Citation Nr: 1320778 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-19 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an extraschedular rating for a left ear hearing loss since March 3, 2008, pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran was afforded a videoconference hearing in March 2008. This appeal was previously before the Board in September 2011 at which time it was remanded for referral to VA's Director of Compensation and Pension Service or Under Secretary for Benefits. In November 2011 an opinion was obtained from the Director of Compensation and Pension Service. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). As noted in September 2011, the issue of entitlement to service connection for a sleep disorder, to include as secondary to tinnitus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In May 2013 the Veteran's representative indicated that a new claim of entitlement to an increased schedular rating for left ear hearing loss disability should be inferred from the March 2013 VA examination results. Given that the question of entitlement to an increased schedular evaluation was addressed in the Board's September 2011 remand, and given that the September 2011 decision is final, 38 U.S.C.A. § 7104 (West 2002), these assertions raise a new claim over which the Board may not exercise jurisdiction. As such, the matter is referred to the RO for appropriate action. FINDING OF FACT The Veteran's service-connected left ear disability since March 3, 2008, does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular rating for the Veteran's left ear hearing loss disability, since March 3, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321(b)(1)(2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated September 2006 of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. The November 2010 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. A November 2011 opinion by the Director of Compensation and Pension Services was obtained. There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Therefore, the case is ready for adjudication. Extraschedular Rating VA regulations allow for an extraschedular disability rating for exceptional cases where schedular evaluations are found to be inadequate. See 38 C.F.R. § 3.321(b) (1) (2012); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 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) (2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Veteran essentially argues that an extraschedular rating is warranted because his service-connected left ear hearing loss disability results in marked interference with employment, and manifests to a severity that is not contemplated by the schedular criteria. The Board observes that by way of history, there is a July 2007 treatment document indicating that his hearing aid should not be worn at work. At his March 2008 hearing, the Veteran and his wife indicated that the Veteran had been advised not to wear his hearing aid at work due to the noise environment at his workplace. This, however, resulted in difficulties to include hearing his supervisors' instructions. The Veteran and his wife conveyed that the hearing difficulty could be misinterpreted as the Veteran ignoring his supervisors. In addition, the Veteran and his wife explained that attaining documentation from the supervisors attesting to the Veteran's difficulties was not easily accomplished in a work-culture that expects such notes to be treated as favors doled out for future recompense. In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether a claimant's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not warranted. If, however, the claimant's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's claim was referred to the Director of the Compensation and Pension Service for extraschedular consideration. In November 2011, the Director concluded that the Veteran's left ear hearing loss disability did not warrant an extraschedular rating. The Director found that no evidence had been submitted from the appellant's employer to substantiate the contention that the Veteran's left ear hearing loss interfered with work. The Director noted that although the Veteran had hearing loss, the evidence did not show that his hearing loss disability had resulted in marked interference with employment. The Director concluded that the Veteran's limitations, such as difficulty performing routine functions requiring good hearing and interactions with others did not demonstrate an unusual or exceptional disability pattern that rendered the regular rating criteria impractical. Although the issue of entitlement to an extraschedular rating was referred to the Director of Compensation and Pension, the Board must still review whether the Veteran's disability picture is contemplated by the rating schedule and, if not, whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. These include marked interference with employment and frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The evidence of record, including the pertinent medical evidence, supports the Director's determination that an extraschedular rating is not warranted. The November 2010 audiological examination found reduced hearing, which is contemplated by the assigned rating under the Rating Schedule. Further, for an extraschedular rating to be warranted, the left ear hearing loss alone must have characteristics taking the disability picture outside the governing norms. Such a picture is not established by the record. The record reflects that the Veteran has difficulty hearing, and has been advised not to wear his hearing aids around high pitched noises, to include in his employment as a forklift operator. The opinions of record, do not reflect that the Veteran's left ear hearing loss disability is so severe as to cause marked interference with employment. Treatment records do not establish a pattern of hospitalization due to his left ear hearing loss disability. There are not other indicators that the Veteran's disability is exceptional. All indications are that the Veteran is not substantially precluded from carrying out occupational duties, and remains gainfully employed. Nor has there been substantial outside medical treatment or other compelling factors which brings this case within the realm of exceptional disability. Ultimately, the evidence of record preponderates against finding that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. Although the Veteran's clinical picture evidences difficulty hearing, no clinical or other factor takes the disability outside the usual rating criteria. The rating criteria contemplate the extent of his hearing loss, to include functional effects to create a disability picture. The Board finds that the evidence does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the Rating Schedule, and assignment of an extraschedular evaluation is not warranted. The preponderance of the evidence is thus against his claim for benefits on an extraschedular basis. There is no doubt to be resolved, and an extraschedular rating is not for assignment. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an extraschedular rating for a left ear hearing loss since March 3, 2008, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs