Citation Nr: 1325099	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  06-12 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for bilateral hearing loss disability from December 30, 2004, to January 18, 2010.

2.  Entitlement to a rating in excess of 40 percent for bilateral hearing loss disability from January 19, 2010, to January 30, 2013.

3.  Entitlement to a rating in excess of 70 percent for bilateral hearing loss disability from January 31, 2013, to the present.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran had active service from June 1963 to April 1966.  He also had unverified duty in the South Carolina National Guard and Army Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

The Veteran and his wife testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO in August 2007.  A transcript of the hearing has been associated with the claims file.

The Board remanded the case to the RO, via the Appeals Management Center (AMC), in November 2007, October 2010 and September 2012 for further development and adjudicative action.  

The following decision is based on review of the Veteran's claims file in addition to his Virtual VA (VVA) file or "eFolder." 

In a March 2013 rating decision, on remand, the Appeals Management Center granted service connection for posttraumatic stress disorder (PTSD), and assigned an initial 70 percent disability rating, effective November 18, 2004.  As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status.  See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997).

FINDINGS OF FACT

1.  For the period from December 30, 2004, to January 18, 2010, the Veteran's bilateral hearing loss disability was manifested by hearing acuity no worse than Level VI in his right ear and Level VII in his left ear. 

2.  For the period from January 19, 2010, to January 30, 2013, the Veteran's bilateral hearing loss disability was manifested by hearing acuity no worse than Level VII in his right ear and Level VIII in his left ear.

3.  For the period beginning January 31, 2013, the Veteran's bilateral hearing loss disability has been manifested by hearing acuity no worse than Level VIII hearing in the right ear and Level XI hearing in the left ear, with no additional functional impairment. 


CONCLUSIONS OF LAW

1.  For the period from December 30, 2004, to January 18, 2010, the criteria for an evaluation in excess of 30 percent for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2012). 

2.  For the period from January 19, 2010, to January 30, 2013, the criteria for an evaluation in excess of 40 percent for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155  (West 2002); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2012).

3.  A rating in excess of 70 percent for bilateral hearing loss disability is not warranted for any period of time since January 31, 2013.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties 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.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letters dated in August 2005 and March 2006 of the criteria for establishing a higher rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements.  

Although the Veteran was not provided complete notice until after the initial adjudication of the claim, there is no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following the provision of the required notice, the originating agency readjudicated the claim based upon all evidence of record before the case was returned to the Board.  There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 

VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran's post-service private and VA treatment records have been obtained.  Records from the Social Security Administration (SSA) are also of record.  The Veteran submitted multiple written statements discussing his contentions and testified at a hearing in front of the undersigned.  Neither the Veteran nor his attorney has identified any outstanding pertinent evidence for the current appeal.

The Veteran was also provided with VA examinations in 2006, 2010 and 2013.  The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected hearing loss under the applicable rating criteria. There is no evidence indicating that there has been a material change in the service-connected disorder since the last examination.  38 C.F.R. § 3.327(a).  

Discussion of the Veteran's August 2007 personal hearing is also necessary.  The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  They were met here.  Entitlement to an increased rating for hearing loss was identified as an issue on appeal.  Information was elicited from the Veteran concerning the nature and severity of his hearing loss disability, to include any functional impairment that he experienced.  In particular, and a result of his testimony that his hearing loss had worsened since he was last examined, the matter was Remanded to afford the Veteran a new VA examination.

This case was before the Board in September 2012 when it was remanded for additional action, including obtaining up-to-date VA treatment records and affording the Veteran a VA examination to ascertain the current nature and severity of his service-connected bilateral hearing loss disability.  As will be discussed in more detail below, VA treatment records were obtained in March 2013 and the Veteran was afforded a VA examination in January 2013.  The January 2013 examination report reflects that the Veteran's records were reviewed and contains the requested opinion.  The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required.  D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

All necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).  Neither the appellant nor his representative has identified, and the record does not indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Ratings - Law and Regulations 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . 

At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85. 

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b). 

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c). 

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz  and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85(d). 

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e). 

Where circumstances warrant, there is also a method for rating exceptional patterns of hearing impairment, under Table VIa.  See 38 C.F.R. § 4.86.  When the puretone 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(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz must be 30 decibels or less, 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.  38 C.F.R. § 4.86 (b).

Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

The Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

Factual Background and Analysis

Historically, the Veteran was awarded service connection for bilateral hearing loss disability in a November 2003 rating decision.  A 20 percent rating was assigned, effective December 15, 2000.

In December 2004, the Veteran submitted a claim for increased rating.  VA treatment records dated from November 2003 to July 2006 are negative for findings related to hearing loss disability.

An August 2006 VA examination report notes the Veteran's complaints of increased hearing loss.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
50
60
60
60
LEFT
25
40
65
95
95

The average loss was 58 decibels in the right ear and 74 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 60 percent in both ears.  Applying the values above to Table VI results in a Level VI Roman numeral designation for the right ear and a Level VII designation for the left ear.  Application of a Level VI designation to a Level VII designation in Table VII results in a 30 percent rating under Table VII.

An October 2006 rating decision awarded an increased 30 percent rating for bilateral hearing loss disability, effective December 30, 2004.

During an August 2007 travel Board hearing, the Veteran testified that his hearing had gotten worse since the August 2006 VA examination.  He indicated that he was unable to hear without his hearing aids.

An August 2009 VA audiology medical device note shows that the Veteran complained of "hearing too much" wind and background noise with his hearing aids.  He also reported that his own voice echoed.  His hearing aids were adjusted and the Veteran reported improvement.  See VVA.

A January 19, 2010 VA examination report notes the Veteran's complaints of increased hearing loss.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
55
65
65
LEFT
25
35
55
90
90

The average loss was 58 decibels in the right ear and 68 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 48 percent in the left ear.  Applying the values above to Table VI results in a Level VII Roman numeral designation for the right ear and a Level VIII designation for the left ear.  Application of a Level VII designation to a Level VIII designation in Table VII results in a 40 percent rating under Table VII.

A January 2010 rating decision awarded an increased 40 percent rating for bilateral hearing loss disability, effective January 19, 2010.

A September 2010 VA audiology medical device note shows that the Veteran reported for a hearing aid check.  He complained that he was unable to wear his recently issued hearing aids because they were too loud and he heard too much.  He also reported that these hearing aids had been stolen the previous evening; however, he still had his spare hearing aids.  See VVA.

In a November 2010 statement, the Veteran claimed that his hearing loss has become worse since he was last afforded a VA examination in January 2010.  He essentially stated that he was provided faulty hearing aids that magnified loud noise to such an extent that the noise hurt his ears.  Because he was unable to manually adjust his hearing aids, he essentially reported that his hearing loss was permanently worsened.

An October 2012 VA primary care clinic nursing note shows the Veteran's complaints of difficulty hearing.  It was noted that he wore hearing aids.  See VVA.

A January 31, 2013 VA examination report notes the Veteran's complaints of trouble hearing in all situations.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
60
70
75
LEFT
45
60
75
105+
105+

The average loss was 63 decibels in the right ear and 86 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 28 percent in the left ear.  The results of this audiological evaluation reveal an exceptional pattern of hearing loss in the left ear because the puretone threshold at each of the four frequencies exceeds 55 decibels.  Applying the values above to Table VI results in a Level XI designation for the left ear.  Applying the values to Table VIA results in a Level VIII designation for the left ear.  Table VI, then, results in the higher numeral, which is more favorable to the Veteran. See 38 C.F.R. § 4.86.  Applying the values above to Table VI results in a Level VIII designation for the right ear.  Application of a Level VIII designation to a Level XI designation in Table VII results in a 70 percent rating under Table VII.  

After reviewing the claims file, the examiner opined that the Veteran's hearing loss impacted the ordinary conditions of his daily life, including his ability to work.  She further stated that the audiometric data show poor word recognition scores in quiet, with moderate to severe sensorineural hearing loss in the right ear and severe to profound in the left ear.  She opined that the Veteran should be able to function in any position for which he has the training and expertise. However, it would not be advisable for him to work in a hazardous noise environment as his residual hearing must be protected.

A March 2013 rating decision awarded an increased 70 percent rating for bilateral hearing loss disability, effective January 31, 2013.

Additional evidence of record includes statements from the Veteran's daughter and wife as to the severity of his hearing loss, to include the Veteran's inability to understand what is being said on the radio.

December 30, 2004, to January 18, 2010

The Veteran's bilateral hearing loss disability is evaluated as 30 percent disabling for the period from December 30, 2004, to January 18, 2010.  On review of the record, it is evident the criteria for the next higher (40 percent) rating under Diagnostic Code 6100 were not met at any point during the appeal period.  Specifically, the medical evidence for the period of the appeal shows that the Veteran's service-connected bilateral hearing loss disability was manifested by no worse than Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear.  Applying these results to the Table VII chart results in a 30 percent evaluation.  

Therefore, a 30 percent disability rating is applicable under the provisions of 38 C.F.R. § 4.85, Table VII, for this period of the appeal.  Hart, supra. 

January 19, 2010, to January 30, 2013

The Veteran's bilateral hearing loss disability is evaluated as 40 percent disabling for the period from January 19, 2010, to January 30, 2013.  On review of the record, it is evident the criteria for the next higher (50 percent) rating under Diagnostic Code 6100 were not met at any point during the appeal period.  Specifically, the medical evidence for the period of the appeal shows that the Veteran's service-connected bilateral hearing loss disability was manifested by no worse than Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear.  Applying these results to the Table VII chart results in a 40 percent evaluation.  

Therefore, a 40 percent disability rating is applicable under the provisions of 38 C.F.R. § 4.85, Table VII, for this period of the appeal.  Hart, supra. 


January 31, 2013, to the Present

The Veteran's bilateral hearing loss disability is evaluated as 70 percent disabling for the period from January 31, 2013, to the present.  On review of the record, it is evident the criteria for the next higher (80 percent) rating under Diagnostic Code 6100 were not met at any point during the appeal period.  Specifically, the medical evidence for the period of the appeal shows that the Veteran's service-connected bilateral hearing loss disability was manifested by no worse than Level VIII hearing acuity in the right ear and Level XI hearing acuity in the left ear.  Applying these results to the Table VII chart results in a 70 percent evaluation.  

In addition, with respect to the audiology examination, the audiologist must describe the functional effects caused by a hearing disability in the final report.  Martinak, supra.  The January 2013 examiner noted the Veteran's complaints of trouble hearing in all situations.  She opined that the Veteran's hearing loss impacted the ordinary conditions of his daily life, noting that the audiometric data showed poor word recognition scores in quiet.  She opined that the Veteran should be able to function in any position for which he has the training and expertise.  However, it would not be advisable for him to work in a hazardous noise environment as his residual hearing must be protected.  The Board finds that the weight of the evidence establishes that functional impairment warranting an evaluation in excess of 70 percent has not been shown.

Therefore, a 70 percent disability rating is applicable under the provisions of 38 C.F.R. §§ 4.85, 4.86, Table VII, for this period of the appeal.  Hart, supra. 

The Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor.  The preponderance of the evidence, however, is against the claim, and the claim must be denied.  38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra.




Other Considerations

VA also must consider all favorable lay evidence of record.  38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA and his comments to the examiners, in which he generally contends his disability should be rated higher than the current staged ratings.  He, his wife, and his daughter have also noted specific complaints with his hearing.

The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310   (2007); and 38 C.F.R. § 3.159(a)(2) .  His wife and daughter are similarly competent to comment on their observations of the Veteran's hearing loss, such as having to speak louder or increase the volume of the television.  However, as  laypersons, without the appropriate medical training and expertise, they are not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his hearing loss disability in terms of the applicable rating criteria.  Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his hearing loss, including audiometric testing for puretone thresholds.  Since they are not competent to provide probative evidence in this regard, there is no need to additionally consider the credibility of these lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Next, in considering whether referral for extra-schedular consideration is appropriate, the Court has set forth a three-step analysis which provides additional guidance in determining whether referral for extra-schedular consideration is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The rating schedule provides for various higher ratings for different levels of hearing impairment, but the Veteran's hearing loss does not meet the criteria.  Hearing loss is evaluated based on both pure tone threshold loss and speech discrimination.  Moreover, the schedule provides for ratings for exceptional patterns of hearing impairment deemed not to be adequately covered by the rating schedule.  This provision was considered in awarding the Veteran a 70 percent rating.  Thus, the Board finds that the schedular criteria are adequate and that therefore it is not necessary to proceed to the second step-a discussion of whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms," such as "marked interference with employment" and "frequent periods of hospitalization."  For these reasons, referral for extra-schedular consideration is not appropriate in this case. 

Finally, although the Veteran has submitted evidence of a medical disability, and made claims for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his hearing loss disability. Rather, when he was examined in June 2009, he reported that he had stopped working in 2000 due to having irritability problems with his co-workers and foreman, and that he was placed on disability due to mental problems.  Records from the SSA indicate that he was placed on disability to an anxiety disorder.  The VA examiner in 2013 also indicated that the Veteran's hearing loss would have little adverse effect on his ability to function in any job commensurate with his training and experience (chemical operator).  Therefore, the Board determines that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).




ORDER

A rating in excess of 30 percent for bilateral hearing loss disability from December 30, 2004, to January 18, 2010, is denied.

A rating in excess of 40 percent for bilateral hearing loss disability from January 19, 2010, to January 30, 2013, is denied. 

A rating in excess of 70 percent for bilateral hearing loss disability from January 31, 2013, to the present is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs