Citation Nr: 1331846 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-08 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to initial ratings in excess of 0 percent (noncompensable) prior to June 20, 2005, and in excess of 10 percent from June 20, 2005 to June 4, 2007, for bilateral hearing loss for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active service from August 1944 to February 1947. He died in September 2007, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which awarded service connection for bilateral hearing loss and assigned an initial noncompensable rating, effective July 23, 2003. The Veteran appealed the initial rating assigned. A May 2006 rating decision increased the initial rating for bilateral hearing loss to 10 percent, effective June 20, 2005. AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating for bilateral hearing loss remains in appellate status. Following the Veteran's September 2007 death, the appellant filed a claim for accrued benefits in October 2007. In an April 2009 rating decision, the RO increased the initial rating for bilateral hearing loss to 100 percent, effective June 4, 2007. In May 2007 prior to his death, the Veteran expressed disagreement with respect to four of the five issues decided in a December 2006 rating decision. However, these pending claims were not considered with the appellant's October 2007 claim for accrued benefits. The Board also notes that Veteran had withdrawn an appeal in writing in March 2007 for entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema. Therefore, the issues of (1) a rating in excess of 20 percent for traumatic arthritis/degenerative joint disease (DJD) with painful and/or limited motion of the dominant right hand (thumb metacarpal joint [MCPJ], index finger distal interphalangeal joint [DIPJ], and middle finger DIPJ), for the purpose of accrued benefits; (2) a rating in excess of 20 percent for traumatic arthritis/ DJD with painful and/or limited motion of the non-dominant left hand (thumb MCPJ, index finger DIPJ, and middle finger DIPJ), for the purpose of accrued benefits; (3) specially adapted housing for the purpose of accrued benefits; and (4) a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the purpose of accrued benefits have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The appellant filed a claim for accrued benefits within one year of the Veteran's death. 2. Prior to February 14, 2006, the Veteran's bilateral hearing loss was manifested at worst by Level IV hearing loss in the right ear and Level II hearing loss in the left ear. 3. From February 14, 2006 and prior to June 4, 2007, the Veteran's bilateral hearing loss was manifested by at worst Level IV hearing loss in the right ear and Level III hearing loss in the left ear. CONCLUSION OF LAW The criteria for initial ratings in excess of 0 percent prior to June 20, 2005, and in excess of 10 percent from June 20, 2005, to June 4, 2007, for bilateral hearing loss have not been met for the purpose of accrued benefits. 38 U.S.C.A. §§ 1155, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 3.1000, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With regard to the appellant's claim for disability ratings in excess of 0 and 10 percent for bilateral hearing loss for accrued benefits purposes, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the appellant prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO did not provide a VCAA notice letter to the appellant informing her of how to substantiate a claim for accrued benefits. However, the Board finds that the RO's omission is not prejudicial to the appellant because the April 2009 rating decision granted her claim for accrued benefits. In addition, for an accrued benefits claim, VA may consider only the evidence on file on the date of the Veteran's death. VA was not required to provide assistance to the appellant in obtaining additional evidence. While evidence on file at the time of the Veteran's death is deemed to include certain VA and service department records that are considered to be in the constructive possession of VA, nothing in the claims file suggests that additional VA or service department records exist that are relevant to this claim. Hayes v. Brown, 4 Vet App. 353, 360-61 (1993). While the law provides for payment to a surviving spouse of any periodic monetary benefits to which the deceased beneficiary was entitled at the time of death, as a matter of law, the evidence which may be considered is limited to the evidence on file on the date of the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. 3.1000(a). Thus, there is no further duty to attempt to obtain or create additional evidence to substantiate the accrued benefits claim because evidence submitted after the Veteran's death may not be considered. The Board notes that since the issue of entitlement to initial increased ratings for bilateral hearing loss is a downstream issue from that of service connection (for which a VCAA letter was duly sent to the Veteran in August 2003), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. 5103(a), notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). Nevertheless, the Board notes that the Veteran was provided additional VCAA notice regarding the information and evidence necessary to establish an increased rating for bilateral hearing loss in letters dated in February 2006, August 2006, and April 2007. In addition, since February 2006 and prior to her October 2007 claim for accrued benefits, the appellant had submitted several statements attesting to the effects of the Veteran's hearing loss and asserting in April 2007 that his hearing had "degraded substantially in the past two years." Therefore, even during the pendency of the Veteran's appeal, the evidence reflects that the appellant herself had actual knowledge that the evidence must show that the Veteran's bilateral hearing loss had become worse to support the claim for an increased rating. In summary, the appellant has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of her claim. All relevant evidence necessary for an equitable disposition of the appellant's appeal of this issue has been obtained and the case is ready for appellate review. VA has complied with general due process considerations. See 38 C.F.R. § 3.103 (2013). Criteria & Analysis An April 2009 rating decision increased the initial assigned rating for bilateral hearing loss to 100 percent, effective from June 4, 2007. The appellant seeks a 100 percent rating from the date that the Veteran's pending claim was received on July 23, 2003. However, in her March 2010 substantive appeal, the appellant acknowledged that "while it may not be high enough to be rated 100 [percent]" she believed "it should be rated more than the 10 percent that he was being paid." She requested a "review of the records to determine if the 10 [percent] is accurate." Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2013); 38 C.F.R. § 3.1000 (2013). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5) (2013). Although a veteran's claims terminate with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claims by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2013); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). While an accrued benefits claim is separate from the veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). In a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death. There is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.1000(a),(d)(4); see Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). Parenthetically, the Board notes that the law was amended to remove the two-year limitation on accrued benefits so that a veteran's survivor may receive the full amount of an award for accrued benefits. The Veterans Benefits Act of 2003, § 104, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). This amendment is applicable only with respect to deaths occurring on or after December 16, 2003; thus, it is applicable in the present case. At the time of the Veteran's death, he had a pending claim of entitlement to an initial compensable rating for bilateral hearing loss prior to June 20, 2005 and in excess of 10 percent from June 2005, and other pending claims as noted above. The Board finds that the issue on appeal of an initial increased rating for bilateral hearing loss was properly before the Regional Office at the time of the Veteran's death and that the appellant filed a claim for accrued benefits within a year of his death. Thus, the Board will determine the appellant's claim on their merits. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods in addition to those already assigned for bilateral hearing loss. The Veteran was assigned an initial noncompensable rating for bilateral hearing loss prior to June 20, 2005, and an initial 10 percent rating from June 20, 2005, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). A 100 percent rating for bilateral hearing loss was assigned from June 4, 2007. The assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (using the Maryland CNC) together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. See 38 C.F.R. § 4.85 (2013). 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). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VIA* Numeric designation of hearing impairment based only on puretone threshold average Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI *This table is for use only as specified in §§ 4.85 and 4.86. Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100) Poorer Ear Better Ear XI 100 X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral. See 38 C.F.R. § 4.86 (2013). In July 2003 the Veteran underwent a VA audiology consultation. These findings were reported in graphic instead of numeric form, but appear to read as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 30 35 50 85 50 LEFT 25 25 45 75 43 Results of a speech discrimination test were reported as 80 percent in the right ear and 94 percent in the left ear. It is not clear from the report whether the Maryland CNC was used. Assuming for the sake of argument that the Maryland CNC was used, and applying the above apparent results to Table VI, a puretone threshold average of 50 decibels and a speech discrimination of 80 percent in the right ear results in Level IV hearing for that ear. A puretone threshold average of 43 decibels and a speech discrimination of 94 percent in the left ear results in Level I hearing for that ear. Under Table VII, a Level IV for the right ear combined with a Level I for the left ear results in a noncompensable evaluation. After the consultation, the audiologist advised the Veteran to apply for service connection for bilateral hearing loss and to return after service connection was established to order hearing aids. In September 2003, the Veteran underwent a VA audiology examination. Pure tone thresholds, in decibels, were reported as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 30 35 50 90 51 LEFT 30 25 50 80 46 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 94 percent in the left ear. Applying the above results to Table VI, a puretone threshold average of 51 decibels and a speech discrimination of 80 percent in the right ear results in Level IV hearing for that ear. A puretone threshold average of 46 decibels and a speech discrimination of 94 percent in the left ear results in Level I hearing for that ear. Under Table VII, a Level IV for the right ear combined with a Level I for the left ear results in a noncompensable evaluation. Subjectively, the Veteran reported military noise exposure as a pilot in combat, working in office settings after service, and he denied noisy hobbies. On an audiological case history (VA Form 10-1162), noise, telephone, TV, groups, restaurants, church or synagogue, and riding in cars were circled as the situations of greatest difficulty with respect to his hearing loss. During a September 2003 VA examination for his hands approximately one week later, the Veteran reported working as a production manager in a gold electronic plating business for about ten years until 1987 when he became a video store owner until he retired by selling the store in 1996 or 1997. Since his retirement, he had done a little bit of gardening work and computer activities. In multiple statements made in support of a higher initial ratings for bilateral hearing loss, the Veteran asserted that his hearing had degenerated further since filing his claim, reporting "escalating hearing problems," and since VA audiological examinations. He also described the difficulty he had during conversations, with background noise, and while watching TV. He believed that his hearing loss disability had a negative impact on his employment potential and on relationships with others, who perceived him as yelling because he spoke loudly. The appellant also described in written statements the Veteran's difficulties with hearing loss in many situations. She also reported that emergency sounds in the high frequency range, alarm systems, and other high-pitched alarm sounds were not audible to him. As a result of these hearing problems, the Veteran was "no longer able to operate a motor vehicle or machinery." (See Feb. 11, 2006 statement). In May 2007, she indicated that the Veteran "cannot understand the spoken word if more than one person in the room is talking." In April 2005, the Veteran again underwent a VA audiology examination. Pure tone thresholds, in decibels, were reported as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 45 60 70 90 66 LEFT 50 70 75 90 71 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 94 percent in the left ear. Applying the above results to Table VI, a puretone threshold average of 66 decibels and a speech discrimination of 80 percent in the right ear results in Level IV hearing for that ear. A puretone threshold average of 71 decibels and a speech discrimination of 94 percent in the left ear results in Level II hearing for that ear. Under Table VII, a Level IV for the right ear combined with a Level II for the left ear results in a noncompensable evaluation. The Veteran again reported that he had worked in management in office environments after service and denied noisy hobbies. The Veteran was seen during a VA audiology consultation one week later in April 2005 and requested hearing aids. Additional audiometric testing data were not reported; however, the audiologist commented that screening of hearing did not show any significant changes in thresholds. During an August 2005 VA general medicine follow-up visit, the Veteran's physician assessed the Veteran's hearing loss as stable. The Veteran was afforded another VA audiology examination on February 14, 2006. Pure tone thresholds, in decibels, were reported as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 40 40 70 90 60 LEFT 35 40 65 95 59 Speech audiometry revealed speech recognition ability reported as follows: CNC RIGHT CNC LEFT 80%@75dB HL 88%@70dB HL 84%@81dB HL 80%@76dB HL Speech recognition was also reported as 84 percent in the right ear and 88 percent in the left ear. The Veteran disclosed that non-military noise included some small power tools. Parenthetically, the Board notes that the VA "Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations" (Audiology Handbook) sets for procedures for speech recognition testing and for modified performance-intensity function testing when "speech recognition is worse than 94 [percent] after presentation of a full list (50 words). See Audiology Handbook 9 (2004), available at http://vaww.sites.lrn.va.gov/vacatalog/Attachments/DXCLNEESS317/10A%20Change%20Pg47%20BPCP12-10-1%20with%20cover.pdf. The Board finds that the RO used the correct speech recognition scores of 80 for the right ear and 88 for the left ear in the May 2006 rating decision based on the procedures outlined in the Audiology Handbook. Applying the above results to Table VI, a puretone threshold average of 60 decibels and a speech discrimination of 80 percent in the right ear results in Level IV hearing for that ear. A puretone threshold average of 59 decibels and a speech discrimination of 88 percent in the left ear results in Level III hearing for that ear. Under Table VII, a Level IV for the right ear combined with a Level III for the left ear results in a 10 percent evaluation. In a September 2006 addendum, the February 2006 audiologist indicated that due to his hearing loss, the Veteran would have difficulty understanding speech in a work environment where oral communication is necessary, especially in less than ideal listening situations such as when background noise is present. She added that he would do better when wearing amplification, but would still need to take advantage of visual cues. The Veteran was afforded a final VA audiology examination on June 4, 2007. Pure tone thresholds, in decibels, were reported as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 70 80 95 110 89 LEFT 65 85 95 105 88 Speech audiometry revealed speech recognition ability of 8 percent in the right ear and 32 percent in the left ear. Applying the above results to Table VI, a puretone threshold average of 89 decibels and a speech discrimination of 8 percent in the right ear results in Level XI hearing for that ear. A puretone threshold average of 88 decibels and a speech discrimination of 32 percent in the left ear results in Level XI hearing for that ear. Under Table VII, a Level XI for the right ear combined with a Level XI for the left ear results in a 100 percent schedular rating. Subjectively, the Veteran reported the situations of greatest difficulty as quiet, noise, telephone, TV, groups, restaurants, church, and riding in a car. He described his history of military noise exposure, denied occupational noise exposure, and reported recreational noise exposure to small arms. The audiologist noted that she could not maintain a seal for acoustic immittance, bilaterally. The audiologist also commented that the "Veteran would not or could not respond to his true hearing thresholds. The [speech reception thresholds] are better than the pure tone results and this Veteran was able to communicate without the use of hearing aids fairly effective[ly] during the case history intake." The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for initial ratings in excess of 0 percent prior to June 20, 2005, and in excess of 10 percent from June 20, 2005 for bilateral hearing loss for the purpose of accrued benefits. Moreover, the Board finds that a preponderance of the evidence is against a claim for a compensable rating for bilateral hearing loss prior to February 14, 2006, and in excess of 10 percent from February 14, 2006, but prior to June 4, 2007. In this regard, the Board notes that in the May 2006 rating decision the RO increased the initial rating for bilateral hearing loss to 10 percent, effective from June 20, 2005, which the RO noted was "the date [his] claim for increase was received." In fact, in a June 20, 2005 statement, the Veteran had asserted that his hearing loss was substantially worse than the results obtained from the recent VA examination; however, his appeal for an initial higher rating for bilateral hearing loss had already been perfected. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997). Here, the Veteran's claim for service connection was received in July 2003, and he disagreed with the assigned initial noncompensable rating in February 2004. Objective audiology testing first revealed results consistent with a compensable, 10 percent rating on February 14, 2006. The Board finds that it is factually ascertainable that an increase in hearing loss disability had occurred on VA examination in February 2006. The February 14, 2006 date of entitlement is later than the initial claim for service connection and the Veteran's February 2004 disagreement with the initial assigned rating. Therefore, the correct effective date for the increased rating of 10 percent for bilateral hearing loss is February 14, 2006. Nevertheless, the Board will not disturb the effective date of June 20, 2005 assigned by the RO. The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities. The February 2006 VA examiner's addendum report included her assessment of the effects of the Veteran's hearing loss on his occupational functioning and was consistent with the Veteran's statements and appellant's observations regarding particular difficulty in listening situations involving background noise. Accordingly, the February 2006 VA examination findings with the September 2006 addendum opinion provided the requisite information concerning the functional impact of his hearing loss and included objective examination data in accordance with the requirements set forth in 38 C.F.R. § 4.85(a). While the Board acknowledges the Veteran's complaints and appellant's observations regarding the functional impact that his hearing loss had on his daily life, the Board reiterates that the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. The findings on each examination prior to June 4, 2007 are more probative than the lay contentions as to the extent of hearing loss. In this regard, the Board observes that while the Veteran had reported "escalating hearing problems" and the appellant reported that his hearing had "degraded substantially," the objective findings prior to June 4, 2007 reflected generally stable hearing impairment for VA compensation purposes. Parenthetically, the Board notes that neither the Veteran nor the June 2007 audiologist, nor contemporaneous statements from the appellant, identified any additional acoustic trauma or medical condition between the February 2006 VA examination and the June 4, 2007 examination 16 months later to account for the profound change in hearing acuity equivalent to a 100 percent schedular rating apparently shown on examination in June 2007 versus the 10 percent rating for VA compensation purposes in February 2006. The Board also observes that the June 2007 audiologist appeared to question the Veteran's effort on audiological testing as he "would not or could not respond to his true hearing thresholds," pointing to the apparent discrepancy between the Veteran's ability to "communicate without the use of hearing aids fairly effective[ly] during the case history intake" and the pure tone results, which were also noted to be worse than the speech reception thresholds. Moreover, between the July 2003 audiological consultation and the April 2005 VA examination, the right ear puretone threshold average increased from 50 to 60 and remained unchanged on VA examination in February 2006. Right ear speech discrimination was consistently measured as 80 percent. Similarly, left ear hearing levels increased incrementally from a Level I in 2003, to Level II in April 2005, to Level III in February 2006. At the same time, speech recognition remained constant at 94 percent between July 2003 and April 2005, dropping only 6 percent to 88 percent in February 2006. As a result, the Board is skeptical of the validity of the June 2007 VA audiological examination results because there is no explanation in the record or by the examiner to account for the profound change, because the examiner appeared to question the Veteran's effort on testing, and because the June 2007 testing results are significantly inconsistent with the prior testing results. Nevertheless, the results of June 2007 VA examination are not the subject of this appeal. In summary, the most probative evidence indicates that the Veteran's hearing loss falls clearly within the criteria for a noncompensable rating prior to February 14, 2006 and within the criteria for a 10 percent rating from February 14, 2006 until the June 2007 VA examination. Therefore, the assigned noncompensable and 10 percent ratings for bilateral hearing loss prior to June 4, 2007, were proper - though not the effective date of increase - throughout the appeal period and higher ratings for bilateral hearing loss are denied. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. As there is no evidentiary basis upon which to assign a compensable rating prior to June 20, 2005 or a rating in excess of 10 percent from June 20, 2005 to June 4, 2007, there is no basis for assigning additional staged ratings other than those already established. See Fenderson v. West, 12 Vet. App. 119 (1999). The appellant's claim for an increased rating for bilateral hearing loss for accrued benefits purposes is denied. As a final matter, the Board has considered whether the Veteran's bilateral hearing loss disability presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably described the Veteran's disability level and symptomatology, and provided for higher ratings for more severe hearing loss than is shown by the evidence for the entire appeal period prior to the 100 percent schedular rating assigned from June 4, 2007. Thus, the Veteran's disability picture was contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to initial ratings in excess of 0 percent prior to June 20, 2005, and in excess of 10 percent from June 20, 2005, to June 4, 2007, for bilateral hearing loss for the purpose of accrued benefits is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs