Citation Nr: 1322299 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-06 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to restoration of a 40 percent evaluation for bilateral hearing loss. 2. Entitlement to a compensable disability evaluation for bilateral hearing loss as of January 1, 2007; in excess of 10 percent as of September 23, 2011; and, in excess of 40 percent as of April 18, 2012. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1950 to January 1952, to include combat duty in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which reduced a 40 percent rating for bilateral hearing loss to noncompensably disabling. In a February 2012 rating decision the RO granted a 10 percent rating for the Veteran's bilateral hearing loss from September 23, 2011. In a May 2013 rating decision the RO increased the 10 percent rating to 40 percent from April 18, 2012. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the increased rating claim remains in appellate status. The Board remanded the claims in March and July 2009, July and August 2010, and April 2012 for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a May 2006 rating decision, the RO proposed a reduction for the bilateral hearing loss disability evaluation based on evidence showing that the disability had improved, and the Veteran was notified that same month of the proposed reduction. 2. An October 2006 rating decision reduced the 40 percent schedular evaluation assigned for bilateral hearing loss disability to 0 percent, effective January 1, 2007, in compliance with the procedural requirements of 38 C.F.R. § 3.105(e). 3. The 40 percent rating had been assigned for less than five years; however, the clinical evidence of record at the time of the October 2006 rating action demonstrated sustained material improvement in the Veteran's bilateral hearing loss disability under the ordinary conditions of life, and failed to show that the criteria supporting the 40 percent rating were met as of January 1, 2007. The RO complied with the procedural requirements in reducing the assigned rating for the Veteran's service-connected bilateral hearing loss effective from January 1, 2007. 4. During the appeal period, from January 1, 2007, until September 23, 2011, bilateral hearing loss disability has been manifested, at worst, by Level III hearing loss in the right ear and Level III in the left ear. 5. During the appeal period, from September 23, 2011, until April 18, 2012, bilateral hearing loss disability has been manifested, at worst, by Level IV hearing loss in the right ear and Level V in the left ear. 6. During the appeal period, from April 18, 2012, bilateral hearing loss disability has been manifested, at worst, by Level V hearing loss in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for the restoration of the 40 percent schedular disability evaluation for the Veteran's bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2012). 2. The criteria for a compensable disability evaluation for bilateral hearing loss as of January 1, 2007; an evaluation in excess of 10 percent as of September 23, 2011; and, in excess of 40 percent as of April 18, 2012, for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board notes that VCAA does not apply for issues involving a rating reduction, as there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), that are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). The RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond in a May 2006 letter. Regarding the issue of an increased rating for a bilateral hearing loss disorder, proper VCAA notice must inform the claimant of any information and 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) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with letters in July and August 2005 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. The letters was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. II. Factual Background In a June 2003 treatment record from Jane W. Porter, M.A., it was reported that the Veteran's puretone thresholds revealed mild to profound sensorineural hearing loss in the right ear and moderate to profound sensorineural hearing loss in the left ear. Average pure tone thresholds, in decibels (dB), were 63.8 dB for the right ear and 73.1 dB for the left ear. Speech audiometry revealed speech recognition scores of 70 percent in the right ear and 68 percent in the left ear. In a June 2003 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 35 45 80 85 LEFT - 35 45 75 80 Average pure tone thresholds, in decibels (dB), were 61 dB for the right ear and 59 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 76 percent in the right ear and 76 percent in the left ear. In a July 2003 rating decision, the disability was increased to a 40 percent rating effective May 5, 2003. The increased rating was based on the RO's findings in the private audiological examination dated in June 2003. The Board notes that it does not appear the RO considered the June 2003 VA audiological examination. In a September 2005 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 55 85 95 LEFT 30 40 60 85 85 Average pure tone thresholds, in decibels (dB), were 68 dB for the right ear and 68 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 84 percent in the right ear and 72 percent in the left ear. The examiner noted a bilateral mild to severe sensorineural hearing loss. He further noted that the Veteran's current employment, social, and daily activities functioning should not be adversely affected by his bilateral hearing disability. In a September 2005 letter from David M. Chibal, M.D., Ph.D., he noted that the Veteran had moderate to profound bilateral sensorineural hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 75 105 110 LEFT 65 85 100 110 Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 92 percent in the left ear. He noted that tympanometry results could not be achieved due to difficulty obtaining a seal. By rating decisions in October and November 2005, the 40 percent rating for bilateral hearing loss was continued. The RO noted that improvement in the Veteran's bilateral hearing was indicated. It was also noted that the Veteran's hearing disorder was subject to a future review examination. In a May 2006 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 85 90 LEFT 30 40 50 80 85 Average pure tone thresholds, in decibels (dB), were 65 dB for the right ear and 64 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 96 percent in the right ear and 92 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. In May 17, 2006, the Veteran was issued notice of a proposed rating reduction. A hearing was scheduled for August 2006. The Veteran cancelled the hearing and a VA examination was scheduled instead. In a September 2006 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 85 90 LEFT 30 40 50 80 80 Average pure tone thresholds, in decibels (dB), were 65 dB for the right ear and 63 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 92 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. After a review of the claims file the examiner noted that a private audiological examination dated in September 2005 appeared to have been invalid. He was again tested in June 2006 by a different audiologist. This examination revealed bilateral mild to profound sensorineural hearing loss. These results however were significantly better than the prior September 2005 results. The June 2006 audiologist also indicated that she had to instruct the Veteran regarding malingering during the examination. The examiner summarized that it appeared the 40 percent rating had been based on a private September 2005 audiometric testing which appeared invalid and not done in compliance with VA standards. The June 2006 audiologist's report was very similar to the VA examinations. These noted that the Veteran's hearing appeared to be stable. The only aberration appeared to have been the private September 2005 audiology report. The Veteran submitted a July 2006 report from Judith A. Caudle, M.S., an audiologist who noted that she had tested the Veteran and determined that he had 88 percent word recognition bilaterally using the Maryland CNC lists. Pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 75 90 LEFT 40 50 75 85 Average pure tone thresholds were 60 dB for the right ear and 63 dB for the left ear. Her notes indicated that she "re-instructed-malingers"; however, the audiological testing conducted by Ms. Caudle, did not show that the Veteran had exceptional patterns of hearing loss pursuant to 38 C.F.R. § 4.86(a). By rating action in October 2006 the RO reduced the bilateral hearing loss rating to a noncompensable level. The Veteran disagreed with the October 2006 rating decision contending that improvement had not been shown in his service-connected bilateral hearing loss to warrant reduction of the 40 percent disability rating. He also contends that, in any event, the evaluation now assigned the disorder does not accurately reflect the severity of the disability. In a May 2007 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 85 95 LEFT 35 45 55 75 85 Average pure tone thresholds, in decibels (dB), were 68 dB for the right ear and 65 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 84 percent in the right ear and 92 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. In an April 2009 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 80 95 LEFT 35 40 55 70 80 Average pure tone thresholds, in decibels (dB), were 66 dB for the right ear and 61 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 92 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. In an October 2009 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 95 100 LEFT 40 50 65 95 95 Average pure tone thresholds, in decibels (dB), were 76 dB for the right ear and 76 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 84 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. In an August 2010 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 65 90 100 LEFT 40 50 65 85 80 Average pure tone thresholds, in decibels (dB), were 76 dB for the right ear and 70 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 88 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. In September and December 2010 addendums the examiner noted that a disability such as a hearing loss does not render an individual unemployable. Gainful employment should be possible with state of the art amplification, assistive techniques, and/or vocational rehabilitation, particularly with the Americans with disabilities Act. The Veteran reported that in the past he had difficulty with continuing education, lectures, and telephone and with appropriate amplification and assistive devices the Veteran should be able to function in his occupation. In a January 2011 addendum the examiner further attempted to explain that results from the June 2003 VA examination were incorrectly transcribed; or that it was based on a non conforming private audiological examination. In a September 2011 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 60 80 95 LEFT 40 50 70 85 90 Average pure tone thresholds, in decibels (dB), were 70 dB for the right ear and 74 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 80 percent in the right ear and 76 percent in the left ear. The examiner noted a bilateral mild to profound sensorineural hearing loss. The examiner noted that the Veteran's hearing loss impacted on his ordinary conditions of daily living include his ability to work. He had a very significant hearing loss, however he reported without his hearing aids and conversed freely with visual cues in the sound suite at an average conversational speech level. He had fair to good word recognition ability without aid of visual ques. He had been an optometrist for 55 years. In his work environment he should have little if any difficulty hearing and understanding to perform his professional as he was in a quiet environment and would have ability to utilize visual cues in conversation with his patients. In a private April 2012 audiological examination by Gloria Buckley, MS, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 75 100 100 LEFT 55 65 75 95 95 Average pure tone thresholds, in decibels (dB), were 84 dB for the right ear and 83 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 68 percent in both ears. The examiner noted the puretone results were very similar to a previous private audiological examination in September 2005; however, speech recognition at that time was 88 percent in the right ear and 92 percent in the left. The examiner noted that the Veteran was severely handicapped by his hearing loss and speech recognition skill. He would have difficulty determining the direction of sound and speech. He would have difficulty understanding speech in most situations. In a May 2012 VA examination, the examiner noted the Veteran was first seen by VA in 1998. He was examined in 2003, 2005, 2006, and today. He was seen by private audiologists in 2006 and 2007 with similar results to his previous VA examinations. The examiner reviewed the conflicting medical evidence noting that the rating of 40 percent was based on an evaluation of June 27, 2003. When reviewing the "reason for the decision" and the evaluation of June 27, 2003, the results were not recorded correctly on the decision portion. Audiological data from the June 27, 200,3 evaluation recorded in the December 2005 rating decision was shown as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 55 75 100 105 LEFT - 75 75 90 100 The correct data from the June 27, 2003 examination was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 35 45 80 85 LEFT - 35 45 75 80 The examiner noted that the Veteran's hearing threshold had remained essentially unchanged since 2003. The examiner again noted that the Veteran had a very significant hearing loss, however it was noted that he reported without his hearing aids and conversed freely with visual cues in the sound suite at an average conversational speech level. A disability such as a hearing loss does not render an individual unemployable. Gainful employment should be possible with state of the art amplification assistive technology and or vocational rehabilitation particularly within the confines of the Americans with Disabilities Act. Finally, a May 2013 medical expert opinion was received to resolve the conflicting medical evidence of record. The examiner noted that his review was based upon a review of the claims file, electronic medical records, the various VA examinations over the past ten years, and review of the medical literature. He noted that in his opinion all of the Veteran's hearing evaluations were valid and the differences reflected variations that occurred as a result of equipment and human behavior. So to get the fairest assessment of the Veteran's hearing disability, the examiner recommended averaging the values from similar time frames. Regarding the impact of the Veteran's service connected hearing loss. It was the examiner's opinion that "it is less likely than not" (less than 50 percent probability), that the Veteran is individually unemployable, unable to obtain and maintain substantially gainful employment based soley upon his hearing loss and tinnitus. With regards to typical employment tasks based upon both private and VA audiology results, we know that the Veteran was an experienced optometrist. In this role he must communicate with his patients. III. Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). VA must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability. 38 C.F.R. § 4.2 (2012). VA will also resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3 (2012). Where there is a question as to which of two ratings applies, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating the appropriate schedular rating, the Board will only consider the factors as enumerated in the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of hearing loss is determined by comparison of audiometric test results with specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110 (2012). Ratings for bilateral defective hearing range from 0 percent 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 1000, 2000, 3000, and 4000 Hertz. The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, in order to rate the degree of disability from bilateral service-connected defective hearing. The ratings derived from the Schedule are intended to make proper allowance for improvement by hearing aids. In addition, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (2012). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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. 38 C.F.R. § 4.86 (2012). Further, when the average puretone threshold is 30 decibels 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 (2012). Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. IV. Rating Reduction Where a disability rating has been continued for at least 5 years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344(a). Likewise, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). In this instance, however, the 40 percent rating in question was not in effect for 5 years or more, and the preceding paragraphs (a) and (b) do not apply, based upon a disability which has not become stabilized and is likely to improve. Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant a reduction in rating. 38 C.F.R. § 3.344(c). The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) as required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). The bilateral hearing loss was increased from 0 percent to 40 percent disabling, effective May 5, 2003, in a July 2003 rating decision. In a May 2006 rating decision, the RO proposed to reduce the Veteran's bilateral hearing loss from 40 percent to 0 percent. In an October 2006 rating decision, the subject of this appeal, the reduction of Veteran's bilateral hearing loss evaluation to 0 percent, effective January 1, 2007, was completed. The Board notes that the provisions of 38 C.F.R. § 3.344(a) and (b), which govern reductions of rating in effect for five or more years, do not apply in this case because the initial 40 percent rating was effective from May 5, 2003, which is less than four years from the effective date of the reduction from 40 percent to 0 percent on January 1, 2007. The Board finds that the RO followed proper procedure in reducing the assigned rating for the Veteran's service-connected bilateral hearing loss. He underwent VA medical examination in June 2003, September 2005, and March 2006. A May 2006 rating decision proposed to reduce the assigned rating. The notification letter for that rating decision informed him that he had 60 days in which to submit evidence, and of his right to request a predetermination hearing. He submitted additional evidence and indicated his disagreement with the proposed rating, he requested a predetermination hearing, but cancelled it and requested another VA examination (VA examination in September 2006) in lieu of the hearing. Thereafter, the proposed reduction was effectuated by the October 2006 rating decision, effective from January 1, 2007, which is consistent with the requirement that effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. The Board finds that the RO followed proper procedure, and the Veteran is not entitled to restoration of the 40 percent rating. Therefore, the Board must now address whether the competent evidence warranted a reduction in the assigned rating. Further, the Board will then address the matter to the extent the Veteran contends that a compensable rating is warranted since January 1, 2007; a rating in excess of 10 percent since September 23, 2011; and, in excess of 40 percent since April 18, 2012. In applying the Tables in this case, and considering the provisions for exceptional patterns of hearing loss, the Board notes that application of the results from the June 2003 VA audio examination corresponds to Level IV hearing for both ears on Table VI, which in turn corresponds to a 10 percent rating on Table VII. The Board notes that application of the results from the June 2003 private audio examination corresponds to approximately Level VII hearing for both ears on Table VIA, which in turn corresponds to a 40 percent rating on Table VII. The results of the September 2005 VA audio examination corresponds to Level III hearing for the right ear and Level VI for the left ear on Table VI, which in turn corresponds to a 10 percent rating on Table VII. The results of the May 2006 VA audio examination corresponds to Level II hearing for both ears on Table VI, which in turn corresponds to a 0 percent rating on Table VII. The results of the September 2006 VA audio examination corresponds to Level III hearing for the right ear and Level II for the left ear on Table VI, which in turn corresponds to a 0 percent rating on Table VII. See 38 C.F.R. §§ 4.85, 4.86. The Board finds that there is measureable improvement in this case and that the reduction is proper. The Veteran's hearing test results demonstrated significant improvement in his bilateral hearing from the June 2003 examinations, and the September 2005 VA audio examination. The improved results as shown on the May and September 2006 VA audio examinations commensurate to a Level II-III hearing for the right ear and Level II for the left ear on Table VI, rather than Level IV-VII hearing for both ears, which in turn corresponds to a 10 to 40 percent rating as shown in the previous June 2003 VA and private examinations. Although the Board acknowledges the Veteran's statements and that he believes that there has been a subjective worsening of his condition and that his ability to hear has actually decreased rather than increased, the Board notes that the objective data in this case demonstrates improvement. In fact, as shown the evaluation from the latter audiometric testing meets the criteria for a 0 percent rating, although the results from the earlier audiometric testing met the criteria for the higher rating of 40 percent. The Board is cognizant of the Veteran's contentions concerning his difficulty in hearing, and he described the functional impact of such in his statements in support of his claim, and in his VA examinations. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The assignment, however, of disability ratings for hearing impairment is derived from a mechanical formula. That mechanical application unfortunately does not yield an evaluation in excess of 0 percent for the Veteran's level of hearing loss during the relevant reduction period on appeal at this time. Accordingly, the Board finds that the reduction in the Veteran's bilateral hearing loss evaluation from 40 percent to 0 percent disabling, effective January 1, 2007, was proper in this case; the claim to restore the 40 percent evaluation must be denied. See 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code 6100. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). V. a. January 1, 2007, to September 23, 2011 In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his bilateral hearing loss for the period from January 1, 2007, to September 23, 2011, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. In this regard, the results of the May 2007 VA audio examination corresponds to Level III hearing for the right ear and Level II for the left ear on Table VI, which in turn corresponds to a 0 percent rating on Table VII. The results of the April 2009 VA audio examination corresponds to Level III hearing for the right ear and Level II for the left ear on Table VI, which in turn corresponds to a 0 percent rating on Table VII. The results of the October 2009 VA audio examination corresponds to Level III hearing for both ears on Table VI, which in turn corresponds to a 0 percent rating on Table VII. Finally, the results of the August 2010 VA audio examination corresponds to Level III hearing for both ears on Table VI, which in turn corresponds to a 0 percent rating on Table VII. The Board notes that from January 1, 2007, to September 23, 2011, evidence of record simply does not show that a compensable rating was warranted for bilateral hearing loss. The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. The Veteran's disability, however, did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. As such, it is apparent that the currently assigned noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). Thus, as the criteria for a compensable evaluation for the Veteran's service-connected bilateral hearing loss for the period from January 1, 2007, to September 23, 2011, have not been met, the appeal is denied. In essence, the preponderance of the evidence is against a compensable evaluation for the Veteran's bilateral hearing loss from January 1, 2007, to September 23, 2011. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. As such, entitlement to a compensable evaluation for service-connected bilateral hearing loss from January 1, 2007, to September 23, 2011, must be denied. b. September 23, 2011, through April 18, 2012 In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 10 percent for his bilateral hearing loss for the period from September 23, 2011, through April 18, 2012, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. In this regard, the results of the September 2011 VA audio examination corresponds to Level IV hearing for the right ear and Level V for the left ear on Table VI, which in turn corresponds to a 10 percent rating on Table VII. The Board notes that from September 23, 2011, through April 18, 2012, evidence of record simply does not show that an evaluation in excess of 10 percent was warranted for bilateral hearing loss. The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. The Veteran's disability, however, did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. As such, it is apparent that the currently assigned 10 percent disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). Thus, as the criteria for an evaluation in excess of 10 percent for the Veteran's service-connected bilateral hearing loss for the period from September 23, 2011, through April 18, 2012, have not been met, the appeal is denied. In essence, the preponderance of the evidence is against an evaluation greater than 10 percent for the Veteran's bilateral hearing loss from September 23, 2011, through April 18, 2012. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. As such, entitlement to an evaluation in excess of 10 percent for service-connected bilateral hearing loss from September 23, 2011, through April 18, 2012, must be denied. c. Since April 18, 2012 In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 40 percent for his bilateral hearing loss for the period from April 18, 2012, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. In this regard, the results of the April 18, 2012, private audio examination upon which the increase rating to 40 percent was based upon, corresponds to Level VII hearing for both ears on Table VI, which in turn corresponds to a 40 percent rating on Table VII. The Board notes that from April 18, 2012, evidence of record simply does not show that an evaluation in excess of 40 percent was warranted for bilateral hearing loss. The Board has also considered whether an evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. The Veteran met the requirements of 38 C.F.R. § 4.86, the Veteran's disability is afforded the same rating under Table VIA. In this regard, the Veteran did have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz. In this regard, the results of the April 18, 2012 private audio examination would correspond to Level VIII hearing for the right ear and Level VII hearing for the left on Table VIA. This still would warrant a 40 percent rating. A higher rating is not warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. §§ 4.85 or 4.86(a). Thus, as the criteria for an evaluation in excess of 40 percent for the Veteran's service-connected bilateral hearing loss for the period from April 18, 2012, have not been met, the appeal is denied. In essence, the preponderance of the evidence is against an evaluation in excess of 40 percent for the Veteran's bilateral hearing loss from April 18, 2012. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. As such, entitlement to an evaluation in excess of 40 percent for service-connected bilateral hearing loss from April 18, 2012, must be denied. In summary, the Board again notes the extensive developmental history of this case and the numerous remands by the Board (March 2009, July 2009, July 2010, August 2011, and April 2012) in order to reexamine the Veteran and to address the functional effects on his ability to work and on his activities of daily living. In addition, the examiners were asked to discuss the wide disparity between private and VA audiology examinations. The remands were an attempt to have the examiners offer an opinion which considered the factors established in the U.S. Court of Appeals for Veterans Claims (Court) decision of Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This has been addressed and accomplished by the medical expert in May 2012. The Board finds that there is substantial functional impact on his usual occupation as an optometrist. The expert noted on Page 32 of his report that, "the Veteran was good at augmenting his word recognition with lip reading, if he can see the speaker's mouth." This would cause some problems with his job as an optometrist. He was more troubled in auditoriums or large room settings. This would not impact his employment, but would degrade the quality of his daily life. For all the foregoing reasons, the Veteran's claims for entitlement to a compensable disability evaluation for bilateral hearing loss since January 1, 2007; in excess of 10 percent since September 23, 2011; and, in excess of 40 percent since April 18, 2012, for bilateral hearing loss must be denied. The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VI. Extraschedular consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). Because, however, the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate. The Veteran's service-connected bilateral hearing loss is evaluated as impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the levels of occupational and social impairment caused by this disability. During the various appeal periods, evidence of record shows that the Veteran's bilateral hearing loss has been manifested by no more than Level III hearing for both ears on Table VI, which in turn corresponds to a 0 percent rating on Table VII since January 1, 2007; no more than Level IV hearing for the right ear and Level V for the left ear on Table VI, since September 23, 2011; and, no more than Level V hearing for both ears on Tables VI and VIa, since April 18, 2012. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a noncompensable disability rating since January 1, 2007; no more than a 10 percent rating since September 23, 2011; and, no more than a 40 percent rating since April 18, 2012. Increased ratings are provided for by the regulations for certain manifestations of bilateral hearing loss, but the medical evidence demonstrates that those manifestations are not present. The numerous VA and private examinations from June 2003 through May 2012 found that the Veteran's service-connected hearing disability had no significant effects on his occupation or daily activities until the most recent April 2012 private examination which found severe difficulty with work and social functioning. The Veteran, however, was still employed and was socially active although having difficulty understanding speech or conversing when in areas with background noise. The criteria for the noncompensable disability rating since January 1, 2007; 10 percent rating since September 23, 2011; and, 40 percent rating since April 18, 2012, reasonably describe the Veteran's disability level and symptomatology throughout the pendency of this appeal. Consequently, the Board concludes that the scheduler evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749(1996). Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his service-connected bilateral hearing loss; therefore, the question of entitlement to a total disability rating based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER The reduction of the rating for service-connected bilateral hearing loss from 40 percent to 0 percent was proper, and the benefit sought on appeal is denied. Entitlement to a compensable rating for service-connected hearing loss since January 1, 2007, until September 23, 2011, is denied. Entitlement to a rating in excess of 10 percent for service-connected hearing loss from September 23, 2011, until April 18, 2012, is denied. Entitlement to a rating in excess of 40 percent for service-connected hearing loss from April 18, 2012, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs