Citation Nr: 1338349 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-20 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to higher initial disability ratings for the service-connected bilateral hearing loss, currently rated at 0 percent (noncompensable) prior to May 21, 2013, and 20 percent since May 21, 2013. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from January 1946 to November 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was granted service connection for bilateral hearing loss by a July 2010 Board decision. The August 2010 rating decision then assigned an initial noncompensable rating effective March 4, 2007; the Veteran then filed a substantive appeal on the initial rating. As the claim on appeal involves a request for higher initial ratings following the grant of service connection, the Board has characterized that issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from a claim for an increased rating for disability already service-connected). The Veteran testified before the undersigned at a Board videoconference hearing in January 2013. A copy of the transcript is of record. In March 2013, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Upon remand, the AMC issued another rating decision in July 2013, which increased the disability rating for the bilateral hearing loss to 20 percent. The 20 percent rating was made retroactively effective from May 21, 2013, the date of a VA examination that reflected findings sufficient to establish entitlement to a higher evaluation. The Veteran has continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). This appeal was processed using VA's Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take the existence of this electronic record into account. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to May 21, 2013, the Veteran's bilateral hearing loss was manifested by, at worst, Level II hearing in the right ear and Level III hearing in the left ear. 2. Since May 21, 2013, the Veteran's bilateral hearing loss has been manifested by Level V hearing in the right ear and Level VI hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to May 21, 2013, the criteria for a compensable initial disability rating for the Veteran's service-connected bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). 2. Since May 21, 2013, the criteria for an initial disability rating in excess of 20 percent for the Veteran's service-connected bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, 4.86, DC 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Notice and Assistance Under applicable law, VA has a 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, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable 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). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in March 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of his claim. Thus, the Board finds that VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Veteran has been awarded an initial grant of service connection for bilateral hearing loss, and he seeks higher initial evaluations for that disability. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided was sufficient to support a grant of the claim for service connection, that notice is legally sufficient, and VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs, personnel records, and post-service VA and private treatment records have been obtained. The claims file does not contain any evidence indicating that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for his bilateral hearing loss. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Veteran has also been afforded VA examinations for his claim. The record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2013). Here, the most recent VA compensation examination of the Veteran's bilateral hearing loss was in May 2013. The report of that evaluation contains all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2013). The evidence of record does not suggest that the Veteran's bilateral hearing loss has worsened. Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). With regard to the VA examinations of record, the Board calls attention to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In Martinak, the Court held that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Id. In this regard, in response to the May 2013 VA examiner's question of the functional impact of the Veteran's bilateral hearing loss, the Veteran responded that he does not hear well and has problems understanding. The May 2013 VA examiner, in a July 2013 addendum opinion, determined that the Veteran has worn in-the-ear hearing aids bilaterally for many years with excellent results. The examiner stated that the Veteran "should not have any adverse complications to his functional or daily activities as a result of his current hearing thresholds, especially when wearing his hearing aids. With amplication and reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss alone should not significantly affect vocational potential or limit participation in most activities." The Board finds that this VA medical opinion adequately describes the functional effects of the Veteran's disability, as it demonstrates that the VA examiner elicited information from the Veteran about the effects of his disability at the examination. Martinak, 21 Vet. App. at 455. In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) (2013) in considering whether referral for an extraschedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The VA Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Id. Therefore, the most recent May 2013 VA examination is not defective under Martinak. 21 Vet. App. at 455. Furthermore, the Veteran was afforded a Board hearing in January 2013. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2013); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the undersigned specifically noted the issue as "entitlement to a compensable rating for hearing loss." See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from The American Legion. Id. The undersigned noted the element of the claim that was lacking to substantiate the claim for benefits (namely, the service-connected bilateral hearing loss was getting worse and thus warranted an increased (or compensable) disability rating), and asked the Veteran questions regarding this element. See Board hearing transcript, pages 2, 9-11. The representative demonstrated his knowledge that the hearing loss disability rating is determined by entering the Veteran's current audiogram results into a specific formula. See Board hearing transcript, pages 9. The representative also asked questions to ascertain whether the Veteran had submitted evidence in support of this claim, and to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. See Board hearing transcript, pages 3-4. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, the Board finds that the undersigned complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its January 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included scheduling the Veteran for another VA audiological examination and medical opinion. The examination was provided in May 2013, and a VA addendum medical opinion was obtained in July 2013. The remand also included obtaining the Veteran's recent VA treatment records, which were obtained and associated with his claims file. Finally, the remand directed the AMC to readjudicate the Veteran's claim, which was accomplished in the August 2013 Supplemental Statement of the Case (SSOC). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that the Veteran expressed his timely disagreement with the August 2010 rating decision that implemented the Board's grant of service connection and assigned an effective date and initial disability rating. As such, the Veteran appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson, 12 Vet. App. at 119. Specifically, the Veteran is appealing the initial ratings assigned following the grant of service connection, effective March 4, 2007. Disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Id. 38 C.F.R. § 4.85. In addition, 38 C.F.R. § 4.86 specifies two exceptional patterns of hearing impairment. The first exceptional pattern exists when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In this circumstance, the rating specialist must determine the auditory acuity level for each ear from either Table VI or Table VIA, whichever results in the higher level. Id. The second exceptional pattern exists when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). In this instance, the auditory acuity level for each ear will be selected from either Table VI or Table VIA, whichever results in the higher level. Id. Then, that level would be elevated to the next higher level. Id. Facts and Analysis The Veteran is currently in receipt of a 0 percent evaluation prior to May 21, 2013, and a 20 percent evaluation since May 21, 2013, for his bilateral hearing loss under DC 6100. 38 C.F.R. §§ 4.85, 4.86. The Veteran seeks increased ratings. The Board will begin by addressing the 0 percent rating in effect from March 4, 2007, to May 21, 2013. In July 2007, the Veteran was provided a VA audiological examination. The examiner found that, "Despite repeated counseling, [the Veteran] could not or would not provide repeatable and accurate responses to presented stimuli which can be used for rating purposes. He refused to guess at the presented work stimuli for the Speech Reception Thresholds (SRTs) when they became very soft . . . Even using the SRTs, which were judged to be elevated and unreliable, the pure tone air conduction responses did not closely match the SRTs." Maryland CNC test results or puretone threshold results were not provided by the VA examiner. Accordingly, the Veteran's bilateral hearing loss cannot be evaluated utilizing the findings from the July 2007 VA examination. In July 2008, the Veteran was afforded another VA audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 20 35 45 55 65 LEFT 20 35 45 60 85 Using the Maryland CNC test, the speech recognition score for the right ear was 96 percent, and the speech recognition score for the left ear was 92 percent. The mechanical application of the above test results compels a numeric designation of Level II in the right ear and Level III in the left ear. These results do not warrant the application of Table VIa under 38 C.F.R. § 4.86(a). Consequently, the values from Table VI are used. Under Table VI (38 C.F.R. § 4.85), the designation of Level II in the right ear and Level III in the left ear requires the assignment of a 0 percent evaluation under DC 6100. 38 C.F.R. § 4.85. Additionally, the Veteran was seen by the VA Medical Center (VAMC) in November 2010 for the treatment of his bilateral hearing loss, to include a check of his current hearing aids. At this visit, his pure tone test results revealed a mild sloping to severe sensorineural hearing loss from 250 Hertz to 8000 Hertz. His word recognition ability was found to be good at levels tested in this ear. Pure tone test results of the left ear revealed a mild sloping to profound sensorineural hearing loss from 250 Hertz to 8000 Hertz. His word recognition ability was excellent at all levels tested in this ear. In March 2011, the Veteran was afforded another VA audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 60 70 59 LEFT 50 55 75 90 68 Using the Maryland CNC test, the speech recognition score for the right ear was 92 percent, and the speech recognition score for the left ear was 92 percent. The mechanical application of the above test results compels a numeric designation of Level II in the right ear and Level II in the left ear. These results do not warrant the application of Table VIa under 38 C.F.R. § 4.86(a). Consequently, the values from Table VI are used. Under Table VI (38 C.F.R. § 4.85), the designation of Level II hearing in each ear requires the assignment of a 0 percent evaluation under DC 6100. 38 C.F.R. § 4.85. The Veteran was again seen by the VAMC in June 2012 for the treatment of his bilateral hearing loss, to include a check of his current hearing aids. At this visit, pure tone test results revealed moderate to moderate-severe sensorineural hearing loss at 250-2000 Hertz and severe sensorineural hearing loss at 3000-8000 Hertz in the right ear. Word recognition ability was "excellent" (96%) at 85 dB HL. Pure tone test results revealed moderate to moderate-severe sensorineural hearing loss at 250-2000 Hertz and severe to profound sensorineural hearing loss at 3000-8000 Hz in the left ear. Word recognition ability was "good" (84%) at 85 dB HL. The remaining VA and private treatment records in the claims file do not provide contrary results to those discussed above. Thus, based on the VA examinations and the VA treatment records, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 0 percent prior to May 21, 2013, for his service-connected bilateral hearing loss. 38 C.F.R. §§ 4.85, 4.86, DC 6100. Additionally, in support of his claim, the Veteran submitted an August 2006 evaluation by Dr. A.M., who reported that audiometric testing revealed speech discrimination scores of 80 percent in the right ear and 70 percent in the left ear. Dr. A.M. also provided hearing levels in dB for each ear; however, he did not indicate if the audiometry test was puretone and if the test was conducted by bone or air conduction. As previously stated, the Veteran also underwent a VA examination in July 2007. The July 2007 VA examiner maintained that Dr. A.M.'s hearing tests were not performed according to VA's C&P protocol. The VA examiner also noted that utilizing the recorded Maryland CNC word lists (as required by the C&P protocol) the Veteran scored much better in word recognition at the examination than those records by Dr. A.M. Additionally, the examiner stated that Dr. A.M.'s testing of Tympanometry had "No Response" for contralateral acoustic reflexes, and at the examination those reflexes were present in both ears. Thereafter, the record reflects that in a November 2007 letter in reference to the August 2006 evaluation, Dr. A.M. stated that the August 2006 audiometric testing revealed a "moderate, sloping to severe, sensorineural hearing loss in the right ear. Left ear testing indicated a moderate, sloping to profound, sensorineural hearing loss." Dr. A.M. maintained that, "[a] recorded Maryland CNC word list was used to determine a performance intensity function." Also, Dr. A.M. noted that the Veteran's "Speech Recognition Threshold, using a recording of Spondee Words, was 65dB HL in both ears, thus the Maryland CNC lists were only presented at 25-35dB SL, approximately at the level of a whisper." Dr. A.M. appeared to be suggesting that the Maryland CNC word list was indeed utilized in evaluating the Veteran's hearing impairment, although in which way and to what extent is unclear. In its March 2013 remand, the Board found that a VA examiner needed to address whether in fact the Maryland CNC word list was appropriately utilized in assessing speech recognition ability on speech audiometry, and to account for the wide variances shown in the reported speech discrimination scores and hearing thresholds when comparing the 2007, 2008, and 2011 VA examination findings against the 2006 private examination findings. In this regard, in a VA addendum medical opinion in July 2013, the May 2013 VA examiner reviewed the August 2006 evaluation and November 2007 letter by Dr. A.M. The VA examiner found that Dr. A.M. used the Maryland CNC word list to obtain the speech recognition scores. The examiner reasoned that the private report reported that proper Compensation and Pension (C&P) protocol was used. However, the examiner pointed out that the Veteran's performance intensity scores were 76 percent at "90dB HL" in the right ear and 60 percent at "90dB HL" in the left ear in the private report. The examiner indicated that C&P protocol states that, "Maximum speech discrimination will be reported with the 50 word VA approved recording of the Maryland CNC test. The starting presentation level will be 40 dB re SRT. If necessary, the starting level will be adjusted upward to obtain a level at least 5 dB above the threshold at 2000 Hz, if not above the patient's tolerance level. The examination will be conducted without the use of hearing aids. Both ears must be examined for hearing impairment even if hearing loss in only one ear is at issue. When speech discrimination is 92% or less, a performance intensity function must be obtained." Thus, the VA examiner determined that performance intensity was not reached on the 2006 private evaluation because Dr. A.M. did not increase "HL past 90 dB HL." The examiner stated that it is also C&P protocol to pause between presentations of the Maryland CNC test if the Veteran is not responding in a timely manner. In this regard, the examiner indicated that it is possible that Dr. A.M. in his 2006 evaluation did not pause between stimuli. The examiner stated that this could also explain variances in the examinations. In contrast, the May 2013 VA examiner found that the examinations performed by VA in 2008, 2011, and recently in 2013 using C&P protocol all revealed similar results, even though each examination was done by a different examiner. There were also two other audiograms (non-C&P VA examinations) performed by VA physicians in 2010 and 2012 that used "W-22 word lists." The examiner found that these results were consistent with the VA examination findings from 2008, 2011, and 2013. Finally, the examiner noted that the 2007 VA examination showed non-organic responses. The examiner stated that it is possible that the 2006 private results could also have been non-organic. The examiner indicated that this could also explain variances. The Board finds that the negative medical evidence outweighs the positive medical evidence in support of granting the Veteran a higher disability rating for his service-connected bilateral hearing loss. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Based on the July 2013 VA medical opinion, based on the similarities between all of the other medical evidence obtained, and based on the stark contrast of the private results to the VA results, the Board finds that the private physician's audiological examination and opinion are not credible evidence that can be used to determine the Veteran's current disability rating for his service-connected bilateral hearing loss. In contrast, the results from the VA audiological examinations and VA treatment records were similar, and resulted in a 0 percent rating for the Veteran when the results were entered into the audiological formula under the regulations. The Board finds the VA medical treatment records and examinations to be of high probative value and to be competent and credible evidence of the Veteran's current bilateral hearing loss severity prior to May 21, 2013. Thus, based on the VA examinations and the VA treatment records, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 0 percent prior to May 21, 2013, for his service-connected bilateral hearing loss. 38 C.F.R. §§ 4.85, 4.86, DC 6100. The Board will now address the 20 percent rating, effective May 21, 2013, for the service-connected bilateral hearing loss. On May 21, 2013, the Veteran was afforded another VA audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 55 60 70 75 65 LEFT 55 60 85 100 75 Using the Maryland CNC test, the speech recognition score for the right ear was 92 percent, and the speech recognition score for the left ear was 88 percent. Applying the results of the May 2013 VA examination, the puretone threshold results for both ears represent an exceptional pattern of hearing loss, since the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Therefore, both ears must be evaluated under Table VI or VIA, whichever results in the higher auditory acuity level. 38 C.F.R. §§ 4.85, 4.86. Under Table VIA, a puretone threshold average of 65 in the right ear will result in Level V hearing in the right ear. Conversely, under Table VI, a puretone threshold average of 65 and a speech discrimination score of 92 in the right ear will result in Level II hearing. For purposes of rating the Veteran's disability, the Board will use the Level V hearing in the right ear, since this rating is more severe than the rating of Level II hearing. 38 C.F.R. §§ 4.85, 4.86. Under Table VIA, a puretone threshold average of 75 in the left ear will result in Level VI hearing in the left ear. Conversely, under Table VI, a puretone threshold average of 75 and a speech discrimination score of 88 in the left ear will result in Level III hearing. For purposes of rating the Veteran's disability, the Board will use the Level VI hearing in the left ear, since this rating is more severe than the rating of Level III hearing. 38 C.F.R. §§ 4.85, 4.86. Under Table VI (38 C.F.R. § 4.85), the designation of Level V hearing in the right ear and Level VI hearing in the left ear requires the assignment of a 20 percent evaluation under DC 6100. 38 C.F.R. § 4.85. There are no VA or private treatment records in the claims file dated since May 21, 2013. The Veteran and his representative have not contended that any pertinent treatment records are missing. Thus, based on the VA examination alone, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 20 percent since May 21, 2013, for his service-connected bilateral hearing loss. 38 C.F.R. §§ 4.85, 4.86, DC 6100. In forming this decision, the Board has considered the lay statements of record from the Veteran and his spouse. The Board notes that in adjudicating a claim, the competence and credibility of the lay statements must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his spouse are competent to give evidence about what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as difficulty hearing, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the competent and credible lay statements arguing that the Veteran's bilateral hearing loss is worse than the assigned ratings, however, are outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. Indeed as stated above, disability ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. For these reasons, greater evidentiary weight is placed on the physical examination findings. Since, as mentioned, the present appeal arises from an initial rating decision which established service connection and assigned an initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings (i.e., separate ratings for separate periods of time based on the facts found). See Fenderson, 12 Vet. App. at 125-26. The Veteran, however, has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his ratings any further. For these reasons and bases, the preponderance of the evidence is against the Veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Extraschedular and TDIU Evaluation The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). Here, at his Board hearing, the Veteran and his spouse testified that his bilateral hearing loss affects his ability to communicate with people, listen to the television, and talk on the phone. They testified that the Veteran currently uses a telephone adapted for the hearing impaired. Additionally, in response to the May 2013 VA examiner's question of the functional impact of the Veteran's bilateral hearing loss, the Veteran responded that he does not hear well and has problems understanding. The May 2013 VA examiner, in a July 2013 addendum opinion, determined that the Veteran has worn in-the-ear hearing aids bilaterally for many years with excellent results. The examiner stated that the Veteran "should not have any adverse complications to his functional or daily activities as a result of his current hearing thresholds, especially when wearing his hearing aids. With amplication and reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss alone should not significantly affect vocational potential or limit participation in most activities." The remaining evidence of record does not provide contrary evidence in this regard. Thus, the Veteran has not described exceptional or unusual features associated with his hearing loss. There is no doubting the Veteran's symptoms cause some impairment in his functioning and capacity. However, the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disability. The Board also notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Referral for consideration of an extraschedular rating is not warranted. Finally, the Board also recognizes that the Court has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a Veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). While the Veteran reported that his bilateral hearing loss impacted his daily activities, he did not definitively contend that his bilateral hearing loss rendered him unemployable and the evidence does not otherwise suggest that this is the case. Additionally, the May 2013 VA examiner, in a July 2013 addendum opinion, determined that the Veteran has worn in-the-ear hearing aids bilaterally for many years with excellent results. The examiner stated that the Veteran "should not have any adverse complications to his functional or daily activities as a result of his current hearing thresholds, especially when wearing his hearing aids. With amplication and reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss alone should not significantly affect vocational potential or limit participation in most activities." Thus, for these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issue before the Board. ORDER Prior to May 21, 2013, an initial compensable disability rating for the Veteran's service-connected bilateral hearing loss is denied. Since May 21, 2013, an initial disability rating in excess of 20 percent for the Veteran's service-connected bilateral hearing loss is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs