Citation Nr: 1745566 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 09-20 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss on an extraschedular basis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1967 to June 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. This case was remanded in April 2012 to afford the Veteran a VA audiological examination and to readjudicate the claim for a compensable rating for bilateral hearing loss on a schedular as well as extraschedular basis. In November 2012 the Board denied entitlement to a schedular compensable rating for bilateral hearing loss. However, the Board remanded the case for consideration of an extraschedular rating for the service-connected bilateral hearing loss and entitlement to a TDIU rating on an extraschedular basis. Thereafter, a February 2014 rating decision granted service connection for a peripheral vestibular disorder which was assigned an initial 30 percent disability rating, all effective December 14, 2012; and a 10 percent rating for tinnitus was confirmed and continued. In May 2014 the Veteran filed a notice of disagreement (NOD) to the assignment of an initial 30 percent rating for a peripheral vestibular disorder. An April 17, 2017 statement of the case (SOC) was issued as to the claim for an initial rating in excess of 30 percent for the service-connected peripheral vestibular disorder. As yet the appeal for an initial rating greater than 30 percent for service-connected peripheral vestibular disorder has not been perfected by the filing of a substantive appeal, VA Form 9 or equivalent. Accordingly, that matter is not now before the Board. An April 2017 rating decision denied a TDIU rating because the Veteran's service-connected disabilities consisted of peripheral vestibular disorder, rated 30 percent disabling; tinnitus, rated 10 percent disabling; and noncompensable ratings were assigned for bilateral hearing loss and status post (SP) laceration of the left fingers. There was a combined disability rating of 10 percent from January 9, 2001, and 40 percent from December 14, 2012. Accordingly, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for a TDIU rating. That decision noted that the claim for a TDIU rating on an extraschedular basis, under 38 C.F.R. § 4.16(b) was being referred to the Director of Compensation Service for extraschedular consideration. On May 10, 2017 the Veteran filed a notice of disagreement (NOD), VA Form 21-0958, to the denial of a TDIU rating. He elected a Decision Review Officer (DRO) review process. A July 21, 2017 supplemental SOC was issued addressing entitlement to an increased rating for bilateral hearing loss and a TDIU rating, both on an extraschedular basis. Of record is a Statement of Accredited Representative, in Lieu of VA Form 646, dated July 26, 2017 addressing entitlement to an increased rating for bilateral hearing loss and a TDIU rating, both on an extraschedular basis. This is deemed to be a substantive appeal which perfects that appeal as to the claim for a TDIU rating on an extraschedular basis. On August 331, 2017 the Veteran filed VA Form 21-0966, Intent to File a Claim for Compensation. Of record is VA Form 21-529EZ, dated August 2, 2017, and entered into VBMS on September 8, 2017, in which the Veteran formally claimed service connection for residuals of a "left ankle fracture injury." This claim remains pending at this time. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. There is no exceptional or unusual feature associated with the Veteran's hearing loss disability. 2. The Veteran's service-connected disabilities are: a peripheral vestibular disorder, rated 30 percent disabling; tinnitus, rated 10 percent disabling; and noncompensable ratings are assigned for bilateral hearing loss and for status post (SP) laceration of the fingers of the left hand. There has been a combined disability rating of 10 percent in effect from January 9, 2001, and a combined 40 percent rating in effect from December 14, 2012. 3. The Veteran has 2 years of college education and many years of work experience as a computer operator; and he testified that he took an early retirement due to his hearing loss. 4. The service-connected disabilities do not preclude obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss on an extraschedular basis are not met. 38 C.F.R. §§ 3.102, 3.321(b)(1). 2. The criteria for a TDIU rating on an extraschedular basis are not met. 38 C.F.R. §§ 3.102, 4.16(b) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. Pursuant to the Board's November2012 remand, VA's duty to notify was satisfied by a December 2012 RO letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to the duty to assist, the Veteran's service treatment records (STRs) and private as well as VA treatment records are on file. As noted in a recent referral of the case to the VA Director of Compensation Service, the Veteran is not in receipt of Social Security Administration (SSA) disability benefits. The Veteran testified in support of his claim for a compensable rating for his hearing loss before the undersigned sitting at the RO. Neither the Veteran nor his representative has raised any issue with respect to the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In light of the foregoing, the Board concludes that there has been full VCAA compliance. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007); see also Stegall v. West, 11 Vet. App. 268 (1998). A compensable rating for bilateral hearing loss on an extraschedular basis The November 2012 Board decision determined that under applicable schedular rating criteria a compensable evaluation was not warranted for the Veteran's service-connected bilateral hearing loss. See generally 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, §§ 4.1, 4.7, 4.85 and 4.86. The Board notes that at least some of the reports of VA audiological examinations described the effects of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under 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 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 Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1). With regard to the Veteran's service-connected bilateral hearing loss, the evidence of record does not reflect that the disability picture is so exceptional as to not be contemplated by the rating schedule. The rating criteria are definitive and provide a precise result based on audiometric test results. The "[a]ssignment of disability ratings for hearing impairment [is] derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It has not been alleged that there was any irregularity in VA's mechanical application of the rating schedule in this case and the Board finds that there was no such irregularity. VA outpatient treatment (VAOPT) records show that in 2008 the Veteran was given a hearing aid for his left ear. In April 2010 and in subsequent statements and testimony of the Veteran, and statement of his wife, it was reported that he had to retire early because he had difficulty hearing when he answered phones. The Veteran's subjective statements regarding hearing difficulty, when contrasted with the statements of the VA examiner as to the impact of the hearing loss and the repeated results of VA audiometric testing, are not sufficient to render his hearing disability as one not contemplated by the rating schedule. The examiner that conducted the VA audiological examination in August 2008 addressed the functional effects of the Veteran's hearing loss. Specifically, it was reported that the functional impairment resulting from the hearing loss caused difficulty hearing normal conversational speech. The May 2012 VA examiner opined that the Veteran's hearing loss did not impact ordinary conditions of daily life, including the ability to work. The examiner explained that the Veteran's hearing loss and tinnitus typically interfered with understanding words in any type of competing noise. She noted that he might have difficult hearing instructions or comments from coworkers or difficulty understanding telephone communication in a noisy environment. However she concluded that once the Veteran understood the topic at hand the hearing loss and tinnitus should not interfere with completion of physical or sedentary work. The examiner noted that the Veteran had excellent speech recognition in the right ear and should use the right ear for telephone communication. A more recent VA audiology evaluation in December 2013 with respect to tinnitus confirmed, after testing and a review of the records, that the Veteran had a sensorineural hearing loss in each ear from 500 to 6,000 Hertz, with speech discrimination of 94 % in the right ear and 50 % in the left ear. It also confirmed that he had tinnitus and that with respect to overall functional impairment from tinnitus he reported having difficulty understanding words. This is essentially the same functional impact which is cause by his sensorineural hearing loss. The evidence of record simply does not demonstrated that the Veteran has a hearing loss which is in any manner exceptional or unusual. Moreover, the Schedule for Rating Disabilities provides for multiple levels of compensable ratings should the Veteran's hearing loss increase in severity. Significantly, the Schedule for Rating Disabilities provides for compensation for exceptional hearing loss situations under 38 C.F.R. § 4.86(a) and (b)but, as explained by the Board in the November 2012 decision, the Veteran does not meet the criteria for an increased rating under these criteria. The availability of a potentially higher schedular rating might not seem relevant. However, the Court held in Thun v. Peake, 22 Vet. App. 111,115 (2008) that "[t]he threshold factor for extraschedular consideration is a finding that the evidence [] presents such an exceptional disability picture that the available [italics added] schedular evaluations [] are inadequate..." In other words, it is not solely the adequacy of the current schedular rating(s) assigned which must be considered but the Rating Schedule as a whole as a vehicle for assigning the proper disability ratings. Implicitly, the holding in Thun, Id., was that to limit consideration only to the criteria provided for a currently assigned rating would preclude consideration of all criteria used in even higher levels of disability ratings in determining whether the schedular criteria in the Rating Schedule are adequate. Stated even more simply, the Court's case law has established that whether higher schedular ratings are "available" is a factor, albeit not the only factor, for consideration of whether the Rating Schedule is adequate for rating purposes (the first analytic step set forth in Thun v. Peake, 22 Vet. App. 111 (2008)). Moreover, under 38 C.F.R. § 4.85(g) service-connected hearing loss may, in combination with other service-connected disabilities, warrant entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350. As to the contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is inadequate in any way. See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014)(nonprecedential memorandum decision). While it is true that the scheduler rating criteria do not always address the symptoms specifically described by the Veteran, this alone does not mean that the rating criteria are inadequate. 38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule. The Board notes that the Veteran has described the functional impairment he experiences as a result of his hearing loss. However, 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 noise is a disability picture that is considered in the current schedular rating criteria. To the extent that it is argued that the schedular rating criteria in general and regulations do not contemplate the functional effects of hearing impairment, including using testing conditions conducted without background noise, the Court recently rejected such an argument in Doucette v. Shulkin, 28 Vet. App. 366 (2017). In Doucette, Id., the Court found that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding" and that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Id. These are the precise symptoms that the appellant in this case refers to, i.e., difficulty understanding speech and hearing various sounds in his personal life. As found by the Court in Doucette, these symptoms are contemplated by the schedular rating criteria and do not require extraschedular evaluation. Id. See Anderson v. Shulkin, No. 16-0991, slip op. at 6 (U.S. Vet. App. March 31, 2017) (nonprecedential memorandum decision). Because the Veteran's disability picture with respect to the service-connected hearing loss is contemplated by the rating schedule, the threshold issue under Thun is not met. Consequently, the Board finds that the Veteran's hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated. The Board finds that the rating criteria reasonably describe and compensate the Veteran's disability level and symptomatology for his service-connected hearing loss. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. In April 2017 the RO referred the case to the VA Director of Compensation Service for extraschedular consideration. The VA Director of Compensation Service responded by noting the results of past VA examinations and opinions of VA examiners on those occasions. The VA Director concluded that there was no evidence to support an increased evaluation because his situation did not support the criteria in the Thun decision. No unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, the Board finds that even with consideration being given to the doctrine of the favorable resolution of doubt in favor of the Veteran, the criteria for referral for extraschedular rating consideration pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 and Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Extraschedular TDIU Rating Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies), provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and it is determined that the service- connected disabilities preclude substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's service-connected disabilities are: a peripheral vestibular disorder, rated 30 percent disabling (the maximum rating under 38 C.F.R. § 4.87, Diagnostic Code 6204 encompassing dizziness and occasional staggering); tinnitus, rated 10 percent disabling (the maximum rating under 38 C.F.R. § 4.87, Diagnostic Code 6260); and noncompensable ratings are assigned for bilateral hearing loss and for status post (SP) laceration of the fingers of the left hand. There has been a combined disability rating of 10 percent in effect from January 9, 2001, and a combined 40 percent rating in effect from December 14, 2012. Accordingly, the Veteran does not meet the schedular requirements to a TDIU rating and a TDIU rating may not be assigned under 38 C.F.R. § 4.16(a). However, in exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a TDIU rating may be assigned if the claim is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. The three-step analysis set forth in Thun v. Peake, 22 Vet. App. 111, 117 (2008) pertains to the extraschedular provisions of 38 C.F.R. § 3.321(b)(1) for increased rating claims, and is not relevant to a TDIU claim. See Thun, 22 Vet. App. at 117 (explaining the distinction between extraschedular ratings under 38 C.F.R. § 3.321(b)(1) and TDIU under 38 C.F.R. § 4.16). "[R]equiring that there be evidence of interference with 'obtaining or retaining' employment exacts a higher standard than is required for a finding of 'marked interference with employment' under [38 C.F.R.] § 3.321(b)(1)." Thun, 22 Vet. App. at 117 (2008). The functional impact of the Veteran's sensorineural hearing loss has been discussed above. Also, as noted, on the recent 2013 VA examination for tinnitus the Veteran's complaint as to the functional impairment caused by tinnitus was essentially the same as the functional impairment caused by his service-connected bilateral hearing loss, i.e., difficulty in communication with others. Another VA examination in 2013 with respect to the Veteran's peripheral vestibular disorder noted that he reported having hearing impairment with vertigo 1 to 4 times monthly lasting less than 1 hour. He had attacks of vertigo with cerebellar gait less than once per month lasting less than 1 hour. He had tinnitus more than once weekly lasting more than 24 hours. He had vertigo 1 to 4 times monthly lasting less than 1 hour. He had staggering 1 to 4 times monthly lasting less than 1 hour. However, he had no signs or symptoms attributable to chronic ear infections, inflammation or cholesteatoma. However, at the time of the examination his gait was normal and Romberg testing was normal or negative. Romberg's test is a test for differentiating between peripheral and cerebellar ataxia. An increase in clumsiness in all movements and in the width and uncertainty of the gait when the patient's eyes are closed indicates peripheral ataxia and no change indicates the cerebellar type. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1691 (27th ed. 1988). Also at that examination the "Dix Hallpike test (Nylen-Barany test)" for vertigo was normal and, so, not indicative of vertigo or nystagmus during the testing. Moreover, his limb coordination testing, i.e., finger-nose-finger, was also normal. The examiner stated that the functional impact of the Veteran's ear and peripheral vestibular conditions was that they affected his capacity for understanding instructions and communication, and his peripheral vestibular disorder caused recurrent unbalance/vertigo and prevented him from working in heights and climbing ladders. In fact, the examiner reported that both the hearing loss and tinnitus reflected a dysfunction of the Veteran's vestibular system which could influence his balance perception and induce vertigo. Yet another VA audiology examination in December 2015 found that the Veteran had speech discrimination ability of 90% in the left ear and 94% in the right ear. However, that examination opined that the Veteran's bilateral sensorineural hearing loss, alone, did not impact the Veteran's ordinary conditions of daily life, including his ability to work. Likewise, his tinnitus, alone, did not impact the Veteran's ordinary conditions of daily life, including his ability to work. A review of VA outpatient treatment (VAOPT) records shows that X-rays in 2013 confirmed tricompartmental degenerative changes with predominant narrowing medial compartment of the left knee. X-rays in 2016 confirmed the presence of an intra-articular loose body within tibiotalar joint of the left ankle, as well as moderately prominent degenerative arthritic changes at the distal interphalangeal joints of the 2nd through 5th fingers of the left hand. However, the evidence does not establish that the arthritis of these fingers is related to, a manifestation of, or part and parcel of the service-connected lacerations of the fingers of the left hand. In the Veteran's March 2016 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, he reported having last worked and became too disabled to work on March 1, 2010. He had two years of college education and work experience from April 1998 until March 1, 2010 as a computer operator and that he had left that employment because of his disability. In a May 2016 VA Form 21-4192, Request for Employment Information, the Veteran's former employer, Cameron International, reported that the Veteran had worked full time in computer operations from April 2005 to March 2009 and that no concessions had been made to him for disability and had had not lost any time from work in the preceding 12 months due to disability. However, company policy precluded disclosing the reason any person left the company's employment. While the employer did not confirm the Veteran's report that he left his employment because of his hearing loss and tinnitus, it must also be noted that not only are these not shown to preclude employment such as the Veteran had in the past, but also his peripheral vestibular disorder would not preclude such past employment of a sedentary nature which would not require a significant amount of physical movement in an office setting. In April 2017 the RO referred the case to the VA Director of Compensation Service for consideration of extraschedular entitlement to a TDIU rating. The VA Director of Compensation Service responded stating that the record showed a past medical history for but not limited to; ankle pain, hand pain, bilateral hearing loss, tinnitus, knee osteoarthritis, dyslipidemia, and prostate cancer. The results of past VA audiology evaluations were reported, although the results of audiometric testing at those times were inadvertently reported as being measured in Hertz, whereas such testing found average thresholds at specific frequencies, i.e., Hertz, as measured in decibels (dbs). Specifically, it was noted a June 2001 VA examination showed that average puretone results were 44 dbs in the left ear with speech discrimination at 98 percent and the right ear results were deemed to be within normal limits. Another VA examination at that time of the Veteran's left hand found no evidence of swelling, well-healed transverse lacerations, and full active range of motion and no diminished sensation. Audiometric testing in August 2008 showed puretone results of 28 dbs in the right ear and 55 dbs in the left ear with speech discrimination of 94% in the right ear and 60% in the left ear. An evaluation in May 2012 showed hearing acuity was 34 dbs in the right ear and 66 dbs in the left ear with speech discrimination of 100% in the right ear and 62% in the left ear. The examiner at that time opined that the Veteran's hearing loss did not impact ordinary conditions of life although there would be some difficulty hearing instructions or comments. The examiner further opined that hearing loss and tinnitus should not interfere with physical or sedentary work. Continuing, it was noted that an evaluation in December 2015 showed thresholds of 36 dbs in the right and 60 dbs in the left with speech discrimination of 94% in the right and 90% in the left ear. The examiner noted that hearing loss did not impact ordinary life. Also, private medical records showed that the Veteran hearing loss and tinnitus caused difficulty in hearing conversations. The Director concluded that based on the totality of evidence of record, extraschedular entitlement to TDIU was not shown due to hearing loss, tinnitus or hand injury, nor had the rating schedule been shown to be inadequate or that there was any collective impact. The evidence of record showed VA examiners in 2012 and 2015 opining that hearing loss and tinnitus did not impact ordinary life. Speech discrimination showed a shift from 2001 to 2015 from 98% to 90%. The private medical records showed that the Veteran had difficulty hearing with no evidence proffered to support a belief that he was unemployable or incapable of sedentary and physical activity. The Director also mistakenly assumed that service connection was in effect for a lumbar spine disability. The Director stated that any symptomatology associated with a service-connected lumbar spine disability, e.g., pain, radiculopathy, spasms, loss of motion, was clearly considered by the applicable criteria for rating hearing loss under 38 C.F.R. § 4.85, and 4.87, to include the any criteria available for analogy under 38 C.F.R. § 4.20. This statement by the Director was clearly in error inasmuch as symptoms from an orthopedic disability are not encompassed in the ratings assigned for bilateral hearing loss or tinnitus, or even for peripheral vestibular disability or the laceration of fingers of the left hand. Nevertheless, even though the Director was in error in this regard, the Director still concluded that an extraschedular TDIU rating was not warranted even when assuming that the Veteran had even further disability from such symptoms as pain, radiculopathy, spasms, and loss of spinal motion. Thus, the Veteran is not prejudiced by this error. Also, the Director observed that there were several non-service-connected disabilities, which have not been differentiated from service-connected conditions, citing to Cathell v. Brown. 8 Vet. App. 539 (1996). In simpler terms, this means that functional impairment and disability from the Veteran's nonservice-connected disorders, as stated above, may not be considered in determining whether a TIDU rating is warranted on an extraschedular basis. The Director concluded stating that because there were no service-connected disabilities identified, individually or collectively, as the sole reason for the Veteran's unemployability TDIU was not warranted on an extra-schedular basis. While there was harmless error in the Director's determination in incorrectly assuming that service connection was in effect for a lumbar spine disability, taken as a whole, the evidence shows that the Veteran retains substantial functional abilities and that despite the overall impairment due to his service-connected disorders he is capable of substantially gainful employment. Thus, it is not shown that the service-connected disabilities preclude a substantially gainfully occupation and, accordingly, the determination of the Director, Compensation Service, not to grant extraschedular consideration for a TDIU rating under 38 C.F.R. § 4.16(b) was proper. The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Here, the Board concludes that the preponderance of the evidence is against the claim for entitlement to a TDIU rating on an extraschedular basis. ORDER A compensable evaluation for bilateral hearing loss on an extraschedular basis is denied. A TDIU rating on an extraschedular basis is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs