October 2010 statement; June 2010 notice of disagreement. He also reported two frightening incidents where he failed to hear alarms, and continuing fear of failure to hear safety alarms, in an April 2007 statement. In a February 2012 statement, the Veteran described his hearing as "very bad." The Veteran is competent to testify to his symptoms of hearing loss and the Board finds that his statements are credible. See Charles v. Principi, 16 Vet. App 370, 374 (2002). His VA examinations also show a pattern of progressively worsening hearing loss, as he describes. Both the audiometric data and his symptoms, as he describes them, are consistent with the ratings assigned; it should be noted that the rating schedule for hearing loss relies primarily on the application of objective test data. 38 C.F.R. §§ 4.85, 4.86; Martinak, 21 Vet. App. at 455. Therefore, while the Board has taken the Veteran's competent lay testimony into consideration, his description of his symptoms does not alter the Board's rating assignments. In denying entitlement to a rating higher than 40 percent prior to May 29, 2010, or 50 percent thereafter, for bilateral hearing loss, 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). III. Extraschedular Ratings Generally, it is sufficient to evaluate a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule. "However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating." Thun v. Peake, 22 Vet. App. 111, 114 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In Thun, the Court concluded that the "determination of whether a claimant is entitled to extraschedular rating under § 3.321(b) is a three-step inquiry." 22 Vet. App. 111, 115 (2008), aff'd, 572 F .3d 1366 (Fed. Cir. 2009). 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." Id. To do this, the Board must determine whether the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, VA will move to the second step of the analysis. Id. at 115-16. Under the second prong, the RO and Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Id. In sum, if the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step-to determine whether, "to accord justice," an extraschedular rating must be assigned. Id. In this case, the symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing conversations and difficulty hearing alarms) are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe the Veteran's hearing loss disability. The 40 percent and 50 percent ratings assigned correspond to significant levels of hearing loss where the type of functional impairment described by the Veteran is consistent with the level of severity reflected in the schedular criteria. For these reasons, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a rating greater than 40 percent prior to May 29, 2012, or greater than 50 percent thereafter, for bilateral hearing loss is denied. REMAND The Veteran is service-connected for maxillary sinusitis and vasomotor rhinitis which is rated, in part, on the presence of polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. A March 2011 VA examination report notes a possible polyp on the proximal right nares. X-rays showed an impacted maxillary incisor on the left and a 16mm opacity immediately superior to the posterior hard palate that was potentially related to the inferior nasal turbinates. The x-ray report described the opacity as being of uncertain etiology, requiring further evaluation by CT scan. A more recent VA examination was conducted in May 2012. Although polyps were not noted, the basis of this finding is unclear as additional imaging studies to include a CT scan were not completed. Therefore, on remand, the Veteran should be provided with an additional VA examination in order to obtain an examination report adequate for rating purposes, including clarification of the March 2011 examination data and any necessary testing. Lastly, in Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant files a timely NOD and there is no issuance of a statement of the case (SOC), the Board should remand, rather than refer, the issue to the RO for the issuance of an SOC. As discussed in the introduction above, the RO denied service connection for a TDIU in a September 2009 rating decision. The Veteran filed valid NOD in the form of a premature VA Form 9, Appeal to Board of Veterans' Appeals, and selected the option to appeal all issues listed on the statement of the case (SOC). Here, as the VA Form 9 was premature, no SOC had yet been issued, but a reasonable interpretation of the VA Form 9 raises the question of whether the Veteran intended to appeal all of the issues listed on the September 2009 rating decision. Therefore, in December 2010, the RO contacted the Veteran for clarification. The Veteran indicated that he wished to appeal the ratings assigned for all service-connected disabilities and his claim for entitlement to a TDIU. This statement was reduced to writing in a December 2010 Report of Information and associated with the claims folder. Tomlin v. Brown, 5 Vet. App. 355 (1993). Therefore, as instructed in the December 2010 Report of Information, the Veteran should be provided with an SOC on the issue of entitlement to a TDIU. Manlincon, supra. Lastly, appropriate efforts should be made to obtain any outstanding relevant VA treatment records and associate them with the claims folder or electronic records file. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). 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). Expedited handling is requested.) 1. Obtain all of the Veteran's outstanding relevant VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Then, schedule the Veteran for appropriate VA examination of his service-connected chronic sinusitis and vasomotor rhinitis to ascertain the current severity of the condition. The examiner is asked to make the following determinations: (a) Review the suggestion to address resolve the lack of certainty available from the March 2011 x-ray via a CT scan and explain why this test is not necessary to resolve the ambiguity if a CT scan is not accomplished. Any other necessary tests should be accomplished. (b) Identify all diagnoses substantiated by the medical evidence of record. (c) Describe the severity of all diagnoses found to be manifestations of the Veteran's service connected sinusitis and vasomotor rhinitis. Specifically, state whether the Veteran's sinusitis or rhinitis has been manifested by polyps at any time during the appellate period, or with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The examiner should also state whether there is any evidence of rhinoscleroma. (d) Explain the nasal valve collapse noted on the June 2011 VA examination report and state whether it is a manifestation of the Veteran's service connected sinusitis and vasomotor rhinitis. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached that clearly states the conclusions, identifies the supporting data for each conclusion, and provides a reasoned medical explanation connecting the supporting data to each conclusion. 3. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, adjudicate and/or readjudicate the Veteran's claims on appeal. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with an SOC and/or SSOC and allow an appropriate time for a response. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs