Citation Nr: 1319681	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  09-22 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an increased (compensable) rating for bilateral hearing loss.

2.  Entitlement to a rating in excess of 20 percent for cervical spine stenosis with herniated nucleus pulposus.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel



INTRODUCTION

The Veteran served on active duty from December 1970 to May 1995.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO in St. Louis, Missouri, denied service connection for right femur arthritis, irritable colon syndrome, gastroesophageal reflux disease (GERD), and right shoulder tendon inflammation, and denied increased ratings for bilateral hearing loss and a cervical spine disability.  The Veteran was notified of this decision by the RO in December 2008, and he filed a notice of disagreement in January 2009.  In April 2009, the RO issued a statement of the case and, in June 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals).

In a December 2009 rating decision, the RO granted service connection for degenerative joint disease of the right shoulder, representing a full grant of the benefit sought for disability characterized as right shoulder tendon inflammation.

In June 2012, the Board recharacterized that portion of appeal involving a right femur disability (formerly listed as right femur arthritis) and continued the denial.  The Board then remanded the remaining issues, for further development to include whether or not the Veteran's irritable colon syndrome and GERD symptoms overlap with the Veteran's service-connected nonulcerative dyspepsia; and for contemporaneous examinations for the Veteran's service-connected bilateral hearing loss and cervical spine disability.

In April 2013, based on the March 2013 VA examination, the AMC determined that the Veteran's irritable bowel syndrome was already service-connected under the service-connected nonulcerative dyspepsia.  Furthermore, the AMC granted the Veteran's service connection claim for GERD.  Consequently, these issues are no longer before the Board.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim.

As a final preliminary matter, the Board notes that, in February 2013 correspondence, the AMC identified an unadjudicated issue that is pertinent to the RO.  Specifically, the AMC referred the issue of whether the Veteran's left upper extremity paresthesias and pain is due to nonservice-connected diabetes or service-connected cervical spine disability.  As there is no indication that the RO has addressed this matter, it is referred to the RO for appropriate action. 


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 

2.  Pertinent to the January 2008 claim for increase, May 2008 audiometric testing revealed no worse than Level IV in the right ear and Level II in the left ear.

3.  Pertinent to the January 2008 claim for increase, November 2012 audiometric testing revealed no worse than Level II hearing in the right ear and Level III hearing in the left ear.

4.  Pertinent to the January 2008 claim for increase, the Veteran's cervical spine stenosis with herniated nucleus pulposus has been characterized by complaints of pain and some limitation of motion, but he has had forward flexion of the cervical spine greater than 15 degrees and there is no ankylosis of the entire cervical spine; no associated separately ratable neurological impairment, or incapacitating episodes of disc disease has been shown.

5.  At no point pertinent to this appeal has either disability under consideration been shown to be so exceptional or unusual to warrant assignment of a higher rating on an extra-schedular basis. 



CONCLUSIONS OF LAW

1.  The criteria for an increased (compensable) rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A  (West 2002); 38 C.F.R. § 3.159, 3.321, 4.85, Diagnostic Code 6100 (2012).

2.  The criteria for a rating in excess of 20 percent for cervical spine stenosis with herniated nucleus pulposus are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes,  (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 
In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.   

In this appeal, a March 2008 pre-rating letter provided notice to the Veteran regarding what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  The letter also specifically informed the Veteran to submit any evidence in his possession pertinent to the claims on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).  In addition, the March 2008 letter also provided the Veteran with information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims herein decided.  Pertinent medical evidence associated with the claims file consists of service, VA, and private treatment records, and the reports of various VA examinations.  Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf.  The Board finds that no additional RO action to further develop the record in connection with either claim herein decided is warranted. 

In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). 

II.  Analysis 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  
Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

A.  Bilateral hearing loss

1.  Factual Background

The first medical evidence pertinent to the Veteran's claim for an increased disability rating for his bilateral hearing loss disability is the report of a May 2008 VA audiological evaluation.  During that evaluation, the Veteran reported, and the examiner noted, that his bilateral hearing loss resulted in an increase in difficulty with distinguishing words.  

On audiometric testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
45
65
90
LEFT
30
30
30
65
80

The average puretone thresholds were 60 decibels in the right ear and 51.25 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 90 percent in the left ear.  

The Veteran was afforded another VA audiological evaluation in November 2012.  During the evaluation, the Veteran again reported, and the examiner noted, that there was an increase in difficulty in understanding conversations.

On audiometric testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
70
105
LEFT
30
30
50
75
95

The average puretone thresholds were 65 decibels in the right ear and 62 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear.  

VA outpatient treatment records from the period on appeal also track the Veteran's complaints and treatment of his bilateral hearing loss; however, with the exception of the aforementioned VA audiological evaluations report, the additional records do not include any testing results..

2.  Analysis

Historically, the Veteran was granted service connection for bilateral hearing loss in an August 1995 rating decision.  A 0 percent ( noncompensable) rating was assigned effective June 1, 1995.  The noncompensable rating has since been continued.  The Veteran filed the instant claim for an increased rating in January 2008. 

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation.  Ratings for hearing impairment range from noncompensable to 100 percent based on 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 pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven 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. 

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. 

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a). 

When the pure tone threshold is 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 higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b). 

Considering the pertinent evidence in light of the above, the Board finds that the criteria for a compensable rating for the Veteran's bilateral hearing loss are not met at any point pertinent to the January 2008 claim for increase. 

Applying the criteria for evaluating hearing loss to the findings of the May 2008 audiometric evaluation results in designation of Level IV hearing in the right ear; and Level II hearing in the left ear.  Based on application of the reported findings to Tables VI and VII, these findings warrant a 0 percent, noncompensable percent rating under 38 C.F.R. § 4.85, DC 6100.

Applying the criteria for evaluating hearing loss to the findings of the November 2012 audiometric evaluation results in designation of Level II hearing in the right ear; and Level III hearing in the left ear.  Based on application of the reported findings to Tables VI and VII, these findings warrant a 0 percent, noncompensable rating under 38 C.F.R. § 4.85, DC 6100.

The Board points out that the results of audiometric testing obtained on each reliable evaluation do not reflect pure tone thresholds meeting the definition of an exceptional pattern of hearing impairment for either ear under 38 C.F.R. § 4.86.

The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss, however, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. 
See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.


B.  Cervical spine stenosis with herniated nucleus pulposus

1. Factual Background

The first medical evidence pertinent to the Veteran's claim for an increased disability rating for his cervical spine disability is the report of a May 2008 VA cervical spine examination.  At that time, the Veteran reported stiffness and pain in his neck that radiated up the back of his neck.  Upon physical inspection, the examiner observed a normal gait.  There were no abnormalities of the cervical spine, including swelling, sprain, or atrophy.  There was no evidence of radiating pain on movement with no evidence of muscle spasm.  There was no evidence of tenderness.  There was no ankylosis of the cervical spine.  Range of motion testing revealed forward flexion to 45 degrees, extension to 45 degrees, right and left lateral flexion to 45 degrees and 40 degrees respectively; and left and right lateral rotation each to 70 degrees.  Motor function and sensory function was intact for both upper extremities. An X-ray reflected degenerative disc disease with bilateral neural foraminal narrowing at C3-4, C4-5, C5-6. 

The Veteran was afforded another VA cervical spine examination in November 2012.  At that time, he complained of constant neck pain, with flare-ups three times a week, and occasional left upper extremity numbness and tingling lasting 2-3 minutes and spontaneously dissipating on its own.  He noted that he has been working at the Department of Justice as a FBI-management program analyst since 2006.  Objectively, on inspection of the neck there was some pain on movement.  Range of motion testing revealed flexion to 40 degrees, extension to 35 degrees, right and left lateral flexion each to 35 and 30 degrees respectively, right lateral rotation to 70 degrees, and left lateral rotation to 70 degrees.  The Veteran was able to perform repetitive-use testing with 3 repetitions.  There was no cervical spine tenderness or pain upon palpation.  The Veteran did not exhibit guarding or muscle spasm of the cervical spine.  Muscle testing was normal.  The Veteran reported that he felt less sensation on his entire left upper extremity.  Peripheral nerve examination was essentially normal.  Specifically, there was no incomplete or complete paralysis of either of the Veteran's upper extremities.

VA outpatient treatment records from the period on appeal also track the Veteran's intermittent complaints and treatment of his cervical spine disability.  With the exception of the aforementioned VA examinations, the additional records do not record range of motion testing.

2.  Analysis

Historically, by rating action of August 1995, the RO granted service connection for cervical stenosis with herniated nucleus pulposus, and assigned a 10 percent rating under Diagnostic Code 5293-5290.  In an October 2000 rating action, pursuant to a September 2000 Board decision, the RO assigned a 20 percent disability rating under former Code 5290 (for limited motion).  The Veteran filed his current claim for an increased rating in January 2008.  The November 2008 rating decision continued the 20 percent rating for his cervical spine disability under revised Code 5237 (for lumbosacral strain).

Regardless of the actual diagnostic code designation, as indicated, the medical evidence reflects that the Veteran has disc disease of the lumbar spine.  Under the criteria in effect since September 2003, intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees.  A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less, or for favorable ankylosis of the entire cervical spine.  A rating of 40 percent is awarded for unfavorable ankylosis of the entire cervical spine.  A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine.  These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  See 38 C.F.R. § 4.71a. 

Under the rating schedule, forward flexion and extension each to 45 degrees, left and right lateral flexion each to 45 degrees, and left and right lateral rotation to 80 degrees, are considered normal range of motion of the cervical spine.  38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. 

According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.



The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40 , 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996). 

Considering the pertinent evidence in light of governing legal authority, the Board finds that, pertinent to the January 2008 claim for increase, the Veteran's service-connected cervical spine disability has more nearly approximated the criteria for the currently assigned 20 percent rating.  As explained below, the characteristics of Veteran's cervical spine disability have not met the 20 percent criteria, yet alone the criteria for the next higher rating under any applicable criteria. 

As noted above, under the General Rating Formula, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine.  Here, there is no evidence of any ankylosis of the entire cervical spine.  Additionally, there is no evidence that forward flexion of the Veteran's cervical spine has been limited to 15 degrees or less.  As noted above, the VA examinations, show that the Veteran's forward flexion has consistently been 40 degrees or higher.  Thus, the evidence does not demonstrate forward flexion of the cervical spine to 15 degrees or less, or that there is favorable ankylosis of the entire cervical spine.  There is no other medical evidence suggesting that this is the case, even when taking into account any additional functional impairment due to pain, fatigue, or lack of endurance. 

The Board points out that, under Note (1) of the General Rating Formula, VA must also consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected cervical spine disability.  However, such would not be the case here.  Although the Veteran has subjective complaints of numbness and pain in the left upper extremity, there is no objective evidence of left upper extremity neuropathy, and while there is a diagnosis of left upper extremity neuropathy, there is no evidence of a left upper extremity disability that would be compensable, as the peripheral examination was essentially normal.  On physical examination, neither upper extremities revealed incomplete or complete paralysis.  Since there has been no objective evidence of compensable neurological impairment attributable to cervical spine disability, the Board finds that there is no basis for separate, compensable ratings under this provision. 

Further, there is no medical evidence that the Veteran's service-connected cervical spine disability would warrant a rating in excess of 20 percent if rated on the basis of incapacitating episodes, 

The medical evidence here does not indicate any bed rest prescribed by a physician, let alone for a total period of at least four weeks in the a 12-month period, as required for a higher rating under the above-noted criteria.  In the absence of any medical evidence of bedrest, prescribed by a physician, for at least 4 weeks during the past 12 months, the criteria for an increased rating under the Formula for Rating IVDS Based on Incapacitating Episodes are also not met.  

As a final point, the Board notes that, the Veteran's own assertions advanced in written statements, have been considered.  However, the Board finds that the lay assertions made in support of his claim for a higher schedular rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's cervical spine disability.  See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding, "a layperson is generally not capable of opining on matters requiring medical knowledge.").  The Board has fully considered the statements from the Veteran regarding his symptomatology; however, as indicated above, the persuasive evidence indicates that the Veteran's cervical spine disability is consistent with the presently assigned 20 percent rating.

C.  Both Claims

The above determinations are based upon consideration of applicable provisions of VA's rating schedule.  Additionally, the Board finds that there is no showing that, at any point pertinent to the January 2008 claim for increase, either disability under consideration has reflected so exceptional or unusual a disability picture as to render inadequate the schedular criteria for rating the disability and to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (cited in the April 2009 SOC).

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. 
§ 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for such disabilities.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996).  Thun v. Peake, 22 Vet. App. 111   (2008). 

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra. 

In this case, the Board finds that schedular criteria are adequate to rate each of the disabilities under consideration at all pertinent points.  The rating schedule fully contemplates the described manifestations , and provides for ratings higher than that assigned based on more significant functional impairment.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate either the  cervical spine or bilateral hearing loss disability.  

Even if, given the mechanical nature of deriving ratings for hearing loss, the Board was to find that rating schedule does not contemplate the functional effects of hearing impairment, in this case, the Veteran has only alleged an increase in difficulty understanding conversations-a functional effect typically associated with any hearing loss.  Accordingly, such assertion, alone, is not reflective of an exceptional disability picture that renders the schedular criteria for rating the Veteran's hearing loss inadequate.. 

Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met with respect to either claim.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board also notes, that, in certain circumstances, a claim for TDIU may be considered a component of a claim for higher rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU may be granted where a Veteran's service connected disability(ies) is/are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2012).  Here, however,  the Veteran is currently employed (as he reported during the November 2012 VA examination).  Moreover, he has not expressly indicated, nor has the record shown, that his service-connected disabilities have effectively render him unemployable.  As such, and on these facts, the Board finds that no TDIU claim, pursuant to Rice, has been raised in connection with either claim for higher rating currently on appeal.

For all the foregoing reasons, the Board finds that there is no basis for staged ratings for either the Veteran's cervical spine disability or his bilateral hearing loss pursuant to Hart (cited above), and that each claim for a higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for each disability, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An increased (compensable) rating for bilateral hearing loss is denied.

A rating in excess of 20 percent for cervical spine stenosis with herniated nucleus pulposus is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs