Citation Nr: 1326013 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 05-30 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a compensable evaluation for service-connected left ear hearing loss to include on an extraschedular basis. 2. Entitlement to a compensable rating for bilateral perforated tympanic membrane. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the claims. In May 2005 the Veteran testified before a Decision Review Officer (DRO) at the RO and in April 2007, the Veteran testified during a Board video conference hearing before a Veterans Law Judge (VLJ). Transcripts of the hearings have been associated with the Veteran's claims folder. The Board also notes that the April 2007 VLJ is no longer with the Board. Under VA regulations, a claimant is entitled to have a final determination of his or her claim made by the VLJ who conducted the hearing. 38 C.F.R. § 20.707 (2012). Accordingly, the appellant was afforded the opportunity for a second hearing before the Board. However, in a letter received in April 2012, he indicated that he did not want another hearing. The Board has previously considered these claims. In June 2007, the Board denied the Veteran's claims. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). Thereafter, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for Remand ("Joint Motion"), requesting that the Court vacate the decision. By an Order dated June 2008, the Court granted the parties' Joint Motion, vacated the decision, and remanded the claims to the Board for compliance with the directives specified by the Court. The Board in turn remanded this case in September 2008, and again in September 2010 to ensure compliance with the Court's Joint Motion. The case was returned to the Board. However, in August 2012, the Board remanded the claim of entitlement to a compensable rating for bilateral perforated tympanic membrane for additional development in order to obtain a supplemental opinion from a VA examiner concerning the Veteran's disability. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). In addition, by means of the August 2012 decision, the Board denied the Veteran's claim of entitlement to a compensable rating for left ear hearing loss to include an extraschedular rating. The appellant subsequently appealed the decision to the Court. Thereafter, while the case was pending before the Court, the parties filed a Joint Motion for partial remand, requesting that the Court vacate that portion of the Board's decision that denied this claim. By an Order dated June 2013, the Court granted the parties' Joint Motion, vacated the decision, and remanded the claim to the Board for compliance with the directives specified by the Court. The claims folder has been returned to the Board for further appellate proceedings. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence for inclusion in the record. The issue of entitlement to a compensable evaluation for left ear hearing loss to include on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required on his part. FINDING OF FACT Throughout the course of this appeal, the Veteran's bilateral perforated tympanic membrane has been manifested by normal findings and the left tympanic membrane has been manifested by scarring consistent with a prior perforation. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an initial compensable disability rating for bilateral perforated tympanic membrane have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.87, Diagnostic Code 6211 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, letters dated May 2004 and April 2006 provided the Veteran with information concerning how to substantiate a claim of entitlement to an increased disability rating, what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence that could be submitted in support of his claims, and advised him to provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). A March 2006 letter satisfied the requirements of Dingess/Hartman by advising the Veteran how VA assigns the disability rating and effective date elements of a claim. The U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") has held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Federal Circuit further held that VA can provide additional necessary notice subsequent to the initial adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). Here, as noted above, the RO cured any notice deficiency by providing the Veteran with complete VCAA notice in April 2006. Moreover, the claims were subsequently readjudicated in a July 2005 Statement of the Case ("SOC"), which provided the Veteran with the specific rating criteria for his service-connected disabilities. Based on the notice given, as well as the statements from the Veteran during his April 2007 hearing before the Board, the Board finds that a reasonable person would have known what evidence was needed in order to establish entitlement to an increased disability rating. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and VA examination reports dated August 2004, March 2009, October 2010 and October 2012. Additionally, the claims file contains the Veteran's personal testimony and written statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. With regard to the VA examinations, as noted above, the Board notes that while the August 2004 and March 2009 examiners reviewed the Veteran's claims folder and performed thorough evaluations, the Board remanded the claim in September 2010 to afford the Veteran another VA examination with an Ear, Nose and Throat ("ENT") specialist. Review of the October 2010 examination report shows that the examiner performed a comprehensive examination, but did not comment on the etiology of the Veteran's complaints of dizziness, or indicate whether his bilateral tympanic membrane resulted in vestibular disequilibrium. Accordingly, the claim was again remanded in August 2012 for an addendum opinion. The examiner noted that he had reviewed the claims folder and provided the examination results, which revealed that the Veteran does not have a diagnosis of vestibular equilibrium. Accordingly, the Board concludes that the examination results, taken as a whole, are adequate upon which to base a decision in this case. The Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) that requires that the RO official (DRO) or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that this essentially was done at the May 2005 and April 2007 hearings. Moreover, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearings. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the VCAA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirements has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. See Overton v. Nicholson, 20 Vet. App. 427 (2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he ... determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected bilateral perforated tympanic membrane has been rated under 38 C.F.R. § 4.87, DC 6211, perforation of tympanic membrane. Under this diagnostic code, the only schedular rating available is a zero percent or noncompensable rating; a compensable evaluation is not available. However, under 38 C.F.R. § 4.87, DC 6204 (2012), for rating peripheral vestibular disorders, a 10 percent rating is assignable for manifestation of occasional dizziness. A 30 percent rating is to be assigned when there is dizziness and occasional staggering. A note to the rating criteria provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this diagnostic code. Hearing impairment or suppuration shall be separately rated and combined. In August 2004, the Veteran was afforded a VA examination pursuant to his claim. He reported that he had sustained injury to his ears when a landmine exploded near him in 1970 while serving in Vietnam, at which time, he immediately lost hearing bilaterally, left worse than right, and had drainage. He said he had no current balance problems except when climbing a ladder, and no discharge, pain or itching. He reported no current or past treatment. On physical examination, the external right ear was normal. The right ear canal contained no scaliness or discharge, but the tympanic membrane and the tympanum were diffusely scarred with deformity. The mastoid was non-tender and there was no active ear disease or infection of the middle ear. The diagnosis was residuals of perforated tympanic membrane. During a May 2005 hearing before a Decision Review Officer at the RO, the Veteran described some loss of equilibrium, stating that he used to be able to do some climbing but now, his condition "affect[ed] me a little bit." He added that he could feel a difference in his sense of balance when he closed his eyes. During a September 2008 VA Medical Center ("VAMC") outpatient audiology assessment, the Veteran complained of vertigo/dizziness, adding that the room would spin occasionally when he arose from a sitting position. He denied ear pain and drainage. In October 2008, the Veteran was seen for a hearing aid fitting, at which time, he had a positive reaction to the hearing aid fit and sound quality. In March 2009, the Veteran was afforded another VA examination, at which time, he said he experienced occasional imbalance. Upon physical examination, an otoscopic screening was unremarkable bilaterally, except for the appearance of a healed tympanic membrane on the left. There was increased ear canal volume in the left ear as compared to the right ear. There was no visible perforation. The clinician noted that it was "possible but not probable" that there was a perforation in the left tympanic membrane that was not visible with otoscopy. A tympanogram was normal. Contralateral and ipsilateral acoustic reflexes were absent at all frequencies tested. The examiner recommended that the Veteran have an evaluation by an ENT specialist for asymmetrical hearing loss, ear canal volume and mixed hearing loss in the left ear. In October 2010, the Veteran was afforded another VA audiology examination, at which time, he reported that he had occasional, intermittent vertigo if he closed his eyes, which the examiner noted as "dysequilibrium." The Veteran said he had accommodated to this, that it only lasted for "minutes," and that it was not currently bothersome. He denied ear pain, pressure, drainage, surgery or familial history of hearing loss. Tympanometry revealed normal middle ear pressure, static compliance and ear canal volume on the right, normal middle ear pressure and ear canal volume and reduced static compliance on the left. The examiner opined that the Veteran no longer had perforated tympanic membranes; however, she did find associated significant scarring with a conductive component to his hearing loss. The examiner made no comment regarding the etiology of the Veteran's complaints of dizziness, nor did she indicate whether the Veteran had vestibular disequilibrium. A private audiological evaluation from an ENT physician, dated March 2012, noted that the Veteran experienced dizziness, as well as his history of perforated tympanic membrane, and findings of bilateral tympanosclerosis. As noted above, August 2012, the Board remanded the Veteran's claim to obtain a supplemental opinion concerning whether the Veteran service-connected disability resulted in vestibular disequilibrium. Thereafter, the Veteran was examined again during an October 2012 examination with a VA otolaryngologist. The examiner noted that the examination revealed normal findings with no evidence of vestibular disequilibrium or a vestibular cause for his reported intermittent imbalance, nor any neurologic findings. He added that there was no evidence to suggest that this symptom was related to the Veteran's remote history of tympanic membrane perforation. He further noted that the Veteran's disability caused no impairment, as his eardrums were healed, and opined that his sensorineural hearing loss was not related to his tympanic membrane abnormality. Finally, he opined that the Veteran's complaints of occasional dizziness were not related to his service-connected bilateral perforated tympanic membranes. Additional evidence of record recently submitted by the Veteran shows that in December 2012, he underwent a left myringotomy with tube placement, nasopharyngoscopy, and incisional biopsy nasopharynx for left-sided ear fullness and pressure. The procedure findings demonstrated that the left tympanic membrane was intact with a markedly thickened plaque of sclerosis inferiorly. The remaining membrane anterior and posterior was slightly retracted. Suctioning, however, revealed a dry middle ear. In January 2013, the Veteran was seen by his private ENT physician for sensorineural hearing loss, eustachian tube dysfunction and tympanosclerosis. He complained of dizziness, but denied ear drainage or pain. Upon otoscopic examination, the bilateral tympanic membranes were translucent with normal light reflex. The right tympanic membrane had normal mobility to pneumatic otoscopy; tympanosclerosis was present involving most of the tympanic membrane. However, there was no evidence of retractions or perforation. The left tympanic membrane was positive for tympanosclerosis in patches with mild retractions. The tympanostomy tube was patent and in good position with no otorrhea. Based on a review of the evidence of record, the Board concludes that a compensable rating for bilateral perforated tympanic membrane under DC 6211 is not warranted. As discussed above, the highest schedular rating available under this diagnostic code is the current noncompensable evaluation. Moreover, despite the Veteran's complaints of occasional dizziness, a competent VA examiner, having reviewed all of the evidence of record and performed a comprehensive evaluation, found that the Veteran no longer has bilateral perforated membranes, does not have vestibular disequilibrium and that there is no evidence to suggest that his symptoms are related to his service-connected disability; the Veteran has not presented any competent medical evidence of record that would suggest otherwise. As discussed above, his private ENT physician's treatment notes fail to demonstrate any evidence of a perforated tympanic membrane, or any evidence that his reported dizziness is associated with his service-connected disability. Accordingly, a higher disability rating under DC 6204 for peripheral vestibular disorders is not warranted. The Board has also considered whether other diagnostic codes are applicable to the disorder. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). However, in the absence of otosclerosis, Meniere's syndrome, loss of auricle, malignant neoplasm of the ear, benign neoplasms of the ear, or chronic otitis externa, a compensable rating is not warranted under DCs 6202 through 6210. In addition, the Veteran is already service connected for tinnitus. At no point during the period on appeal has the symptomatology of the Veteran's service-connected bilateral perforated tympanic membrane more nearly approximated the level of disability contemplated in a compensable disability rating under any of the aforementioned diagnostic codes. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his bilateral perforated tympanic membranes. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) ; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See 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). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established rating criteria shows that the rating criteria adequately describe the Veteran's symptomatology and disability level. A higher evaluation is provided for a greater level of severity of the disorder. There is no unusual clinical picture presented or any other factor which takes the disability outside the usual rating criteria. Thus, the Board finds that, for the entirety of the appeal period, the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. In summary, the Board concludes that the evidence of record is against the Veteran's claim of entitlement to a compensable rating for bilateral perforated tympanic membrane. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Staged rating are not for application. See Hart v. Mansfield, 21 Vet. App. 505 (2008). ORDER Entitlement to a compensable rating for bilateral perforated tympanic membrane is denied. REMAND The Veteran asserts that the rating schedule does not adequately assess the impact that his service-connected left ear hearing loss has on his employment and activities of daily life. Moreover, in a July 2013 statement, the Veteran's accredited representative noted that the Veteran claims that his hearing loss has deteriorated since his last VA compensation and pension examination in March 2012 and would like a new examination to determine his current condition. In light of points raised in the Joint Motion, the representative's recent statement, and review of the claims file, the Board finds that further RO action in connection with the claim is warranted. Review of the claims folder reveals that the Veteran has been afforded several VA audiometry examinations. Although these examinations have shown that the schedular criteria for a compensable rating for hearing loss of the left ear were not met, the Board notes that, during the October 2010 VA examination, the examiner reported that, while the Veteran no longer has a perforated left tympanic membrane, he has significant scarring with a conductive component to his hearing loss, which she found to be a likely sequelae from his tympanic membrane perforation. She further opined that the Veteran's hearing loss disability had significant effects on his occupation, as he complained of difficulty understanding conventional speech when someone was on his left side in a quiet room, especially with background noise. She noted that this results in problems with following instructions and communicating with colleagues and an inability to use the telephone on his left side. In addition, during his April 2007 hearing before the Board, the Veteran testified before a Veterans Law Judge that he was told that a hearing aid would not help his hearing loss problems because of the scarring in his left ear canal. In this regard, the Board notes that 38 C.F.R. § 3.321(b)(1) (2011) permits the Under Secretary for Benefits or the Director of Compensation and Pension Service to approve an extraschedular evaluation if the case "presents 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." Id. Therefore, there must be 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. Thun v. Peake, 22 Vet. App. 111 (2008). In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Court held that "the regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required." Floyd, 9 Vet. App. at 95. In light of the Veteran's assertions that he has significant difficulty in his employment, the VA examiner's similar comments, and the Veteran's assertions that he was told a hearing aid would not help his left ear hearing loss, the Board finds that the Veteran should be afforded a current VA examination with subsequent referral to the appropriate VA official for extraschedular consideration. In addition, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). As the most recent VA treatment reports of record appear to be dated in July 2012, the RO/AMC should ensure that any treatment reports for the Veteran's hearing loss since that date are obtained and associated with the claims folder. The Veteran should also be asked to provide any private treatment reports that are not currently of record or authorize VA to obtain them. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VAMC treatment records pertaining to the Veteran's hearing loss disability since July 2012 and associate with the claims folder. Any negative reply should be included in the claims folder. 2. The RO/AMC should send the Veteran an authorization and release form to allow it to obtain any updated private treatment reports identified by the Veteran that are not currently of record. Any additional evidence submitted should be associated with the claims folder and any negative reply should be included in the folder. The Veteran should be advised that he may also submit this evidence himself. 3. The RO should then arrange for an audiological evaluation of the Veteran (with audiometric studies) to ascertain the current severity of his left ear hearing loss disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner should elicit from the Veteran an account of the occupational and daily living impairment of function related to this disability, and should comment on the account (i.e., opine whether the degree of functional impairment described is consistent with the level of hearing acuity found on objective testing). Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After completion of the aforementioned development, the RO/AMC must refer the matter to either the Under Secretary for Benefits, or the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Board specifically directs the attention of the reviewing official to the Veteran's letters/statements of record, the VA examination reports, and any additional evidence submitted/received pursuant to the above requests. 5. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs