Citation Nr: 1319207 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 08-34 075A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to an increased (compensable) rating for a right ear hearing loss disability. 2. Entitlement to a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel INTRODUCTION The Veteran had active military service from April to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By that rating action, the RO continued noncompensable disability ratings assigned to the service-connected right ear hearing loss disability and residuals of a perforated right eardrum. The Veteran appealed this rating action to the Board. By a September 2010 rating action, the RO awarded a 30 percent disability rating to the service-connected residuals of a perforated right ear drum with related vertigo, effective June 12, 2006--the date VA received the Veteran's claim for increased compensation for this disability. Thus, the issue of entitlement to a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo remains on appeal and has been framed as that reflected on the title page. The Board notes that in a September 2010 written argument to VA, the Veteran's representative indicated that the Veteran desired to continue his appeal for his claim for a compensable disability rating for his right ear hearing loss disability. Thereafter, in September 2012 and April 2013 written arguments to VA, as well as in a September 2012 Supplemental Statement of the Case, the Veteran's representative and RO, respectively, limited their discussion to the above-cited increased evaluation issue. After the Board sought clarification from the Veteran's representative as to whether the Veteran desired to continue his appeal with respect to the issue of entitlement to a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo, this issue was subsequently included in a May 2013 written argument to VA, prepared by the Veteran's representative. Thus, the Board finds that the issue of entitlement to a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo has remained in appellate status and it will proceed with appellate review of the claim in the decision below. Bernard v. Brown, 4 Vet. App. 384 (1993). The issue of entitlement to service connection for Meniere's Disease, (originally claimed as a disability manifested by a loss of equilibrium, secondary to the service-connected right ear hearing loss disability) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See Veteran's representative's August 2011 written argument to the RO). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was afforded VA audiological examinations in August 2006, March 2007 and May 2010. The results of these examinations were found to be inconclusive due to poor testing and inter-testing reliability by the examiners due to the Veteran having been unresponsive and malingering. There is no other evidence of record to warrant a compensable disability rating for the service-connected right ear hearing loss disability. 3. The Veteran's residuals of a perforated right eardrum with related vertigo has been assigned the maximum rating used to evaluate peripheral vestibular disorders. Meniere's disease and loss of auricles of both ears have not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for a hearing loss disability of the right ear are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.85, Diagnostic Code (DC) 6100 (2012). 2. The criteria for a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.87, 4Diagnostic Codes (DCs) 6211-6204(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Specifically, in an August 2006 preadjudication letter, the RO advised the Veteran of the evidence and information necessary to substantiate his increased rating claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, a February 2008 letter advised the Veteran of the evidence and information necessary to establish a disability rating(s) and an effective date(s) in accordance with Dingess/Hartman, supra. In addition, the Board notes that in Vazquez-Flores, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) held that in increased evaluation claims, VA must inform the claimant that, in order to substantiate a claim, he or she must provide (or ask the VA to obtain) medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that such worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is currently rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by providing the evidence described above (such as a specific measurement or test result), then VA must give at least general notice of that requirement. Additionally, VA must inform the Veteran that if he or she is assigned a higher rating, that rating will be determined by applying relevant diagnostic codes, which generally provide for disability ratings between 0 and 100 percent, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. at 43. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision vacating and remanding the above-summarized decision of the Court. See Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Specifically, the Federal Circuit held that only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim." With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service- connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, the Federal Circuit vacated the decision of the Court insofar as it requires VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. Id. Thus, there has been an intervening change in the law with respect to the required VCAA notice in an increased rating claim. The Federal Circuit recognizes three exceptions to the law of the case doctrine, to include when the controlling authority has since made a contrary decision of law. See Chisem v. Brown, 8 Vet. App. 37 (1995); see also Leopoldo v. Brown, 9 Vet. App. 33 (1996) (per curiam). As such, the heightened VCAA notice requirements under Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are no longer required. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the increased evaluation claims, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained the Veteran's service treatment records and VA examination and treatment records. In a July 2012 letter to the Veteran, the RO requested that he submit recent VA 21-4142s from Miner's Memorial Health Center and Herrin Hospital in support of his claims. The Veteran did not submit the requested forms. The Veteran's Social Security Administration (SSA) records are contained on a CD-rom disc that has been associated with the claims files. The Board has reviewed the SSA records located on the CD-rom disc and finds they do not contain clinical findings related to the disabilities rating issues on appeal. The Board notes that in an August 2007 statement to VA, the Veteran indicated that he had sought treatment at the Marion, Illinois VA Medical Center for constant right ear draining, and that he had been advised to wear hearing aids. However, as the Veteran did not indicate that he had undergone an audiological examination or had sought treatment for his residuals of a perforated right ear drum with related vertigo, a remand to obtain any outstanding records, if available, is not necessary as they would not be relevant in demonstrating an increase in severity of the service-connected right ear hearing loss disability and residuals of a perforated right ear drum with related vertigo. The Board has also reviewed the Veteran's paperless Virtual VA claims file, and has noted that there are no additional documents that are not already contained in the paper claims file. VA examined the Veteran in 2006, 2009 and 2010 to determine the current severity of his service-connected right ear hearing loss disability and residuals of a perforated right ear drum with related vertigo. Copies of these VA examination reports are contained in the claims files. With regard to the Veteran's audiological examinations, the examiners' uniformly concluded that the results were inconclusive due to poor testing and inter-testing reliability due to the Veteran having been unresponsive. The Board reminds the Veteran that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Therefore, in light of the above, the Board finds that VA has satisfied VA's duty to assist and a new VA audiological examination is not warranted. The Board further notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, 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. The May 2010 VA examiner indicated that the Veteran's daily activities (e.g., ambulating, feeding, bathing, driving, toileting, and grooming) were not affected by his service-connected right ear hearing loss disability. The May 2010 VA examiner also noted that the Veteran had difficulty with communication. Therefore, the Board finds that the May 2010 VA examiner's conclusions adequately address the criteria in Martinak. Thus, in view of the foregoing, the Board finds that a remand to obtain a new audiological examination would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); see also Soyini v. Derwinski, 1 Vet. App. 540 (1991). A May 2010 VA ear disease examination report contains clinical findings that are pertinent to the service-connected residuals of a perforated right ear drum with related vertigo. To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2010 VA ear disease examination obtained in this case is more than adequate, is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis in adjudicating the claim for a disability rating in excess of 30 percent for residuals of a perforated right ear drum with related vertigo. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4). In light of the foregoing, the Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the increased evaluation claims on appeal, such that no further notice or assistance is required to fulfill VA's duty to assist in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001), VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Merits Analysis The Veteran seeks a compensable rating for his service-connected right ear hearing loss disability. The RO has assigned a noncompensable rating to the service-connected right ear hearing loss under 38 C.F.R. § 4.85, DC 6100. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012), Tables VI, VIa, and VII. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86(b). When impaired hearing is service-connected in only one ear, as in this case, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I in order to determine the percentage evaluation from Table VII. See 38 C.F.R. § 4.85(f). Where, however, hearing loss in the non-service connected ear meets the criteria set forth in 38 C.F.R. § 3.385 (2012), compensation will be paid for the combination of service connected and non-service connected disability. 38 C.F.R. § 3.383 (2012). Under the provisions of 38 C.F.R. § 3.385, hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. The Veteran was afforded three VA audiological examinations in August 2006, March 2007 and May 2010 to determine the current severity of his service-connected sensorineural hearing loss of the right ear. The VA examiners, however, uniformly determined that the results of these examinations were inconclusive due to poor testing and inter-testing reliability due to the Veteran having been unresponsive. Each VA examiner was unable to make an appropriate diagnosis due to invalid results. The March 2007 VA audiologist indicated that she was unable to definitely state whether or not the Veteran had measurable hearing loss in his right ear because he might have also had "functional loss" in that ear. She further indicated that the Veteran had been seen by four different audiologists at the St. Louis, VA Medical Center (VAMC), and that each one had noted his poor reliability and inconsistent test results after re-instruction and testing. (See March 2007 VA audio examination report). The May 2010 VA audiologist indicated that the Veteran's responses to word recognition were inconsistent. She related that the Veteran did not respond to any stimuli in the right ear. (See May 2010 VA audio examination report). In short, the above-cited VA examinations do not provide results sufficient to grant the Veteran a compensable rating under the rating schedule due to the Veteran's unwillingness to cooperate with the examinations. 38 C.F.R. § 4.85. Thus, since the examinations are essentially non-evidence, the Board must rely on the remaining evidence of record. In this regard, the VA Medical Center (VAMC) outpatient treatment records do not provide audiological results sufficient to warrant a compensable disability rating. In making the above determinations, the Board has given careful consideration to the Veteran's own statements, including his statements that he made during his medical treatment and examinations. Generally, a layperson's statements are competent evidence of his symptomatology. However, under the circumstances of this claim for an increased rating for hearing loss, the appropriate rating is determined by a mechanical application of the rating code under 38 C.F.R. §§ 4.85, 4.86. While the Board acknowledges the Veteran is competent to assert his hearing impairment has worsened, he's not competent to state that such worsening arises to a compensable level under the applicable rating code. As was thoroughly explained above, VA audiological examinations were unable to determine the actual level of hearing impairment in the right ear through audiometric testing. Without reliable audiometric results VA is unable to assign a compensable disability rating for the Veteran's service-connected right ear hearing impairment as a matter of law. See generally Sabonis, 6 Vet. App. 426 (1994). Turning to credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, the Board finds that the Veteran's assertions are not reliable evidence demonstrating the severity of his service-connected right ear hearing loss symptomatology because the record contains several indications of the Veteran being unresponsive and a history of malingering (March 2007 VA audio examination report), as described by the VA examiners. Furthermore, despite the Veteran's allegations of the severity of his hearing, he has not been treated regularly by the VA for his right ear hearing loss disability. Thus, this evidence shows that his written statements have been internally inconsistent and contradicted by the record. For the reasons set forth above, the Board finds that the lay evidence of record is not competent or credible. Therefore, it is not probative evidence supporting the claim on appeal. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's right ear hearing loss disability has never met the requirements for a compensable disability rating since one year prior to filing his claim for increased compensation for this disability so the Board cannot "stage" this rating under Hart v. Mansfield, 21 Vet. App. 505 (2007). For all the above reasons, the preponderance of the evidence is against the Veteran's claim for a compensable rating for right ear hearing loss disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Residuals of Perforated Right Ear Drum The Veteran seeks a disability rating in excess of 30 percent for his service-connected residuals of a perforated right ear drum with related vertigo. The Veteran's residuals of a perforated right eardrum with related vertigo has been rated as 30 percent disabling under 38 C.F.R. § 4.87, DCs 6211-6204. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). The currently assigned 30 percent disability rating is the maximum schedular rating under Diagnostic Code 6204, the Diagnostic Code used to evaluate peripheral vestibular disorders. 38 C.F.R. § 4.87, Diagnostic Code 6204 (2012). The Veteran's representative, as well as the Board, notes that the Veteran could be entitled to an increased rating under DC 6205, the Diagnostic Code used to evaluate Meniere's syndrome. (See Veteran's representative's written argument to the Board, dated in May 2013, page (3)). Under Diagnostic Code 6205, a 60 percent rating is warranted for Meniere's syndrome manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205 (2012). When examined by VA in May 2010, the VA examiner specifically indicated that the Veteran did not have a history of Meniere's Syndrome. Even if the Veteran was found to have Meniere's syndrome, there is no indication that it is related to his service-connected residuals of a perforated right ear drum with related vertigo. In addition, while a July 2008 VA treatment record discloses that the Veteran experienced cerebellar gait problems, there is evidence that such gait problems are attributable, at least in part, to his non-service-connected low back disability. (See May 2010 VA ear disease examination report, reflecting that the Veteran's lumbar spine condition interfered with his normal gait). Overall, the evidence does not show that the Veteran has Meniere's syndrome, as required for ratings under DC 6205. As is noted in the Introduction section of this decision, as the Veteran complains of symptoms concerning his gait that may be associated with Meniere's Syndrome, such issue is being referred to the RO for appropriate action. In addition, the Board notes that the Veteran could also be entitled to a higher 50 percent rating under DC 6207 for loss of the auricles of both ears. 38 C.F.R. § 4.87, DC 6207 (2012). In May 2010, the VA examiner noted that both of the Veteran's auricles were normal with no tissue loss or deformity. (See May 2010 VA ear disease examination report). In light of the foregoing, a 30 percent disability rating for the service-connected residuals of a perforated eardrum with related vertigo is not warranted under any diagnostic code other than DC 6204. As already discussed, a rating higher than 30 percent is not available under that code. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430(1994). IV. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record reflects that the Veteran stopped working in 1988 when he was discharged by his employer. He has not since asserted that the disabilities in question preclude employment. Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. V. Extraschedular Consideration In evaluating the Veteran's claims for an increased rating for the service-connected right ear hearing loss disability and residuals of a perforated right eardrum with related vertigo, the Board also has considered whether he is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right ear hearing loss disability and residuals of a perforated right eardrum with related vertigo is inadequate. A comparison between the level of severity and symptomatology of this disability, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe these disabilities, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalizations for the disabilities on appeal. There is no persuasive evidence in the record to indicate that the service-connected right ear hearing loss disability and residuals of a perforated right eardrum with related vertigo would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2012) specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected right ear hearing loss disability and residuals of a perforated right eardrum with related vertigo have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER A compensable disability rating for right ear hearing loss disability is denied. A disability rating in excess of 30 percent for residuals of a perforate right eardrum with related vertigo is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs