Citation Nr: 1647400 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 11-33 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the reduction of the evaluation for bilateral hearing loss from 30 percent to 10 percent was proper, effective February 1, 2014. 2. Entitlement an initial disability rating in excess of 30 percent for Meniere's syndrome, from July 30, 2012. 3. Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss from March 9, 2010, to July 30, 2012. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from October 1976 to October 1980. This appeal comes to the Board of Veterans' Appeals (Board) from July 2010, October 2011 and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The July 2010 rating decision granted service connection for bilateral hearing loss at an initial 20 percent rating, effective March 9, 2010 and granted service connection for tinnitus at an initial 10 percent disability rating, effective March 9, 2010. In an October 2011 rating decision, the RO found that clear and unmistakable error had been committed in the evaluation of hearing loss and a retroactive evaluation of 30 percent was granted, effective March 9, 2001. The November 2013 rating decision reduced the rating of the Veteran's service-connected bilateral hearing loss from 30 percent to 10 percent effective February 1, 2014. In August 2015, the Veteran provided testimony before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing has been associated with the claims folders. In January 2016, the Board remanded the issues of whether the reduction of the evaluation for bilateral hearing loss from 30 percent to 10 percent was proper; entitlement to an initial rating in excess of 30 percent for the period prior to February 1, 2014, and an initial rating in excess of 10 percent for the period since February 1, 2014 for bilateral hearing loss; and entitlement to service connection for Meniere's disease, claimed as secondary to service-connected bilateral hearing loss, for additional development. In a May 2016 rating decision, the Appeals Management Center (AMC) granted service connection for Meniere's disease at an initial 30 percent evaluation, effective July 30, 2012. Following that decision, the Veteran understandably expressed some confusion as to his combined disability rating. The Board will attempt to explain. Meniere's disease is evaluated under Diagnostic Code 6205. See 38 C.F.R. § 4.87, Diagnostic Code 6205 (2016). Under this Diagnostic Code, a rating official is to evaluate Meniere's syndrome either under the criteria under Diagnostic Code 6205, or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, a rating official is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205. Id. at Note; see 38 C.F.R. § 4.85, Diagnostic Code 6100; see also 38 C.F.R. § 4.87, Diagnostic Codes 6204, 6260 (2016). As a result of the May 2016 grant of service connection for Meniere's disease at an initial 30 percent evaluation, effective July 30, 2012 under Diagnostic Code 6205, the AMC adjusted the Veteran's bilateral hearing loss disability to reflect a 30 percent rating from May 9, 2010 until July 30, 2012. The AMC also adjusted the Veteran's service-connected tinnitus disability to reflect a 10 percent disability rating from May 9, 2010 until July 30, 2012. The AMC discontinued the Veteran's 10 percent tinnitus rating and 30 percent bilateral hearing loss rating, effective July 30, 2012 as again, a rating official is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205. In light of the above, the Board finds that it is appropriate to take jurisdiction of the issue of entitlement to a higher evaluation for Meniere's disease, as it is part and parcel of the appealed claim of entitlement to a higher evaluation for hearing loss. To the extent that the procedural history above has resulted in some understandable confusion on the part of the Veteran, the Board finds no prejudice in proceeding as the Board is awarding a higher initial evaluation of 60 percent for Meniere's disease. The issue of entitlement to special monthly compensation (SMC) for the Veteran's spouse based on aid and attendance and housebound status has been raised by the record in a June 2016 statement. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (6). FINDINGS OF FACT 1. The May 2016 rating decision restored the Veteran to his original 30 percent disability rating for bilateral hearing loss; thus, the reduction claim was rendered moot. 2. For the entire appeal period, symptoms of the Veteran's Meniere's syndrome most closely approximate hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month. 3. The Veteran's service-connected bilateral hearing loss had been manifested by no worse than level VII hearing acuity in the right ear and level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The appeal of the reduction of the evaluation for bilateral hearing loss from 30 percent to 10 percent is dismissed. 38 U.S.C.A. § 7105 (West 2014). 2. The criteria for an initial disability rating of 60 percent for Meniere's syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Codes 6100, 6204, 6205, 6260 (2016). 3. The criteria for an initial rating in excess of 30 percent for a bilateral hearing loss disability for the period from March 9, 2010 to July 30, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO provided notice to the Veteran in a March 2010 letter. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, the Veteran was afforded VA examinations in May 2010 and March 2013. Per the January 2016 Board remand instructions, the Veteran was also provided VA examinations in February 2016. The report of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Thus, the Board finds that the May 2010, March 2013 and February 2016 VA examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has considered the argument of the Veteran's representative that the February 2016 VA examiner failed to review treatment records as instructed by the Board. However, the report of examination clearly reflects that the VA examiner had access to and reviewed the Veteran's claims file. For this reason, and because the representative has not pointed to any specific information therein that the VA examiner should have acknowledged that would have impacted the findings in the examination, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2016); Barr, 21 Vet. App. at 312. In light of the above, the Board also finds that the RO substantially complied with the January 2016 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf as well as the Veteran's hearing testimony. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Reduction The July 2010 rating decision granted service connection for bilateral hearing loss at an initial 20 percent rating, effective March 9, 2010 and granted service connection for tinnitus at an initial 10 percent disability rating, effective March 9, 2010. In an October 2011 rating decision, the RO found that clear and unmistakable error had been committed in the evaluation of hearing loss and a retroactive evaluation of 30 percent was granted, effective March 9, 2010. The November 2013 rating decision reduced the rating of the Veteran's service-connected bilateral hearing loss from 30 percent to 10 percent effective February 1, 2014. In a May 2016 rating decision, the AMC granted service connection for Meniere's disease at an initial 30 percent evaluation, effective July 30, 2012 under Diagnostic Code 6205. See 38 C.F.R. § 4.87, Diagnostic Code 6205 (2016). Under this Diagnostic Code, a rating official is to evaluate Meniere's syndrome either under the criteria under Diagnostic Code 6205, or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, a rating official is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205. Id. at Note; see 38 C.F.R. § 4.85, Diagnostic Code 6100; see also 38 C.F.R. § 4.87, Diagnostic Codes 6204, 6260 (2016). As a result of the May 2016 grant of service connection for Meniere's disease at an initial 30 percent evaluation, effective July 30, 2012 under Diagnostic Code 6205, the AMC adjusted the Veteran's bilateral hearing loss disability to reflect a 30 percent rating from May 9, 2010 until July 30, 2012. The AMC also adjusted the Veteran's service-connected tinnitus disability to reflect a 10 percent disability rating from May 9, 2010 until July 30, 2012. The AMC discontinued the Veteran's 10 percent tinnitus rating and 30 percent bilateral hearing loss rating, effective July 30, 2012 as again, a rating official is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205. Id. In this instance, as will be addressed below, the Board finds that an initial 60 percent disability rating is warranted for the Veteran's service-connected Meniere's disease. As a result, the Board also finds that this single 60 percent disability rating is more favorable to the Veteran than to rate the hearing loss, tinnitus and vertigo, which are contemplated by the Meniere's diagnosis, separately. Accordingly, the Veteran's claim for whether the reduction of the evaluation for bilateral hearing loss from 30 percent to 10 percent was proper is dismissed as moot. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Here, in essence, a "case or controversy" involving a pending adverse determination to which the appellant has taken exception no longer exists. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). As previously noted, after the Veteran appealed the November 2013 rating reduction, the AMC, in a May 2016 rating decision, adjusted the Veteran's bilateral hearing loss disability to reflect a 30 percent rating from May 9, 2010 until July 30, 2012. The Veteran's 30 percent rating for bilateral hearing loss for the period from July 30, 2012 has been subsumed by the Veteran's rating for his service-connected Meniere's disease under Diagnostic Code 6205 as a rating official is not to combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205. As such, the Veteran's claim for restoration of a 30 percent rating has effectively been granted, and a case or controversy on that issue no longer exists. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The appeal as to the reduction of the evaluation of the Veteran's bilateral hearing loss disability, from 30 percent to 10 percent disabling, has become moot by virtue of the AMC's May 2016 rating decision restoring the Veteran's bilateral hearing loss disability to reflect a 30 percent rating from May 9, 2010 until July 30, 2012, and must therefore be dismissed. See 38 U.S.C.A. §7105 (West 2014). II. Higher Initial Disability Ratings The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 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 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2016). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2016). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his Meniere's disease and hearing loss. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. A. Meniere's syndrome Laws and Regulations As noted above, in a May 2016 rating decision, the AMC granted service connection for Meniere's disease at an initial 30 percent evaluation, effective July 30, 2012 under Diagnostic Code 6205. Under Diagnostic Code 6205 contemplating Meniere's syndrome (endolymphatic hydrops), a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. Meniere's disease with hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus, is rated 100 percent disabling. Again, a Note to Diagnostic Code 6205 provides that Meniere's syndrome is to be rated either under these criteria or by separately rating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall rating. The Note also provides that a rating for hearing impairment, tinnitus, or vertigo is not to be combined with a rating under Diagnostic Code 6205. 38 C.F.R. § 4.87, Diagnostic Code 6205 (2016). Factual Background and Analysis A July 2012 VA otolaryngology report noted that the Veteran presented with complaints of dizziness for at least the last month as he had intermittent episodes of imbalance with associated blurred vision. A February 2013 VA otolaryngology report noted that the Veteran had a working diagnosis of Meniere's disease although his testing was nonconclusive. The Veteran's treatment resulted in much improvement in his symptoms of tinnitus and dizziness and his hearing was stable. The Veteran underwent a VA examination for ear conditions including vestibular and infectious conditions in March 2013. The examiner noted that the Veteran had a diagnosis of Meniere's syndrome or endolymphatic hydrops. The Veteran had hearing impairment with vertigo more than once weekly for more than 24 hours. He had hearing impairment with attacks of vertigo and cerebellar gait 1 to 4 times per month with a duration of 1 to 24 hours. He had vertigo, tinnitus and staggering more than once weekly for more than 24 hours. Per the January 2016 Board remand instructions, the Veteran underwent a VA examination for ear conditions including vestibular and infectious conditions in February 2016. The examiner noted that the Veteran had a diagnosis of Meniere's syndrome or endolymphatic hydrops. The examiner also indicated that the Veteran's Meniere's disease was currently well controlled with a low salt diet and use of a diuretic. His last severe episode with marked nausea and vertigo was about a year ago. He had episodes of right ear fullness with unsteadiness and vague nausea about once a month. The Veteran had hearing impairment with vertigo and tinnitus 1 to 4 times per month with a duration of 1 to 24 hours. He had vertigo less than once a month with a duration of 1 to 24 hours. He also had staggering 1 to 4 times per month with a duration of 1 to 24 hours. A June 2016 private audiologist noted that the Veteran's symptoms of Meniere's disease included tinnitus; vertigo varying from minutes to days, weeks or months; and fluctuating hearing loss. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that an initial 60 percent rating for Meniere's disease is warranted. The Board finds that the most probative evidence of record indicates that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month. Notably, on VA examination in March 2013, it was noted that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait 1 to 4 times per month with a duration of 1 to 24 hours. Additionally, on VA examination in February 2016, the examiner noted that the Veteran had had hearing impairment with vertigo and tinnitus 1 to 4 times per month as well as staggering 1 to 4 times per month. Therefore, the evidence of record indicates that the Veteran's Meniere's syndrome manifests as hearing impairment with attacks of vertigo and cerebellar gait that occur from one to four times a month. Accordingly, the Board concludes that the Veteran's symptomatology shows disability that more nearly approximates an initial 60 percent rating under Diagnostic Code 6205. However, a rating greater than 60 percent is not warranted under Diagnostic Code 6205. As noted above, the probative medical evidence does not show that the Veteran experiences attacks of vertigo and cerebellar gait more than once weekly. While the March 2013 VA examination noted that the Veteran had hearing impairment with vertigo more than once weekly, the same examiner specifically indicated that the Veteran had hearing impairment with attacks of vertigo and cerebellar gait only 1 to 4 times per month. As such, a higher rating than 60 percent under Diagnostic Code 6205 is not warranted. The Board notes that the combined rating of the Veteran's symptoms directly attributable to the Veteran's Meniere's syndrome rated separately would equal the 60 percent rating assigned above under Diagnostic Code 6205. The highest rating available for vertigo is a 30 percent disability rating; tinnitus allows for at the most a 10 percent disability rating; and, as addressed below, the Veteran's hearing loss warrants a 30 percent disability rating. See 38 C.F.R. §§ 4.85, 4.87a, Diagnostic Code s 6100, 6204, and 6260. These ratings combine to a 60 percent rating. Therefore, assigning a 60 percent rating under Diagnostic Code 6205 is appropriate. Based on the foregoing, the Board finds that the Veteran's Meniere's syndrome warrants an initial 60 percent disabling rating for the entire appeal period. B. Bilateral Hearing Loss As noted above, even though the AMC adjusted the Veteran's bilateral hearing loss disability to reflect a 30 percent rating from May 9, 2010 until July 30, 2012, the Board will still determine the issue of entitlement to an initial rating in excess of 30 percent for both the period prior to and after July 30, 2012 as an initial rating in excess of 30 percent for the period since July 30, 2012 could possibly result in a higher overall evaluation when separately rating his vertigo, hearing loss and tinnitus disabilities instead of his singular 60 percent rated Meniere's disease disability under Diagnostic Code 6205. Laws and Regulations A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85 (2016). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Factual Background and Analysis The Veteran underwent a VA examination in May 2010. The examiner indicated that the effects of the Veteran's hearing loss on his usual occupation was difficulty hearing customers and the effect of the condition on his daily activities was asking others to repeat themselves often. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 75 100 105 81 LEFT 30 75 85 105 74 Bone conduction testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 105 105 75 LEFT 25 55 105 105 73 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 62 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 81 decibels combined with the right ear speech discrimination of 82 percent results in a Roman numeral designation of V, while the left ear pure tone threshold average of 74 decibels when combined with the left ear speech recognition of 62 percent results in a Roman numeral designation of VII. Application of these findings to Table VII corresponds to a 30 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Applying the bone conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 75 decibels combined with the right ear speech discrimination of 82 percent results in a Roman numeral designation of III, while the left ear pure tone threshold average of 73 decibels when combined with the left ear speech recognition of 62 percent results in a Roman numeral designation of VII. Application of these findings to Table VII corresponds to a 20 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent a VA examination in March 2013. The examiner noted that the Veteran's bilateral hearing loss impacted his ordinary conditions of life and ability to work as his level of hearing loss and tinnitus made it difficult to communicate. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 75 95 105 79 LEFT 45 75 85 105 78 Bone conduction testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 65 80 80 65 LEFT 35 65 80 80 65 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 94 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 79 decibels combined with the right ear speech discrimination of 76 percent results in a Roman numeral designation of V, while the left ear pure tone threshold average of 78 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of II. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Applying the bone conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 65 decibels combined with the right ear speech discrimination of 76 percent results in a Roman numeral designation of IV, while the left ear pure tone threshold average of 65 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of II. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. On January 2014 private audiogram air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 95 105 76 LEFT 40 65 85 105 74 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 76 decibels combined with the right ear speech discrimination of 88 percent results in a Roman numeral designation of III, while the left ear pure tone threshold average of 74 decibels when combined with the left ear speech recognition of 88 percent results in a Roman numeral designation of III. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. On August 2014 private audiogram air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 90 110 110 93 LEFT 35 65 80 105 71 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 88 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 93 decibels combined with the right ear speech discrimination of 68 percent results in a Roman numeral designation of VII, while the left ear pure tone threshold average of 71 decibels when combined with the left ear speech recognition of 88 percent results in a Roman numeral designation of III. Application of these findings to Table VII corresponds to a 20 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Because the Veteran's pure tone thresholds for his right ear are 55 decibels or more at each of the four specified frequencies, the provisions of 38 C.F.R. § 4.86(b) is for application. Under Table VIa, the right ear pure tone threshold average of 93 warrants a Roman numeral designation of IX. The IX, for the right ear, when combined with the left ear designation of III, results again in a 20 percent rating. On an August 17, 2015 private audiogram air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 95 105 76 LEFT 45 60 85 110 75 Speech audiometry revealed speech recognition ability of 85 percent in the right ear and of 85 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 76 decibels combined with the right ear speech discrimination of 85 percent results in a Roman numeral designation of III, while the left ear pure tone threshold average of 75 decibels when combined with the left ear speech recognition of 85 percent results in a Roman numeral designation of III. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. On an August 19, 2015 private audiogram air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 95 105 76 LEFT 45 65 80 105 74 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 85 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 76 decibels combined with the right ear speech discrimination of 80 percent results in a Roman numeral designation of V, while the left ear pure tone threshold average of 74 decibels when combined with the left ear speech recognition of 85 percent results in a Roman numeral designation of III. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Per the January 2016 Board remand instructions, the Veteran underwent a VA examination in February 2016. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 95 105+ 76 LEFT 40 65 80 105 73 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 76 decibels combined with the right ear speech discrimination of 80 percent results in a Roman numeral designation of V, while the left ear pure tone threshold average of 73 decibels when combined with the left ear speech recognition of 84 percent results in a Roman numeral designation of III. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The examiner noted that the Veteran had difficulty hearing and understanding conversations especially in the presence of background noise. He was issued hearing aids in 2013 and wears them on a daily basis. On a June 2016 private audiogram air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 75 100 110 84 LEFT 55 75 85 105 80 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 72 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 84 decibels combined with the right ear speech discrimination of 68 percent results in a Roman numeral designation of VII, while the left ear pure tone threshold average of 80 decibels when combined with the left ear speech recognition of 72 percent results in a Roman numeral designation of VI. Application of these findings to Table VII corresponds to a 30 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Because the Veteran's pure tone thresholds for his left ear are 55 decibels or more at each of the four specified frequencies, the provisions of 38 C.F.R. § 4.86(b) are for application. Under Table VIa, the right ear pure tone threshold average of 80 warrants a Roman numeral designation of VII. The IX, for the right ear, when combined with the left ear designation of VI, results again in a 30 percent rating. As the multiple testing results noted above do not yield findings to support assignment of a rating in excess of 30 percent for bilateral hearing loss, the Veteran is not entitled to an initial evaluation in excess of 30 percent for bilateral hearing loss. 38 C.F.R. §§ 4.7, 4.21. Notably, the only testing results which would warrant a 30 percent rating for bilateral hearing loss is the most recent private audiogram in June 2016. As a result, an initial rating in excess of 30 percent is clearly not available based on these findings. The Board has carefully considered the Veteran's assertions and other lay statements of record and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher. However, as noted above, the VA examinations were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a) (2016). The lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel readings to his current acuity problems. Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As such, an initial disability rating in excess of 30 percent for a bilateral hearing loss disability is not warranted. As the Veteran is not entitled to an initial rating in excess of 30 percent, the Board notes that the Veteran will be rated for his singular 60 percent rated Meniere's disease disability under Diagnostic Code 6205 for the period from July 30, 2012 as it provides a more favorable evaluation. Accordingly, the Board finds that an initial rating in excess of 30 percent for the period from May 9, 2010 to July 30, 2012 for a bilateral hearing loss disability is not warranted. C. Extraschedular Consideration The Board has also considered the potential application of other various provisions, evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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 a 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 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected bilateral hearing loss and Meniere's syndrome disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the service-connected bilateral hearing loss and Meniere's syndrome disabilities. In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted. See Martinak, 21 Vet. App. at 455. In this case, the May 2010, March 2013 and February 2016 VA examiners specifically assessed the effects of the Veteran's hearing loss on his daily activities, noting that his bilateral hearing loss continued to impact his ordinary conditions of life and ability to work as he had difficulty hearing and understanding conversations especially in the presence of background noise. The Board finds that the VA examination reports are in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b). In short, there is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. ORDER The issue of whether the reduction of the evaluation for bilateral hearing loss from 30 percent to 10 percent was proper is dismissed as moot. Entitlement an initial disability rating of 60 percent from July 30, 2012, for Meniere's syndrome is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 30 percent from March 9, 2010, to July 30, 2012, for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs