Citation Nr: 1334449	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO. 07-30 972A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Los Angeles, California


THE ISSUE

Entitlement to a rating in excess of 10 percent for bilateral hearing loss, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel
INTRODUCTION

The Veteran had active military service from December 1963 to November 1965.

This appeal to the Board of Veterans' Appeals (Board) arose from a July 2006 rating decision in which the RO, inter alia, denied a rating in excess of 10 percent for bilateral hearing loss (previously rated as left ear hearing loss only).  The Veteran filed a notice of disagreement (NOD) in October 2006, and the RO issued a statement of the case (SOC) in August 2007. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in October 2007. The RO continued to deny a higher rating (as reflected in a March 2009 supplemental SOC (SSOC)).

In May 2011, the Veteran testified during a Board hearing before a Veterans Law Judge at the RO; a transcript of the hearing is of record.

In August 2011, the Board remanded the claim on appeal for further development, to include obtaining additional medical evidence. After accomplishing further action, the AMC continued to deny the claim for an increased rating for bilateral hearing loss (as reflected in a November 2011 SSOC), and returned the matter to the Board for further appellate consideration.

In January 2012, the Board notified the Veteran that the Veterans Law Judge who conducted the May 2011 hearing was no longer employed by the Board, and offered the Veteran an opportunity to appear at a hearing before another Veterans Law Judge who would participate during the hearing.  The Veteran elected to appear at another hearing, and in February 2012, the Board remanded the claim to schedule the requested Board hearing. 

In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. 

In September 2012, the Board remanded the claim on appeal for further development, including a new VA examination, and for extra-schedular consideration.  The AMC continued to deny the increased rating claim (as reflected in an August 2013 SSOC), and returned this matter to the Board.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims.  A review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  Pertinent to the February 2006 claim for increase, audiometric testing has revealed no worse than Level I hearing in the right ear and Level XI hearing in the left ear.

3.  At no point pertinent to this appeal has the Veteran's hearing loss been shown to be so exceptional or unusual, with related factors such as marked interference with employment, or repeated hospitalizations, as to render the schedular criteria inadequate and to warrant a higher rating on an extra-schedular basis.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.86, Diagnostic Code 6100 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 & Supp. 2013)) 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) (2013).

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 have 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 (in this case, 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. 

Pursuant to a prior remand, an October 2012 post-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of a claim for increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  That letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. It further specifically informed the Veteran to 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).  This letter meets the Pelegrini and Dingess/Hartman content of notice requirements (as applicable). 

After the RO sent the Veteran the above-noted letter, and afforded him opportunity to respond, the claim was readjudicated in an August 2013 SSOC.  Hence, the Veteran is not shown to be prejudiced by the timing of this VCAA 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).

Additionally, the August 2007 SOC set forth the criteria for higher ratings for hearing loss, and the August 2013 SSOC set forth the criteria for a higher, extra-schedular rating (the timing and form of which suffices, in part, for Dingess/Hartman).  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records.  Also of record and considered in connection with the appeal are the transcripts of the Veterans two Board hearings, along with various written statements provided by the Veteran, and by his representative, on his behalf.  The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required.

Consistent with the August 2011 Board remand, the AMC obtained a new VA examination in September 2012.  Also consistent with the February 2012 Board remand, VA provided a new Board hearing to the Veteran in June 2012.  Pursuant to the September 2012 Board remand, VA also obtained a new January 2013 VA examination, and considered the claim for higher rating on an extra-schedular basis. In an October 2012 letter, VA also requested that the Veteran provide any additional evidence for his claim.  As the Veteran did not provide the requested information, no further RO action in this regard is required. 

As for the Veteran's Board hearings, it is noted that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer (interpreted to include a Veterans Law Judge) who chairs a hearing to fulfill two duties: (1) to fully explain the issues, and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, the May 2011 Veterans Law Judge and the undersigned Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim.  Although no specific evidence was explicitly suggested, the Veteran reported treatment from the Dallas VA Medical Center; those records are associated with the claims file.  The May 2011 Veterans Law Judge also provided the Veteran a 60 days to obtain more current medical evidence, if he so wished.  The undersigned directed the request of treatment information from the Veteran, which the AMC provided in an October 2012 letter.  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been met, and the hearings are legally sufficient.  

In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, 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 the 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 any of the matter herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks 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 examination. Evaluations of 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 audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second. 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. § 4.85, Diagnostic Code 6100. 

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. 

Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the pure tone threshold is 55 decibels at each of the four specified frequencies from 1000 to 4000 Hertz, or is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) and (b).

The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

Historically, in an April 2003 rating decision, the RO initially granted service connection for left ear hearing loss, and assigned an initial 10 percent disability rating.  Pursuant to the current February 2006 claim for increase, in a July 2006 rating decision, the RO granted service connection for right ear hearing loss and continued the assigned 10 percent rating. 

On March 2006 VA audiological evaluation, audiometric testing revealed the following pure tone thresholds, in decibels,:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
10
15
25
40
23
LEFT
65
70
85
100
80

Pure tone threshold averages were 23 decibels (dB) in the right ear and 80 dB in the left ear. Speech discrimination scores were 98 percent in the right ear, 12 percent in the left ear. The audiologist found that, as for the right ear, the Veteran had a mild to moderate high pitched sensorineural hearing loss above 2k Hz for the right ear and a moderate to profound sensorineural type hearing loss in his left ear. 

In May 2011, the Veteran indicated difficulty working due to coworkers believing he was ignoring them, when he could not hear them. Also, he indicated that he could not transfer the phone receiver from one ear to the other, which caused ear soreness. 

The Veteran underwent VA audiological evaluation in June 2011.   However, the testing then conducted did not include Maryland CNC speech discrimination testing.  As such, those findings cannot be used for rating purposes.  See 38 C.F.R. § 4.85 (hearing impairment examination for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test).

Audiometric testing conducted during a September 2011 VA audiological evaluation revealed the following pure tone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
5
10
30
35
20
LEFT
65
65
80
90
75

Pure tone threshold averages were 20 dB in the right ear and 75 dB in the left ear. Speech discrimination scores were less than 96 percent in the right ear and at 04 percent in the left ear. The audiologist found that the Veteran had right ear sensorineural hearing loss and left ear mixed hearing loss. 

The September 2011 report reflects the Veteran's contentions of having difficulty with occupational functioning and daily activities, because his clients have to sit to his right and his co-workers thought that he was ignoring them or was angry with them. He also had to use his right ear for the phone and raise the volume on the television. 

During his June 2012 Board hearing, the Veteran again noted difficulty at work due to his coworkers believing that he was ignoring them and his inability to transfer the phone receiver from one ear to the other.  He also testified that he stopped working due to the loss of funding for his organization, which led to his retirement.

Audiometric testing conducted during a September January 2013 VA audiological evaluation revealed the following pure tone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
20
30
45
45
35
LEFT
75
80
95
100
87.5

Pure tone threshold averages were 35 dB in the right ear and 87.5 dB in the left ear. Speech discrimination scores were 96 percent in the right ear and at 12 percent in the left ear.  The audiologist found sensorineural hearing loss of the right ear and mixed hearing loss of the left ear. 

The January 2013 VA examiner also noted that the Veteran reported having a hard time communicating in noisy situations, such as dinner parties, meetings or lectures. The Veteran also reported that he used captions on his television. 

In a February 2013 addendum, the January 2013 VA examiner noted that his January 2013 findings supported an increase in bilateral hearing loss based on increased puretone average. The VA examiner also noted that the bilateral hearing loss affected the Veteran's ability to communicate and to use the telephone. The VA examiner found that the Veteran would likely have greater than normal difficulty working in noisy or reverberant environments. The VA examiner further noted that the Veteran may not be able to perform jobs that require frequent verbal communication with coworkers or clients or group settings or business over the telephone. However, the VA examiner indicated that the Veteran may be employable in fields that involve one on one customer contact in a quiet environment and that the Veteran would be able to entertain both physical and sedentary employment.

Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluation in March 2006 reveals no worse than Level I hearing in the right ear and Level IX hearing in the left ear, based on application of the reported findings to Table VI. Application of these findings to Table VII, using the highest level available for the left ear, corresponds to a noncompensable percent rating under 38 C.F.R § 4.85, Diagnostic Code 6100. 

The Board further observes that the pure tone thresholds recorded on the VA audiological evaluation in March 2006 reflect exceptional hearing impairment as defined by regulation in the left ear only, as pure tone thresholds at each of the four specified frequencies was 55 decibels or more. However, application of the reported findings to Table VIa results in no worse than Level VII hearing in the left ear, with the right ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level I hearing. Application of these findings to Table VI corresponds to a noncompensable percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Hence, a higher rating also is not is not warranted under 38 C.F.R. § 4.86(a) for the hearing loss. 

When considering the findings of the September 2011 VA examination, the results reveal no worse than Level I hearing in the right ear and Level XI hearing in the left ear, based on application of the reported findings to Table VI.  Application of these findings to Table VII, using the highest level available for the left ear, corresponds to a 10 percent rating, such as the Veteran's current rating, under 38 C.F.R § 4.85, Diagnostic Code 6100. 

The Board again notes that the Veteran's left ear findings reflect exceptional hearing impairment.  The application of the left ear findings to Table VIa results in no worse than Level VI hearing in the left ear, with the right ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level I hearing.  Application of these findings to Table VI corresponds to a noncompensable percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

Similarly, the results of the January 2013 VA examination correspond to Level I hearing in the right ear and Level XI hearing in the left ear.  Applying these findings to Table VII results in a 10 percent disability rating under 38 C.F.R § 4.85, Diagnostic Code 6100. 

When applying the Veteran's the Veteran's left ear findings (which reflect exceptional hearing impairment) to Table VIa, the findings correspond to Level VIII hearing in the left ear, with the right ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level I hearing. Application of these findings to Table VI corresponds to a noncompensable percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

The Board has carefully considered the Veteran's assertions as to the severity of his hearing loss, and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  The Board also notes that the Veteran has claimed that his hearing loss should be rated higher now that both of his ears have been service connected.  However, it must be emphasized that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination as to the schedular rating on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited and discussed in the August 2013 SSOC).

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 schedular 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.

There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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, 4 Vet. App. at 60. 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). See also Thun, supra.

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). 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 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.

The Veteran has reported numerous employment problems caused by his hearing loss.  During his May 2011 and June 2012 Board hearings, he indicated difficulty working due to his coworkers believing that he was ignoring them, when in fact he just could not hear them.   He also indicated that he could not transfer the phone receiver from one ear to the other, which caused ear soreness.  Additionally, during his September 2011 VA examination, the Veteran reported that his clients had to sit to his right.  During his January 2013 VA examination, he reported difficulty communicating in noisy situations, such as meetings.

In the February 2012 Board remand, the Board found that the Veteran's contentions regarding his hearing difficulty, including those made during his Board hearings, warranted extra-schedular consideration.  The Board also noted that the AMC had not considered 38 C.F.R. § 3.321 in the adjudication of the Veteran's claim for an increased rating for bilateral hearing loss.  Thus, to avoid any prejudice to the Veteran, the Board directed the AMC to consider the matters of higher, extra-schedular ratings for bilateral hearing loss in the first instance.

The AMC subsequently obtained an August 2013 opinion from the Director of VA's Compensation and Pension (C&P) Service.  The Director noted that the Veteran had previously reported that a great deal of his responsibility as a mental health worker rested in his ability to hear and answer telephone calls, which he found difficult due to his hearing loss.  The Director noted that, although the January 2013 VA examiner found that although the Veteran may not be able to perform jobs requiring frequent verbal communication with coworkers and clients or in group settings or on the telephone, the Veteran was employable in fields with one-on-one customer contact in quiet environment.  The Director found that although there is evidence of impairment with telephone contact, the environment most conducive to mental health counseling (i.e. one-on-one customer contact) was also the environment least likely to be affected by the Veteran's service-connected disability.  

The Director further found that the January 2013 VA examination showed no exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent hospitalizations.  The Director reiterated that the environment least affected by the Veteran's hearing impairment is the environment in which clients are counseled.  The Director further noted that there was no evidence of frequent hospitalization in the claims file.  

The Director also noted that with regards to telephone duties, the Veteran complained of outer ear (auricle) soreness, not increased difficulty hearing at the end of the day.  The Directed pointed out that there was a possibility that the Veteran may be issued a telephone with speaker capabilities to overcome this hardship.

The Director thus found that although there is evidence of impairment, it was not so marked as to render the rating schedule impracticable.  Although the Veteran may experience some impairment, the Director found that it was adequately addressed by the rating schedule and thus the impairment did not rise to a level warranting an extra-schedular rating.

In the August 2013 SSOC, the AMC subsequently considered 38 C.F.R. § 3.321 in the adjudication of the Veteran's claim for an increased rating for bilateral hearing loss. Specifically, the AMC found that the symptomatology and impairment caused by the Veteran's bilateral hearing loss did not demonstrate frequent periods of hospitalization and that the Veteran's level of impairment was contemplated by the rating schedule.  The AMC found that the Veteran did not have marked interference with employability that would rise to the level required for an extra-schedular evaluation.  In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's disability, the AMC found that an extra-schedular rating was not warranted.  The Board agrees.

Even if, given the method of deriving ratings for hearing, and considering the assertions of the Veteran, the Board finds that the rating schedule does not contemplate the Veteran's particular complaints, the collective evidence simply does not reflect such an unusual or exceptional disability picture-with such factors as marked interference with employment (beyond that contemplated in the assigned 10 percent rating) or frequent treatment, much less, hospitalization-to render the schedular criteria inadequate and to warrant assignment of a higher rating on an extra-schedular basis.  Accordingly, the Board concludes that C&P Director  appropriately determined that no higher rating, on an extra-schedular basis, is warranted.

For all the foregoing reasons, the Board finds that the claim for a disability rating in excess of 10 percent for bilateral hearing loss, to include on an extra-schedular basis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, given the mechanical nature of deriving schedular ratings, and the fact that the preponderance of the evidence is against assignment of a higher rating on an extra-schedular basis, 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

A rating in excess of 10 percent for bilateral hearing loss, to include 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