Citation Nr: 1338844	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-20 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an initial compensable rating for bilateral hearing loss, prior to January 5, 2013.

2.  Entitlement to a disability rating greater than 10 percent, from January 5, 2013, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. J. In, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to October 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified at an October 2012 hearing by the undersigned Veterans Law Judge (VLJ) held sitting at the RO.  A transcript of that hearing is associated with the claims file.

This case was previously before the Board in December 2012 and June 2013 and was remanded for additional development.  For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remands.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Prior to January 5, 2013, the Veteran's bilateral hearing loss was manifested, at worst, by Level II hearing acuity in the right ear and Level VI hearing acuity in the left ear.

2.  From January 5, 2013, the Veteran's bilateral hearing loss has been manifested by Level II hearing acuity in the right ear and Level VI hearing acuity in the left ear.
CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 10 percent, but not greater, for bilateral hearing loss, prior to January 5, 2013, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  The criteria for a disability rating greater than 10 percent for bilateral hearing loss, from January 5, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran's claim concerning the proper disability ratings to be assigned to his service-connected bilateral hearing loss arises from his disagreement with the initial disability rating assigned to this condition following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice as to these claims is needed under VCAA.

Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The duty to assist the Veteran has also been satisfied.  The RO has obtained the Veteran's service treatment records, as well as his post service VA and private medical records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Pursuant to the Board's December 2012 and June 2013 remands, the Veteran's VA treatment records, dated from August 2011 to March 2013, as well as the audiological evaluation results referenced in an August 2011 VA audiology consultation report, were obtained from the Ann Arbor VAMC and associated with the claims file.

Additionally, multiple VA examinations were conducted to ascertain the current severity of the Veteran's bilateral hearing loss.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4).  Initially, the Veteran underwent VA audiological examinations in August 2009 and March 2011.  Subsequently, the Veteran testified at his October 2012 Board hearing that his hearing has worsened since his last VA audiology examination, and the Board, in its December 2012 remand, ordered an updated VA examination, which was obtained in January 2013.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination).  

The Board finds that the VA audiology examinations were adequate to decide the claim on appeal because the reports provided sufficient detail as to the current severity of his service-connected hearing loss, as well as description of the functional impact of his service-connected hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Although the March 2011 VA examiner stated that the Veteran's claims file was not available for review, the Board finds that this does not constitute a prejudicial error.  Here, an increase in the disability rating is at issue, and while the history of the disability is for consideration in rating the disability, the present level of the Veteran's service-connected disability is of primary concern.  38 C.F.R. § 4.1 (2013); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  As a disability rating for hearing loss is assigned based on a mechanical application of audiometric test findings, and speech discrimination ability, to the criteria set forth in 38 C.F.R. § 4.85, review of the claims file would not have changed the objective and dispositive findings made during the VA examination.  See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997).  Thus, further examination is not necessary regarding the issues on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Based on the foregoing, the Board finds the RO substantially complied with the Board's December 2012 and June 2013 remand directives.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the VLJ explained the issue on appeal and the evidence necessary to substantiate the Veteran's claim for an increased rating.  The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans.  The representative and the VLJ asked questions to ascertain the current state of the Veteran's service-connected hearing loss, and the hearing focused on the elements necessary to substantiate the claim for an increased rating.  On remand, outstanding VA treatment records were obtained and a VA examination was conducted to ascertain the current severity of the Veteran's bilateral hearing loss; otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that has yet to be obtained.  Thus, the submission of overlooked evidence was not only suggested, but obtained.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013).

Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time.  Id.

Service connection for bilateral hearing loss was granted in an August 2009 rating decision and a noncompensable disability rating was assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective from July 1, 2009.  The Veteran filed a notice of disagreement in September 2009, as to the initial noncompensable disability rating assigned for bilateral hearing loss, and perfected an appeal in May 2010.  Subsequently, by an April 2013 rating decision, the RO assigned a 10 percent rating for bilateral hearing loss, effective January 5, 2013.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second).  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing.  An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations must be conducted without the use of hearing aids.  38 C.F.R. § 4.85.

In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  If the pure tone threshold is greater than 55 decibels at each of four specified frequencies (1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz), or if the pure tone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86.

Prior to January 5, 2013

The Veteran submitted a private audiological evaluation from Dr. Norman Weir, conducted in September 2008, which found that the pure tone thresholds, in decibels, were as follows: 




HERTZ



1000
2000
3000
4000
RIGHT
10
25
65
60
LEFT
10
45
65
65

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 40 decibels in the right ear, and 46.25 decibels in the left ear.  Word recognition scores were 88 percent in the right ear and 84 percent in the left ear. 

The Veteran submitted another private audiological evaluation from Dr. Weir, conducted in June 2009.  It was noted that the Veteran's pure tone audiometric test showed that his hearing had deteriorated a little on the left side.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
15
30
65
65
LEFT
20
70
75
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 43.75 decibels in the right ear, and 60 decibels in the left ear.  Word recognition scores were 80 percent, bilaterally.

The Veteran was provided a VA audiological examination in August 2009.  The VA examiner indicated that the claims file was reviewed.  The Veteran complained that he could not hear well one-on-one when speaking with a soft-spoken person and that everything had to be repeated whether he was at home or at work.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
10
15
50
55
LEFT
25
65
65
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 32.5 decibels in the right ear, and 58 decibels in the left ear.  Speech recognition ability was 96 percent in the right ear and 88 percent in the left ear, using the Maryland CNC word lists.  The diagnosis was normal hearing from 500 to 2000 Hertz sloping to a moderate sensorineural hearing loss from 3000 to 4000 Hertz in the right ear; and normal hearing at 500 and 1000 Hertz sloping to a moderately severe hearing loss from 2000 to 4000 Hertz in the left ear (at 2000 and 3000 Hertz, the hearing loss was sensorineural and at 4000 Hertz the hearing loss was mixed).

Report of a private audiological evaluation from HTI, Inc., conducted in September 2009, revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
RIGHT
20
25
60
70
LEFT
30
55
70
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 43.75 decibels in the right ear, and 57.5 decibels in the left ear.  No speech discrimination scores were noted.

In a May 2010 VA audiology consultation report, the Veteran was seen for audiological assessment due to hearing loss, bilaterally, that reportedly occurred following chemotherapy treatments in June 2008.  He stated that he initially was "deaf" for four weeks but hearing returned later, but only partially.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
20
25
60
65
LEFT
25
70
80
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 42.5 decibels in the right ear, and 62.5 decibels in the left ear.  Speech recognition ability was 88 percent in the right ear and 76 percent in the left ear, using CID W-22 test. 

A June 2010 private treatment report from Dr. Weir indicated that pure tone audiometry showed that the Veteran had bilateral hearing loss which was mild to severe on the right side and moderate to severe in the high frequencies on the left side.  Dr. W. stated that the Veteran's hearing had not changed in 18 months.

An August 2010 private treatment report stated that pure tone audiometry showed that the Veteran's hearing had deteriorated on the left side.  He had bilateral hearing loss which was mild to severe on the right side and moderate to severe in the high frequencies on the left side.

Report of a private audiological evaluation from HTI, Inc., conducted in August 2010, revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
RIGHT
10
25
40
45
LEFT
15
50
45
60

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 30 decibels in the right ear, and 42.5 decibels in the left ear.  No speech discrimination scores were noted.
The Veteran underwent another VA audiological examination in March 2011.  The VA examiner stated that the claims file was not available for review and only the Veteran's VA treatment records were reviewed.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
10
20
55
65
LEFT
35
80
70
80

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 38 decibels in the right ear, and 67 decibels in the left ear.  Speech recognition ability, using Maryland CNC word list, was 90 percent in the right ear and 88 percent in the left ear.  The diagnosis was mild sensorineural hearing loss in the right ear and a moderately-severe sensorineural hearing loss in the left ear.

In an August 2011 VA audiology consultation report, the Veteran was seen for audiological assessment due to hearing loss, bilaterally, that reportedly occurred following chemotherapy treatments in June 2008.  He stated that he initially were "deaf" for four weeks but hearing returned later, but only partially.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
10
15
60
60
LEFT
25
70
75
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 36.25 decibels in the right ear, and 61.5 decibels in the left ear.  Speech recognition ability, using CID W-22 test, was 96 percent in the right ear and 100 percent in the left ear.

Report of a private audiological evaluation from HTI, Inc., conducted in October 2011, revealed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
25
65
60
LEFT
35
70
80
75

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 40 decibels in the right ear, and 65 decibels in the left ear.  No speech discrimination scores were noted.

At the October 2012 hearing before the Board, the Veteran testified that he could not hear on a regular phone but he could communicate with his cell phone through a Bluetooth application.  He also stated that it was harder to hear with background noise or a high-pitched voice.  

Applying the rating criteria to the clinical findings from the August 2009 evaluation results in Level I hearing acuity for the right ear and Level III hearing acuity for the left ear.  See 38 C.F.R. § 4.85, Table VI.  Applying the rating criteria to the clinical findings from the March 2011 evaluation results in Level II hearing acuity for the right ear and Level III hearing acuity for the left ear.  See 38 C.F.R. § 4.85, Table VI.  Applying either of these numeral designations to Table VII, results in a noncompensable rating for bilateral hearing impairment.  38 C.F.R. §§ 3.383, 4.85(f), (h) (2013).

The record, however, includes multiple other reports of audiological evaluations, where the speech discrimination scores provided were not appropriate for rating purposes.  Specifically, the reports of private audiometric findings in September 2008 and June 2009 reflect a right ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 40 and 43.75 decibels, and a left ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 46.25 and 60 decibels, respectively.  However, there was no indication that the speech discrimination percentage for both ears was obtained by utilizing the Maryland CNC word list.  Further, the reports of audiometric findings from the May 2010 and August 2011 VA audiology consultation reflect a right ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 42.5 and 36.25 decibels, and a left ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 62.5 and 61.5 decibels, respectively; but it was noted that the speech discrimination percentage for both ears was obtained by utilizing CID W-2 test.  Speech recognition scores using test other than Maryland CNC word list cannot be used, therefore, those findings are not useful for rating purposes.  See 38 C.F.R. § 4.85(a).  

Likewise, the reports of private audiology evaluations from HTI, dated in September 2009, August 2010, and October 2011, did not provide any speech discrimination scores and therefore cannot be used for rating purposes.

However, 38 C.F.R. § 4.85 provides that Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation for hearing impairment based only on the puretone threshold average, when the examiner certifies that use of the speech discrimination test is not appropriate or when indicated under the provision of § 4.86.

In this case, although the examiners did not specifically certified that use of the speech discrimination test is not appropriate, the speech discrimination scores were either unavailable, or were obtained using test other than Maryland CNC word list.  Furthermore, the Board observes that the audiometric results for the left ear from the June 2009 private evaluation, as well as those from the May 2010 and August 2011 VA audiology evaluations, in particular, meet the criteria for an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b).  Therefore, giving the benefit of the doubt in favor of the Veteran, Table VIa will be used determine a Roman numeral designation for hearing impairment based only on the puretone threshold average, for the September 2008, June 2009, September 2009, August 2010, and October 2011 private audiology evaluations, and the May 2010 and August 2011 VA audiology evaluations.  

Applying Table VIa to the May 2010 audiological findings results in results in Level II hearing acuity for the right ear and Level V hearing acuity for the left ear.  See 38 C.F.R. § 4.85, Table VIa, Diagnostic Code 6100.  Under the provisions of 38 C.F.R. § 4.86(b), the numeral for the left ear is then elevated to the next higher Roman numeral, Level VI.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 10 percent evaluation for bilateral hearing loss under Diagnostic Code 6100.  As such, an initial disability rating of 10 percent is warranted, prior to January 5, 2013.

From January 5, 2013

The Veteran underwent a VA audiological examination on January 5, 2013.  The VA examiner indicated that the claims file was reviewed.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
15
25
65
65
LEFT
30
75
75
80

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was reported as 42 decibels in the right ear, and 65 decibels in the left ear.  Speech recognition ability, using Maryland CNC list, was 84 percent, bilaterally.  The diagnosis was sensorineural hearing loss in the right ear and mixed hearing loss in the left ear.  As to functional impact of the hearing loss, the examiner found that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work.  In this regard, the Veteran reported that he had difficulty hearing people and difficulty hearing on the phone.  See Martinak, 21 Vet. App. at 455.

Applying the rating criteria to the clinical findings from the January 2013 evaluation results in Level II hearing acuity for the right ear and Level III hearing acuity for the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  However, the January 2013 results for the left ear meet the criteria for an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.86(b).  Applying Table VIa to the January 2013 audiological findings for the left ear results in a numeric designation of Level V in the left ear.  Id.  Under the provisions of 38 C.F.R. § 4.86(b), this numeral is then elevated to the next higher Roman numeral, Level VI.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 10 percent evaluation for bilateral hearing loss under Diagnostic Code 6100.  Thus, based on the audiometric findings of record, a disability rating greater than 10 percent, from January 5, 2013, is not supported by the evidence of record.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (holding that disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  ); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding that the Board may only consider the specific factors as are enumerated in the applicable rating criteria).

Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2013).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between 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.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the veteran's disability level and symptomatology, the Rating Schedule contemplates then the veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the current rating inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated as an impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability.  Id.  When applying the results of the relevant audiological examinations to the tables set forth in the regulations, the Veteran's service-connected hearing loss was assigned numeric designations of Level II for his right ear and Level VI for his left ear on the May 2010 and January 2013 VA audiology examinations.  The Veteran reported difficulty hearing people, especially, over the phone.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented the current rating assigned.  Ratings in excess of 10 percent are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present for any distinct period on appeal.  The criteria for a 10 percent rating reasonably describe the Veteran's hearing loss disability level and symptomatology.

Consequently, the Board finds that the available schedular ratings are adequate to rate the Veteran's bilateral hearing loss.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

The Board finds that the evidence is against the assignment of a rating greater than 10 percent for bilateral hearing loss, at any time during the period on appeal.  As such, staged ratings are not for application.  See Fenderson, 12 Vet. App. at 126.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Although the January 2013 VA examiner stated that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work, on an October 2013 VA mental health examination report, the Veteran reported that he is currently working as the print manager for a company where he worked for 46 years and that thing have been going well.  As such, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unable to obtain and maintain substantially gainful employment.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a disability rating greater than currently assigned for the Veteran's service-connected bilateral hearing loss, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial rating of 10 percent, but not greater, for bilateral hearing loss prior to January 5, 2013 is granted.

Entitlement to a disability rating greater than 10 percent for bilateral hearing loss from January 5, 2013 is denied.



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs