Citation Nr: 1318644	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  06-38 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to a compensable evaluation for a bilateral hearing loss disability.

2.  Entitlement to an evaluation in excess of 20 percent for midline herniated nucleus pulposus L4-5 (hereinafter 'lumbar spine disability').


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse




ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1972 to September 1984.

This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2004 and July 2005 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a Board hearing at the RO in Portland, Oregon in August 2010.  This transcript has been associated with the file.

During the pendency of the appeal, in a May 2012 rating decision, the RO assigned an increased evaluation of 20 percent effective May 14, 2004 for the Veteran's lumbar spine disability.  With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In a May 2012 rating decision the Veteran was granted service connection for acid reflux, tinnitus, and peripheral neuropathy of the bilateral lower extremities.  The Veteran has not disagreed with the assigned disability ratings or the effective dates.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.)  Therefore, these matters are considered resolved and are not in appellate status. 

The case was brought before the Board in February 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording him new VA examinations.  The VA obtained additional private treatment records and the Veteran was afforded VA examinations in July 2011 for his hearing loss and lumbar spine disability.  Therefore, the Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).


FINDINGS OF FACT

1.  The Veteran's audiometric examination corresponds to no more than a level I for the left ear and a level I for the right ear.

2.  The Veteran's lumbar spine disability is manifested by limitation of motion with pain; there were no incapacitating episodes having a total duration of at least four weeks in a twelve-month period, nor was there evidence of any associated neurological disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

2.  The criteria for an evaluation in excess of 20 percent for a lumbar spine disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The notice requirements were met in this case by letters sent to the Veteran in May 2004 and October 2006.  The May 2004 letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  Notice provided in October 2006 also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the December 2004 and July 2005 rating decisions, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, statement of the case, and supplemental statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  At his August 2010 Board hearing the Veteran testified that his hearing loss and lumbar spine disabilities had worsened.  This shows that he has actual knowledge of the type of evidence needed to substantiate his increased rating claims.  The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted.  See Shinseki, supra.

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The Veteran's service treatment records and VA treatment records are in the file.  The VA has also obtained private treatment records and associated them with the claims file.  The Veteran has not indicated that there are any additional outstanding records to be obtained.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  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.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

The Veteran was afforded VA medical examinations in July 2011 to determine the severity of his bilateral hearing loss and lumbar spine disabilities.  These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file.  The examiners obtained an accurate history.  The examiners provided a detailed explanation for the opinions that were reached.  

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  Therefore, the Board finds that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

Bilateral Hearing Loss Disability

The Veteran contends that his bilateral hearing loss disability should be awarded a higher evaluation throughout the appeal period.  For the reasons discussed below, the Board finds no higher evaluation is appropriate.

The ratings schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations of hearing impairment in both ears.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

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, Table VI or Table VIA is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2012).

The Veteran was given an audiogram by his private audiologist in May 2006.  The pure tone thresholds, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
LEFT
20
20
60
80
45
RIGHT
25
20
25
50
30

The report lists additional speech recognition scores, but as it is not clear the test used was the Maryland CNC testing, as required by VA standards, these results cannot be used to determine an appropriate rating for the Veteran's bilateral hearing loss disability.  See 38 C.F.R. § 4.85.

However, the Board has used the July 2011 findings, discussed below, to determine an appropriate evaluation.  This is to the Veteran's benefit as the July 2011 audiogram findings show a worsening in the Veteran's hearing loss from the May 2006 private audiogram.

The Veteran was afforded a VA examination in July 2011.  The pure tone thresholds, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
LEFT
30
40
80
85
59
RIGHT
30
35
35
50
38

Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear.  

Using these results and entering the average pure tone threshold and speech recognition ability into Table VI reveals the highest numeric designation for hearing impairment for the left ear is I and for the right ear is I.  Entering both the category designations for each ear into Table VII results in a noncompensable disability rating under Diagnostic Code 6100.

The Board is aware of the Court's decision in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) which held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  While not argued by the Veteran's representative, the July 2011 VA examination report documents the Veteran's complaints of the functional effects of his bilateral hearing loss.  The July 2011 report specifically noted the Veteran's complaints of difficulty understanding speech on the phone and in noisy situations, but generally at all times.  The Veteran also testified at his August 2010 Board hearing that he had to see the speaker to understand them.  

The Board acknowledges the Veteran's statements that his bilateral hearing loss disability warrants an increased disability evaluation throughout the appeal period.  The Board has considered the Veteran's statements that his hearing loss has worsened over the years and that he has difficulty hearing in all situations.  The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing when he is on the phone.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2).  

However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in relation to the applicable rating criteria.  Medical examiners, including the VA compensation examiner, have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability.  The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.'  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

In sum, the Board finds that there is no probative audiological evidence of record to support an increased rating for the Veteran's bilateral hearing loss disability at any time during this appeal period.  The preponderance of the evidence is against the Veteran's claim for a higher rating.  Consequently, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).




Lumbar Spine Disability

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The Veteran's lumbar spine disability has been evaluated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5243.  Under this Diagnostic Code a 10 percent disability rating is awarded for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the lumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  

A 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the lumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  
A 40 percent disability rating is assigned for forward flexion of the lumbar spine to 30 degrees or less; or favorable ankylosis of the entire lumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

Note (1):  Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the lumbar spine is zero to 45 degrees, extension is zero to 45 degrees, and left and right lateral rotation are zero to 45 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the lumbar spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.
Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and lumbar spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

As the Veteran is rated under Diagnostic Code 5243 the Board observes that the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes will be taken into account.  A minimum of incapacitating episodes having a total duration of at least one week, but less than 2 weeks during a 12 month period is required for a compensable evaluation.  Id.

The Veteran is in receipt of a 20 percent evaluation for his lumbar spine disability as of May 14, 2004.  The Veteran contends that a higher evaluation is warranted.  Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his lumbar spine disability at any point during the appeal period.

With regard to range of motion testing, at his July 2011 VA examination the Veteran had forward flexion limited to 45 degrees and extension limited to 3 degrees.  He had internal rotation to 12 degrees and lateral bending to 15 degrees.

Applying the range of motion measurements to the general ratings formula, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 20 percent for orthopedic manifestations of his lumbar spine disability.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  An evaluation greater than 20 percent is not warranted as there is no medical evidence of forward flexion of the lumbar spine limited to 15 degrees or less.  Id.  In addition, there is no objective evidence of ankylosis of the lumbar spine or of the entire spine during this period.  Id.

There is also no evidence during the appeal period that the Veteran experienced incapacitating episodes lasting at least 4 weeks in the previous year, as would be required for a higher evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

In an April 2010 private treatment record the Veteran reported back pain for the past 36 years.  He was diagnosed with severe degenerative changes and foraminal stenosis in a June 2010 private treatment record.  The Veteran was involved in a car accident in 2010 and attended physical therapy to help with back pain.  See e.g., September 2010 private treatment record.  At his July 2011 VA examination the Veteran reported that his current orthopedic treatment included careful activity, oral medication, and some special exercising.  He was not using a brace or cane.  He reported constant chronic pain in his lower back and the examiner noted tenderness at the L3-L5 area.

At his August 2010 Board hearing the Veteran and his wife testified that his back pain had worsened over the years and he had tried alternative treatments such as acupuncture to help with the pain.  He also testified he could not sit for long periods of time and he could not help out as much as home.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor.  However, the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates assignment of a 20 percent rating during this period.  See 38 C.F.R. § 4.7.

As noted above, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca, supra.  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  At his July 2011 VA examination the examiner found no evidence of weakness, fatigue, or decreased coordination.  There is no evidence that there is additional functional loss beyond what is reflected in the range of motion measurements.

Finally, the Board has considered whether a separate evaluation for a neurological disability is warranted.  In reviewing the VA and private treatment records there is no evidence the Veteran complained of, or was diagnosed with, any neurological disabilities for which he is not already compensated.  See e.g., April 2010 private treatment record.  Thus, the Board finds that a separate evaluation for neurological disability is not warranted with respect to the present appeal.

The Board acknowledges the Veteran's statements that his lumbar spine disability has worsened and an increased disability evaluation is warranted.  As noted, the Veteran is competent to report matters of which he has personal knowledge, such as pain and limitation of motion.  See Jandreau, supra; Barr, supra; 38 C.F.R. § 3.159(a)(2).  

However, as a layman, the Veteran is not further competent to provide a probative opinion on a medical matter, especially the severity of his lumbar spine disability in relation to the applicable rating criteria.  The VA compensation examiner conducted objective range of motion testing and reported the Veteran's subjective complaints.  The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.'  Madden, supra.

In light of the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his service-connected lumbar spine disability at any point during the appeal period.  See Fenderson, supra.  The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.  However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied.




Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran'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 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The Veteran's service-connected disabilities are appropriately evaluated.  His primary symptoms are hearing loss, limitation of motion, pain, and degenerative changes.  All of his symptoms are accounted for in the regular schedular rating criteria.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluation for the service-connected bilateral hearing loss and lumbar spine disabilities is adequate, referral for an extra-schedular rating is unnecessary.  Thun, supra.  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  Extra-schedular referral is not warranted under the circumstances presented.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Entitlement to a compensable evaluation for a bilateral hearing loss disability is denied.

Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is denied.



____________________________________________
KRISTI L. GUNN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs