Citation Nr: 1335462	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  11-20 283	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a compensable rating for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Nebraska Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

George R. Waddington, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to February 1968.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The Veteran's bilateral hearing loss is productive of a puretone threshold average of 56.25 decibels (dB) and speech recognition ability of 86 percent in the right ear and a puretone threshold average of 50 dB and speech recognition ability of 82 percent in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for a bilateral hearing loss disability have not been met during the pendency of this claim.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the veteran to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

 VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist veterans in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the veteran under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the veteran has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

In order to satisfy the first notice element in an increased rating claim, VA must notify the veteran that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vazquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vazquez-Flores II).  Further, the veteran must be notified that a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate an increased-rating claim is not provided at all, it is the veteran's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-07.  

Prior to the rating decision in this matter, a March 2011 letter satisfied the above notice requirements and informed the Veteran of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim.  Therefore, the duty to notify is satisfied.  See id.


VA's duty to assist under the VCAA includes helping the veteran to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

The Veteran's service treatment records and VA treatment records are in the claims file.  He has not identified any other records or evidence that remains outstanding.  The duty to obtain relevant records is satisfied.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.   Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

An appropriate VA audiology examination was performed in April 2011.  The examination report is adequate for rating purposes because the examiner reviewed the medical history, performed an examination that included audiological testing, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994).  The examiner also addressed functional impairment associated with the Veteran's hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) (holding, in relevant part, that the veteran bears the burden of demonstrating any prejudice with regard to the examiner's discussion of functional impairment).   Further examination or opinion on the issue is not warranted.  See id.

Although the examiner did not have the claims file available for review, this did not affect the inadequacy of the examination.  When an increased rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The examiner's task was to evaluate the Veteran's bilateral hearing loss disability as it manifested during the time of the examination.  In this respect, the examiner examined the Veteran, recorded all pertinent clinical findings, and considered his relevant medical history.  There is no indication that a review of the Veteran's claims file would alter the examiner's findings regarding how the Veteran's bilateral hearing loss disability manifested on the day of the examination, or that lack of such review otherwise impacted its adequacy.  See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (noting that review of claims file not required when such review would not change objective findings made on examination); Mariano v. Principi, 17 Vet. App. 305, 311-312 (2003) (noting that range-of-motion measurements are not conclusions drawn by a VA examiner that would be affected by review of the claims file).  Thus, the April 2011 audiological examination is adequate and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407 (2009) (holding that whether prejudicial harm exists is a case-by-case determination). 

The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his bilateral hearing loss disability since he was last examined in April 2011.  See 38 C.F.R. § 3.327(a).  The Veteran received hearing aids in June 2011; however, he was being fitted for the hearing aids at the time of the April 2011 VA examination and the receipt of new hearing aids in June does not indicate a material change in the severity of his bilateral hearing loss.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95 (April 7, 1995).  Thus, VA's duty to obtain a VA examination has been met.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

Accordingly, VA has satisfied its duties to notify and assist and, therefore, the Board may proceed with appellate review.

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  See 38 C.F.R. § 4.14.  However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided.  Id.

In increased rating cases, VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim; this practice is known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  In evaluating service-connected hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  See 38 C.F.R. § 4.85.  The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness.  See id.  VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  Id.  Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average from the speech audiometry test and the results of the speech discrimination test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  See id.  The horizontal columns in Table VI represent nine categories of dB loss based on the puretone audiometry test.  See id.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone dB loss.  Id.

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI).  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See id.

The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board must assess the credibility and weight of all evidence, including both lay and medical evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

With regard to the competency of the evidence, lay statements submitted by or on behalf of a veteran can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Thus, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See id. (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the veteran's testimony on this issue as not competent merely because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  Barr, 21 Vet. App. at 309; see also Jandreau, 492 F. 3d at 1376-77 (observing that a lay person is not competent to identify more complex conditions such as a form of cancer).  For example, the Court held that a veteran was not competent to determine whether he had rheumatic fever, which was a medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  

The Board must discount the probative value of lay evidence if it finds such evidence not to be competent in light of the above guidelines.  See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (noting that lay evidence must "demonstrate some competence") (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted)); see also Layno, 6 Vet. App. at 469 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to that fact, and that incompetent testimony must be excluded from consideration).  

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1); see also Layno, 6 Vet. App. at 469.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  38 C.F.R. § 3.159(a)(1).  It also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (observing that the credibility and weight of testimony are factual determinations that must be distinguished from the initial assessment of its competency); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

The April 2011 VA audiological examination report shows that the Veteran had puretone thresholds, in decibels, as follows:



HERTZ


Average

1000
2000
3000
4000

RIGHT
10
50
80
85
56.25
LEFT
15
50
65
70
50

The examiner noted that the audiogram shows that the right ear had a puretone average of 56.25 dB and the left ear had a puretone threshold of 50 dB.  A speech discrimination test using the Maryland CNC word list revealed speech recognition ability of 86 percent in the right ear, and 82 percent in the left ear.  The examiner rendered a diagnosis of mild to severe sensorineural bilateral hearing loss.

Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  Because the right ear had a puretone average of 56.25 dB and a speech recognition score of 86 percent, it receives a designation of II in Table VI.  See id.  Because the left ear had a puretone average of 50 dB and a speech recognition score of 82 percent, it receives a designation of IV in Table VI.  See id.  The point where designations II and IV intersect on Table VII reflects the disability level for the Veterans bilateral hearing loss, which is assigned a noncompensable evaluation (zero) under Table VII.  See 38 C.F.R. § 4.85, DC 6100.  

VA regulation also includes two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience.  However, this provision accounts for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, as a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  See id.  Based on the Veteran's puretone threshold results in the April 2011 VA audiological examination report, these provisions do not apply.

The Board has considered the functional impairment caused by the Veteran's hearing loss disability.  In his March 2012 statement and July 2011 substantive appeal (VA Form 9), the Veteran claimed that his bilateral hearing loss limits his ability to work and to function socially.  During an April 2011 VA audiological consultation, the Veteran reported that his hearing loss requires him to increase the volume on the television and makes background noise bothersome.  However, the April 2011 VA examination report states that the Veteran's hearing loss had no effect on his usual daily activities and indicates that the Veteran continues to work as a mechanic.  During the same month the Veteran reported that his hearing loss does not affect his work.  Finally, the Veteran "reported good aided gain and a satisfactory sound quality with the new hearing aids" that he received in June 2011 and was given a good prognosis from his VA audiologist.

The functional impairment described above does not warrant a compensable rating.  The challenges associated with the Veteran's hearing loss are contemplated by the rating criteria, which take into account the average impairment resulting from service-connected disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The functional impairment described by the Veteran does not establish entitlement to a higher rating absent audiometric and speech discrimination scores showing that his hearing loss has met the schedular criteria for a compensable rating.  See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349.

Accordingly, based on the results of the April 2011 audiological test, the Veteran's bilateral hearing loss disability has not met the schedular criteria for a compensable rating at any time during the pendency of this claim.  See 38 C.F.R. §§ 4.85, 4.86.  Although the Veteran contends that his hearing loss is more disabling than contemplated by the noncompensable rating assigned, for the reasons discussed above, the competent evidence of record, including the Veterans lay statements, does not show that the legal criteria for a compensable rating have been met.  Thus, a compensable rating is not warranted for the time period on appeal.  See Fenderson, 12 Vet. App. at 126.

The Veteran has not alleged, and the record does not otherwise show, that he is unable to engage in substantially gainful employment due to his hearing loss disability.  In fact, the April 2011 VA examination indicates that the Veteran was working at the time of the examination.  Thus, this appeal does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU).  See 38 C.F.R. §§ 3.340, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that if the veteran or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is warranted).

The evaluation of the Veteran's bilateral hearing loss disability does not warrant referral for extraschedular consideration.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, the Board may refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a  veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In making this determination, the Board must compare the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  See id.  If the rating criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the veteran's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the veteran's disability picture requires the assignment of an extraschedular rating.  Id.

A comparison of the Veteran's hearing loss and associated functional impairment and the schedular criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  The Veteran's bilateral hearing loss disability is manifested by difficulty hearing conversations and communicating with others as well as hearing other sound sources such as television.  These symptoms and functional impairment are contemplated by 38 C.F.R. § 4.85, DC 6100.  Although the rating criteria applicable to hearing loss are not based on symptoms or functional impairment-they are based on the numeric results of objective audiological testing-the criteria are designed with a view toward compensating symptoms and functional impairment.  Specifically, all schedular criteria are meant to take into account the average impairment in earning capacity resulting from service-connected disabilities.  See 38 C.F.R. § 4.1.  As stated in 38 C.F.R. § 4.21, "[c]oordination of rating with impairment of function will . . . be expected in all instances."  Thus, although a particular diagnostic code may provide for evaluations of a disability in terms of objective clinical data rather than symptoms or functional impairment-as is the case with hearing loss disabilities-the ratings are designed to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly with regard to how the symptoms and functional impairment affect earning capacity.  The Veteran's difficulty with hearing and communicating is thus contemplated by the rating criteria for hearing loss.  The mere fact that the ratings do not mention such symptoms or functional impairment cannot be a basis in and of itself for extraschedular referral.  As noted in Thun, the rating criteria are averages and need not account for individual circumstances in order to be adequate for evaluation purposes.  There is no evidence that the Veteran's hearing loss disability is unusual or exceptional, including with regard to symptomology or severity.

In summary, there are no symptoms or functional impairment associated with the Veteran's hearing loss left uncompensated or unaccounted for by the assignment of a schedular rating.  See Thun, 22 Vet. App. at 115.  Thus, the available schedular evaluations are adequate to rate this disability, and the first step of the inquiry is not satisfied.  See id.  In the absence of uncompensated or unaccounted symptoms or functional impairment, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See id. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the veteran's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Moreover, such factors have not been alleged or shown.  Therefore referral for extraschedular consideration is not warranted.  See id.

The preponderance of the evidence is against the Veteran's claim.  Thus, the benefit-of-the-doubt rule does not apply, and entitlement to an increased compensable rating for bilateral hearing loss disability is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.





ORDER

Entitlement to a compensable rating for a bilateral hearing loss disability is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs