Citation Nr: 1330342 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-16 981 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from November 1, 2002 to April 7, 2010. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from April 8, 2010, to February 4, 2013. 3. Entitlement to an initial rating in excess of 50 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 5, 2013. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to October 1946, and from November 1950 to April 1952. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2003 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for bilateral hearing loss, effective November 1, 2002 (the date of the claim for service connection). In August 2003, the Veteran filed a notice of disagreement with the initial rating assigned. A statement of the case (SOC) was issued in April 2004, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2004. In September 2004, the RO requested extra-schedular consideration by the Director of Compensation and Pension (C&P) Service, pursuant to 38 C.F.R. § 3.321(b)(1) . Subsequently, the Director determined that an extra-schedular evaluation was not warranted (as reflected in a March 2005 decision). The RO, in turn, issued a March 2005 rating decision denying an extra-schedular rating for bilateral hearing loss and the Veteran expressed his continued disagreement with the disability rating assigned. In an April 2006 decision, the Board denied a higher rating for bilateral hearing loss (on both schedular and extra-schedular bases). The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2009 Panel Decision, the Court vacated the Board's April 2006 decision and remanded the matter to the Board for further proceedings consistent with the decision. In November 2009, the Board remanded the claim for higher initial rating then on appeal to the RO, via the Appeals Management Center (AMC) for additional development. After accomplishing the requested development, the RO granted a higher, 20 percent rating for bilateral hearing loss, effective April 8, 2010 (the date of VA examination), but denied a rating in excess of 10 prior to that date, to include on an extra-schedular basis (as reflected in the May 2010 and September 2010 supplemental SOCs (SSOCs)). Thereafter, the RO returned the appeal to the Board for further consideration. In February 2011, the Vice Chairman of the Board granted a motion advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2011). Also in February 2011, the undersigned Veterans Law Judge granted the motion of the Veteran's representative to extend the time to submit additional evidence and argument an additional 60 days, pursuant to 38 C.F.R. § 20.1304(b) (2012). In March 2011, the Veteran's attorney submitted an additional statement and medical journal article directly to the Board, without a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2011). In a May 2011 decision, the Board recharacterized the appeal as involving staged initial and subsequent ratings (See Fenderson v. West, 12 Vet. App. 119, 126 (1999) and AB v. Brown, 6 Vet. App. 35, 38 (1993)), and denied higher ratings for bilateral hearing loss on both schedular and extra-schedular bases. The Veteran, in turn, appealed the Board's May 2011 decision to the Court. Subsequently, in February 2012, the Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the Board's May 2011 decision and remanding the matter to the Board for further proceedings consistent with the joint motion. In November 2012, the Board denied higher ratings for bilateral hearing loss on a schedular basis and remanded the matters of higher ratings on an extra-schedular basis to the RO, via the AMC, for additional development. After completing the requested development, the RO/AMC continued to deny the extra-schedular claims (as reflected in the May 2013 (SSOC)) and returned these matters to the Board for further appellate consideration. The Board notes that, following the Board's decision, in a March 2013 rating decision, the RO granted a higher, 50 percent schedular rating for bilateral hearing loss, effective February 5, 2013. The Veteran has not appealed the March 2013 rating decision; hence, that decision is not before the Board. However, as the matters of higher, extra-schedular ratings had been remanded, and were still pending before the Board, and the appellant is presumed to seek the maximum benefit for a disability, the appeal has been recharacterized to encompass the three matters reflected on the title page. The record reflects that the Veteran was previously represented by the Massachusetts Department of Veteran Services. However, in a June 2009 VA Form 21-22a (Appointment of Individual as Claimant's Representative), he appointed Daniel G. Krasnegor, a private attorney, as his representative. In April 2012, an updated VA Form 21-22a was submitted that reflects Mr. Krasnegor remains the Veteran's appointed representative with respect to the issues currently on appeal. The Board has recognized the change in representation. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claims on appeal have been accomplished. 2. At no point since the November 1, 2002, effective date of the award of service connection has the Veteran's bilateral hearing loss been shown to be so exceptional or unusual to warrant the assignment of a higher rating on an extra-schedular basis. CONCLUSIONS OF LAW 1. For the period from November 1, 2002 to April 7, 2010, the criteria for an initial rating in excess of 10 percent for bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2012). 2. For the period from April 8, 2010, to February 4, 2013, the criteria for a rating in excess of 20 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.32 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2012). 3. From February 5, 2013, the criteria for a rating in excess of 50 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, a November 2002 pre-rating letter, as well as October 2003, December 2009 and November 2012 post-rating letters provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for higher rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2002, and October 2003 letters also requested that the appellant submit any evidence in his possession pertinent to the claim, consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect. The December 2009 letter and the December 2012 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The Veteran was provided notice of the actual provisions of 38 C.F.R. § 3.321(b)(1), the governing authority for extra-schedular ratings, in the April 2005 SSOC (the timing and form of which suffices, in part, for Dingess/Hartman). After issuance of the above-described notice, and opportunity for the Veteran to respond, the May 2010, September 2010, and May 2013 SSOCs reflect readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, the translation of a July 2004 private audiology examination, the reports of multiple VA audiological evaluations and ear examinations, the most recent of which was conducted in February 2012, as well as determinations in March 2005 and May 2013 by VA's Director of Compensation and Pension. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board finds that no additional RO action on any claim, prior to appellate consideration, is required.. As noted, in November 2012 the Veteran's claims were remanded in order for the RO to send to the Veteran a letter requesting the Veteran provide sufficient information and if necessary, authorization, to obtain outstanding pertinent evidence and to send the Veteran's claims to the Director of Compensation and Pension for an opinion pursuant to 38 C.F.R. § 3.321(b). As noted above, the Veteran was sent a letter in December 2012, but, he did not respond with any information about outstanding evidence. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). In addition, as discussed above, an opinion from the Director of Compensation and Pension was obtained in May 2013. Thus, the Board finds that the purpose of the November 2012 remand directives was fulfilled, and that no further action in this regard is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). To the extent that the Veteran's attorney has argued that the an April 2010 VA examiner's opinion regarding the functional effects of the Veteran's hearing loss was inadequate and inconsistent (see March 2011 statement), the Board points out that any deficiencies in this opinion was cured with the subsequent medical examination and opinion, and that the reports of these examinations-along with other pertinent evidence, and the opinions from the Director of Compensation and Pension Service-provides a sufficient basis for considering the Veteran's entitlement to higher, extra-schedular ratings. In a July 2013 statement, the Veteran's attorney asserted that the "May 2, 2013 VA examination" relied upon by the Director of Compensation and Pension was inadequate because the opinion was "not only inconsistent with the evidence of record but it also fails to discuss the evidence of record indicating that the Veteran's hearing loss does affect his employment." First, the Board notes that there is no "May 2, 2013 VA examination" of record; instead, the most recent VA examination was conducted on February 5, 2013. Secondly, the Board finds that the February 2013 VA examination is adequate evaluate the Veteran's extra-schedular claims as it consisted of a clinical interview, a review of the medical history, and a full status examination that addressed the relevant criteria for assignment of an extra-schedular rating.. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board further notes, as discussed below, that in the May 2013 determination , the Director of Compensation and Pension did not rely solely on the February 2013 VA examination report, but also discussed reports the Veteran's VA examinations and his private audio logical evaluations, other evidence of record, and the Veteran's own assertions. Moreover, the Director of Compensation and Pension offered clear conclusions with supporting rationale. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 5537, 543 (rejecting the argument that the Board lacks legal authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per seconds. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § Diagnostic Code 6100 (2012). A schedular rating itself is recognition that claimant's industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. Van Hoose, 4 Vet. App. at 363; 38 C.F.R. § 4.1 (2012). VA's rating 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 those circumstances, where the scheduar evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1) . According to the regulation, an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. A July 2004 statement from the Veteran reflects that he was formerly employed with the New Jersey Bell Telephone Company, and that as a Plant Service Supervisor-Repair manager in the 1950s, he became aware of his hearing loss difficulties. He indicated that he had to ask his employees to repeat themselves in meetings. In the 1970s, when he worked with the labor relations department, he reported that his hearing loss caused a considerable amount of stress during grievance hearings and arbitration proceedings, as he could often not hear the discussions. He further noted that in a subsequent position as district plant manager, he could only communicate on the phone by using the speaker phone for all calls. Though a left ear hearing aid helped, he was still having difficulties and decided to retire with a service pension at age 55. However, the Veteran reported that he continued to work as a real estate agent from 1978 to 1984, though his hearing loss posed great difficulty on his ability to communicate on the phone or in person. He then worked in maintenance until 1997, when he was 75. The Veteran noted that while he wanted to continue in real estate, he was unable to because he cannot communicate effectively. He indicated that if his hearing were not impaired, he would have enjoyed and finished his career with the New Jersey Bell Telephone Company, possibly advancing to higher levels of management and retirement with a full pension. A June 2004 DRO Conference report notes that the Veteran discussed how his hearing loss adversely affected his employment in his previous positions with the New Jersey Phone Company and as a real estate agent, and his life on a day-to-day basis. On April 2003 VA examination, the Veteran reported no occupational noise exposure and when he was employed at the telephone company he worked in an office environment. A diagnosis of moderate to severe bilateral sensorineural hearing loss was assigned. Treatment records from the Boston VA Medical Center (VAMC), dated from 2003 to 2004, further describe the treatment the Veteran received for his hearing difficulties, including irritation/fitting problems caused by his hearing aids. In November 2003 it was noted that the Veteran had good sound quality. The Veteran also submitted the report of a private audiological evaluation conducted in July 2004. While this report is in graphical form, a VA audiologist interpreted the audiometric testing results in July 2010. The private examiner reported that the Veteran had moderate sensorineural hearing loss bilaterally with poor discrimination. Based on these results, he opined that the Veteran's hearing was less than adequate for all communicative purposes. As a result of the Veteran's statements and DRO conference, the RO submitted the Veteran's case to VA's Director of Compensation and Pension for consideration of an extra-schedular rating. In March 2005 the Director noted that a review of the claims folder indicated that the Veteran was rated at 10 percent for hearing loss and 10 percent for tinnitus, effective November 1, 2002. The Director noted that the Veteran indicated that he was unable to participate in conversation with friends, could not answer or use the phone unless his wife helps him on the other line, and was unable to understand the dialogue of speakers, newscasters, and actors on the radio, television, church, or theater. She also noted the Veteran's complaints regarding the impact of his hearing loss on his career and ability to work, forcing an early retirement from the phone company. The Director also pointed out that extra-schedular evaluation is assigned where normal schedular evaluations are found to be inadequate to compensate for impairment of earning capacity. She emphasized that the Veteran had not worked in many years, and available medical records document that the Veteran's hearing loss was not so severe as to interfere with his ability to be gainfully employed. Thus, the Director found that entitlement to an extra-schedular evaluation was not warranted. The Veteran's VA treatment records also include treatment notes reflecting that, in May 2006, he had fair word discrimination, and that, in June 2006, he had a slight sensitivity. In February 2007, the Veteran reported that the environmental noise was too loud and some sounds were too tiny; the music in church was too much. His hearing aids were then reprogrammed. The Veteran was afforded two VA audiological examinations in April 2010. The first one was conducted by Audiologist F.F. She diagnosed the Veteran with moderately severe sensorineural hearing loss of the right ear and moderate to severe hearing loss of the left ear. While the examiner noted that the Veteran was not employed, she found that the Veteran would experience hearing difficulty with occupational activities, such as difficulty hearing conversational speech in noise. She indicated that he would perform best in all listening situations when he could see the face of the person speaking to him. Thus, she found that the Veteran would have difficulty understanding speech over the telephone. However, she found that the Veteran's hearing loss alone would not preclude him from performing all forms of physical or sedentary employment, and there were no effects of the disability on usual daily activities. The Veteran's second April 2010 VA audiological evaluation was conducted by Dr. J.G. The Veteran reported difficulty distinguishing between different consonants and hearing in church or crowded social situations where there is a lot of background noise and multiple people talking at once. In the medical history section it was stated that "This has limited his potential employment in the past, as he is unable to effectively hear in group situations and is only able to function in sort of one on one communication." He was diagnosed with sensorineural hearing loss affecting most frequencies from 500 Hertz to 4000 Hertz. The report of the Veteran's February 2013 VA examination reflects the examiner's notation that the Veteran was noticing a greater problem in understanding words and he found it more difficult in hearing/understanding his wife and he was relying more on lip reading and found it frustrating. It was opined that his hearing loss may impact ordinary conditions of his daily life but did not impact his ability to work. In May 2013, the Director of Compensation and Pension conducted an administrative review of the Veteran's claims file in rendering a determination on extra-schedular consideration for the Veteran's bilateral hearing loss. It was noted that service connection is in effect for tinnitus, rated as 10 percent disabling, and for bilateral hearing loss, rated as 10 percent disabling effective November 1, 2002,; as 20 percent disabling effective April 8, 2010, and as 50 percent disabling effective February 5, 2013. The Director noted that the most recent VA examination was in February 2013 and that the Veteran's bilateral hearing loss was found to impact ordinary conditions of his daily life but not his ability to work. It was also noted that in an August 18, 2003, letter the Veteran reported that his bilateral hearing loss kept him from advancing in his career and forced him to retire early; records showed that he worked for the same company for 30 years and retired at the age of 55 but his medical records from the previous employer were unavailable. The Director also discussed the private opinion in July 2004 and the April 2010 VA audio logical evaluation by F.F. He stated that none of the available objective evidence showed marked interference with past employment due to his bilateral hearing loss; he worked for 30 years and retired voluntarily at the age of 55. While evidence includes subjective complaints from the Veteran describing difficulty performing some routine functions requiring good hearing and interaction with others, the level of the Veteran's bilateral hearing loss does not meet the criteria necessary for an evaluation in excess of the percentages assigned. The Director further stated that extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent period of hospitalization that renders application of the regular rating schedular standards impractical. The Veteran has not had any recent surgical procedures to treat this condition. No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating schedule as impractical. The evidence of record does not demonstrate that the symptomatology consistently associated with the service-connected bilateral hearing loss is not wholly contemplated by the criteria utilized to assign all evaluations. The Director also noted that the evidence does not demonstrate that the Veteran has been or is unemployable due to his bilateral hearing loss. On these facts, the Director concluded that entitlement to a higher, extra-schedular evaluation for bilateral hearing loss for any time period is not established. The Board agrees. At the outset, the Board notes that, in this case, the schedular criteria appear adequate to evaluate the Veteran's hearing loss, and there is no specific argument to the contrary. Under the analysis set forth in Thun, such a determination indicates that the threshold requirement of 38 C.F.R. § 3.321 is not met, and that any further discussion of that regulation is unnecessary. Here, however, the Veteran has specifically and consistently asserted that his hearing loss has caused marked interference with employment (i.e., beyond that contemplated in the assigned rating(s)), and the prior decision, and much of the development pertaining to section 3.321, took place prior to Thun. Given these facts, and because opinions from VA's Director and Compensation and Pension have been obtained (which occurs when the procedures of section 3.321 for extra-schedular consideration are invoked), the Board has considered the other related factors identified in section 3.321 as indicative of an exceptional or unusual disability picture within the meaning of that regulation. As noted in the February 2012 Joint Motion for Remand, there are two different standards regarding employability. There is the standard for a total rating for compensation based upon individual unemployability due to service-connected disability (TDIU); there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. There is also the standard for an extra-schedular rating; that the Veteran's service-connected disability causes marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b). As pointed out in the February 2012 Joint Motion for Remand, the only standard applicable to this case is the standard set forth in 38 C.F.R. § 3.321(b), noted to be the "lesser standard." Thus, in order for the Veteran to be entitled to a higher rating based on a extra-schedular basis there needs to be evidence that the Veteran's bilateral hearing loss causes marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. The evidence demonstrates that the Veteran's industrial capacity has been impaired, to some degree, as a result of his service-connected bilateral hearing loss, in that the Veteran would difficulty communicating while on the job if he were still working; in April 2010, audiologist F.F. stated that that the Veteran had difficulty with conversational speech in a noisy environment and difficulty with the telephone. However, the Board finds that there is no objective showing that his disability has impacted his employability to an extent greater than what is already contemplated in the assigned 10, 20, and 50 percent ratings and thus, rendering the application of the rating schedule impractical. As noted above, the Veteran is no longer working. In 1977, he retired from the telephone company after 30 years of employment, he then worked as a real estate agent for approximately 8 more years until the age of 62, when he was eligible for Social Security, and then until 1997 he worked in maintenance; he was 75 years old when he finished working. Thus, the evidence of record, including the Veteran's own statements, indicate that he retained employment of some sort for approximately 50 years, despite the alleged impact of his hearing. While the Veteran has alleged that he would have stayed longer with his position at the telephone company or continued work as a real estate agent, there is no evidence to support his contention that bilateral hearing loss, alone, was the reason for his retirement from any position, or that the disability is the sole reason currently precluding gainful employment. Furthermore, the Board emphasizes that, to the extent that the Veteran argues that his hearing loss prevented him from continued work with his preferred career with the telephone company and potential promotion in that career, such claims have little relevancy into the adequacy of his level of disability. See Thun, 22 Vet. App. at 117 n.3 (noting that when the RO or Board evaluates whether the criteria in the rating schedule adequately correspond to the symptomatology and severity of a claimant's disability, § 3.321(b)(1) does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability). Moreover, the evidence of record does not demonstrate that his service-connected bilateral hearing loss caused marked interference with employment or frequent periods of hospitalization. In the February 2012 Joint Motion for Remand ,it was stated that the April 2010 VA examination opinion by Dr. J.G. was favorable; however, the Board finds that, while it is stated that "[t]his [the Veteran's hearing loss]has limited his potential employment in the past, as he is unable to effectively hear in group situations and is only able to function in sort of one on one communication" it is unclear whether this is an actual medical opinion by Dr. J.G.. or if it is just a reiteration of the Veteran's own reported history. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence.", and that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional).. The Board points out that the statement appears in the medical history section of the examination report, and there is no further discussion of this notation in the physical examination section, the diagnostic and clinical tests section, the diagnosis section, or with the VA examiner's opinion on etiology. It is also noteworthy that Dr. J.G. also noted that the Veteran could function one on one; and that he did not in indicate that the Veteran's bilateral hearing loss has resulted in marked interference with his employment. Thus, the Board finds that this opinion is not probative in indicating that the Veteran's service-connected bilateral hearing loss warrants an extra-schedular rating. Although the July 2004 private examiner found the Veteran's hearing to be "less than adequate" for all communicative purposes, he did not indicate that the Veteran's hearing loss would cause marked interference with any type of employment. In addition, the April 2010 VA examiner F.F., while acknowledging that the Veteran would have difficulty hearing conversational speech in noise and difficulty understanding speech information over the telephone stated that the Veteran would probably be best in a face to face environment when talking to a person. In addition, there are two opinions (March 2005 and May 2013) by the Director of Compensation and Pension; both reflecting observations that the medical records do not establish that the Veteran's hearing loss is so severe as to interfere with his ability to be gainfully employed. In the May 2013 opinion, the Director specifically noted that the Veteran retired voluntarily at the age of 55 after working for 30 years. Furthermore, while there were subjective complaints from the Veteran describing difficulty associated with his service-connected bilateral hearing loss, the objective evidence does not demonstrate that the rating schedule has been rendered impractical and that the symptomatology associated with the Veteran's bilateral hearing loss is not wholly contemplated by the rating schedule. Thus, the Board finds that, while the Veteran's bilateral hearing loss has interfered with his ability to communicate, the preponderance of the evidence of record establishes that the rating schedule has not been rendered impractical and that he is compensated for the functional effects of the Veteran's hearing loss by the assigned 10, 20, and 50 percent disability ratings. In sum, the Board finds that there simply is no persuasive evidence to support a finding that the Veteran's bilateral hearing loss, alone, has produced marked interference with employment at any state under consideration. The Board further notes that that the evidence does not establish frequent treatment-much less, frequent hospitalization-for the Veteran's service-connected bilateral hearing loss. There also is no showing that the disability has otherwise rendered the application of the regular schedular standards impractical. In this regard, the Board points out that, even if the Veteran was presently working, and had to take time off or was afforded accommodations at work due to hearing loss, there is no evidence to suggest that his current disability ratings would not adequately compensate him for such time loss and accommodation. As a final point, the Board notes that the assertions of the Veteran and his wife have been considered, along with the assertions advanced by the Veteran's attorney, on his behalf. However, each is a layperson with appropriate training and expertise to competently opine whether the Veteran's hearing loss has resulted in marked interference with employment, or is otherwise exceptional or unusual within the meaning of 38 C.F.R. § 3.321. See, e.g., Bostain v. West , 11 Vet. App. 124, 127 (1998), and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge")., As such, the lay assertions in this regard are certainly not considered more persuasive than the objective medical findings and comments on these points, or the determinations rendered by VA's Director of Compensation and Pension on the basis of such evidence. Under these circumstances, the Board must conclude that the claims for higher extra-schedular ratings at each stage under consideration must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher, extra-schedular rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER For the period from November 1, 2002 to April 7, 2010, an initial rating in excess of 10 percent for bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, is denied. For the period from April 8, 2010, to February 4, 2013, a rating in excess of 20 percent for bilateral hearing loss on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321, is denied. From February 5, 2013, a rating in excess of 50 percent for bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs