Citation Nr: 1802760	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-31 499A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a higher (compensable) initial disability rating (or evaluation) for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel 






INTRODUCTION

The Veteran, who is the appellant in this case, had active service from April 1958 to April 1962.

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for bilateral hearing loss, assigning an initial noncompensable (0 percent) disability rating effective September 30, 2011 (the day the claim was received by VA).  A claim for service connection for bilateral hearing loss was received in September 2011.  

In November 2015, the Board, in pertinent part, remanded the issue on appeal for additional development.  Pursuant to the Board remand instructions, additional VA treatment, including November 2011 and April 2012 audiological documents, were obtained and associated with the claims file.  The Veteran was afforded a VA examination in May 2016 to assist in determining the current severity of the bilateral hearing loss.  The Board finds that the May 2016 VA examination report was thorough and adequate and in compliance with the remand instructions.  As such, the Board finds there has been substantial compliance with the prior Board remand orders.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008).  

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017).  


FINDING OF FACT

For the entire rating period from September 30, 2011, audiometric testing revealed, at worst, Level II hearing acuity in the right ear and Level I hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met or more nearly approximated for any part of the initial rating period from September 30, 2011.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.          38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017).  Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In this case, notice was provided to the Veteran in January 2012, prior to adjudication of the claim in June 2013.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates.  Further, this issue comes before the Board on appeal from the decision which also granted service connection; therefore, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.	 § 5103(a) notice for the service connection claim that was granted.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R.		 § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement).  Thus, the Board concludes that VA satisfied its duties to notify the Veteran.   

VA satisfied its duty to assist the Veteran in the development of the claim.  First, VA satisfied its duty to seek, and assist in the procurement of, relevant records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA treatment records, private treatment records, VA examination reports, and lay statements.  

Second, VA satisfied its duty to obtain a medical opinion when required.  See        38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson,	 20 Vet. App. 79, 83 (2006).  The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in February 2012 and July 2016.  The Board finds that the VA examination reports, in connection with other evidence of record, are thorough and adequate and provide a sound basis upon which to base decisions with regard to the issue on appeal.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination and audiometric testing, and specifically addressed the symptoms and impairments listed in the relevant criteria in the potentially applicable diagnostic codes.    

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this case, the February 2012 VA examiner noted that the Veteran reported difficulty hearing in group situations and when there is background noise.  The May 2016 VA examiner noted that the Veteran reported difficulty understanding speech in automobile when someone talks to him that is not facing his ear as well as problems in groups.  As the VA examiners considered the functional effects of the Veteran's hearing loss ability, the Board finds that the examinations of record are adequate to adjudicate the appeal and no further examination is necessary.

The Veteran was offered the opportunity to testify at a Board hearing, but declined.  As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.	  § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Initial Rating for Bilateral Hearing Loss

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1 (2017).  

Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2017).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board has considered, and found inappropriate, the assignment of "staged" ratings for any part of the initial rating period for the bilateral hearing loss.

The Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected bilateral hearing loss, effective September 30, 2011, under 38 C.F.R. § 4.85, Diagnostic Code 6100.  Ratings for defective hearing range from noncompensable (0 percent) 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 puretone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz or Hz).  To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85.  

Pursuant to the rating schedule, the assignment of a rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In cases in which the rating of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85(b).

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described below.  38 C.F.R. § 4.85(c).  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).    

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R.	 § 4.85(d).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage rating is located at the point where the row and column intersect.  38 C.F.R. 
§ 4.85(e).  

The Veteran contends generally that the bilateral hearing loss has manifested in more severe symptoms than contemplated by the noncompensable (0 percent) disability rating assigned.  See generally September 2014 substantive appeal (on a VA Form 9), May 2016 written statement.  In an October 2016 written statement, through the then-representative, the Veteran contended that the bilateral hearing loss is severe enough to warrant a compensable rating because he has trouble understanding what is being said even when wearing hearing aids.  

In a September 2011 written statement, the Veteran reported hearing problems requiring him to ask people to repeat things and inability to hear well when spoken to by others.  In a January 2012 written statement, the Veteran contended that he was entitled to a compensable disability rating for the bilateral hearing loss.  In a September 2013 written statement, the Veteran reported that the bilateral hearing loss makes "it difficult to pick out words."    

After review of the lay and medical evidence of record, the Board finds that, for the entire initial rating period from September 30, 2011, audiometric testing revealed, at worst, Level II hearing acuity in the right ear and Level I acuity in the left ear, which is commensurate with the noncompensable (0 percent) disability rating assigned under Diagnostic Code 6100.

VA treatment records dated throughout the appeal period note that the Veteran wears hearing aids in both ears.  An October 2011 VA treatment record notes slightly progressive hearing loss.  A November 2011 VA treatment record notes normal to profound sensorineural hearing loss.  A July 2016 VA treatment record notes that the Veteran's communicative difficulties include conversation one-on-one, understanding TV, conversation in group/noise, and understanding the phone.    

The Veteran underwent private audiometric testing in April 2011.  While the report does not include the puretone thresholds in numerical format, but are reported in graphical representation, the Board in its role as a fact finder is able to interpret these graphical representations of audiometric data and convert them to numerical data.  The Board can accept and rate based on private audiometric test scores, which were provided in graph form.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).

The April 2011 private audiometric testing reflects the following auditory thresholds: 


HERTZ

1000
2000
3000
4000
RIGHT
15
15
40
55
LEFT
20
20
45
45

The average puretone threshold was 31.25 dB in the right ear and 32.5 dB in the left ear.  It is unclear whether the documented speech discrimination percentages in April 2011 were obtained using Maryland CNC testing as required by regulation.  See 38 C.F.R. § 4.85(a).  The Board will assume, arguendo, that the speech discrimination percentages were derived using Maryland CNC testing, in order to see whether the results would warrant a compensable rating and, if so, would also warrant further assistance to determine from the private audiology examiners which type of speech discrimination testing was used (see Savage at 249).  Word recognition scores were 100 percent, bilaterally.  

Applying Table VI to the hearing loss, as recorded in April 2011, results in numerical designations of Level I in the right ear and Level I in the left ear, which equates to a noncompensable disability rating.  38 C.F.R. § 4.85.  As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA is not warranted.  

At the February 2012 VA audio examination, audiometric testing reflects the following auditory thresholds:


HERTZ

1000
2000
3000
4000
RIGHT
50
55
55
70
LEFT
25
40
60
70

The average puretone threshold was 57.5 dB in the right ear and 48.75 dB in the left ear.  Word recognition scores, based on the Maryland CNC test, were 94 percent, bilaterally.  At the VA examination, the Veteran reported functional impairment from the hearing loss of difficulty hearing in group situations and when there is background noise.  

Applying Table VI to the hearing loss, as recorded in the February 2012 VA examination, results in numerical designations of Level II in the right ear and Level I in the left ear, which equates to a noncompensable disability rating.  38 C.F.R.	 § 4.85.  As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA to the audiological scores is not warranted.  

An April 2012 VA treatment record notes that audiometric testing reflected the following auditory thresholds: 


HERTZ

1000
2000
3000
4000
RIGHT
15
20
45
60
LEFT
20
35
55
55

The average puretone threshold was 35 dB in the right ear and 41.25 dB in the left ear.  It is unclear whether the documented speech discrimination percentages in April 2012 were obtained using Maryland CNC testing as required by regulation.  See 38 C.F.R. § 4.85(a).  The Board will assume, arguendo, that the speech discrimination percentages were derived using Maryland CNC testing, in order to see whether the results would warrant a compensable rating and, if so, would also warrant further assistance to determine from the VA doctors which type of speech discrimination testing was used (see Savage at 249).  Word recognition scores were 96 percent, bilaterally.  

Applying Table VI to the hearing loss, as recorded in the April 2012 VA treatment record, results in numerical designations of Level I in the right ear and Level I in the left ear, which equates to a noncompensable disability rating.  38 C.F.R. § 4.85.  As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA to the audiological scores is not warranted.  

At the May 2016 VA audio examination, audiometric testing reflects the following auditory thresholds:


HERTZ

1000
2000
3000
4000
RIGHT
20
25
55
70
LEFT
20
30
50
65

The average puretone threshold was 42.5 dB in the right ear and 41.25 dB in the left ear.  Word recognition scores, based on the Maryland CNC test, were 96 percent in the right ear and 98 percent in the left ear.  At the May 2016 VA examination, the Veteran reported functional impairment from the hearing loss of difficulty understanding speech in automobile when someone talks to him that is not facing his ear as well as problems in groups.  

Applying Table VI to the hearing loss, as recorded in the May 2016 VA examination, results in numerical designations of Level I in the right ear and Level I in the left ear, which equates to a noncompensable disability rating.  38 C.F.R.	 § 4.85.  As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA to the audiological scores is not warranted.  

The Board has reviewed the statements from the Veteran made during the course of this appeal and to health professionals and, while reflecting the difficulties the hearing impairment causes, these statements do not establish that a compensable schedular rating is warranted for any part of the appeal period.  Such a rating is primarily determined from the application of mechanical audiometric testing and speech recognition scores.  Based on the above, the Board finds that, for the entire initial rating period, the Veteran's disability picture more nearly approximates the criteria for a noncompensable (0 percent) disability rating for the bilateral hearing loss; therefore, a higher (compensable) initial rating for bilateral hearing loss must be denied for the entire initial rating period from September 30, 2011.  38 C.F.R.	 §§ 4.3, 4.7.

Extraschedular Referral Consideration

The Board has considered whether referral for an extraschedular rating is warranted for bilateral hearing loss for any part of the rating period.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2017).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular referral analysis, the Board finds that in this case all the symptomatology and functional impairment caused by the bilateral hearing loss is contemplated by the schedular rating criteria; therefore, no referral for extraschedular consideration is required.  A VA audiological examination report must fully describe the functional effects caused by a hearing disability in addition to dictating objective test results.  Martinak, 21 Vet. App. at 455.  The February 2012 and May 2016 VA examination reports addressed the functional effects caused by the bilateral hearing loss disability, noting that the Veteran reported difficulty hearing in group situations and when there is background noise, as well as understanding speech in automobile when someone talks to him that is not facing his ear.  

The schedular rating criteria are adequate to rate all the bilateral hearing loss disability.  In this case, all the hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  The Veteran's complaints concern diminished auditory acuity and speech recognition.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  In Rossy v. Shulkin, No. 16-0720, 2017 U.S. App. Vet. Claims LEXIS 1794 (Vet. App. Dec. 13, 2017), the Court, reaffirming Doucette, 28 Vet. App. 366, held that, absent other factors, difficulty understanding conversations, particularly in noisy or crowded circumstances, is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria.  The ability of the Veteran to hear voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, and certain high-pitched sounds.  The ability of the Veteran to understand people during conversation or when talking is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  

Moreover, the testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  The scores represent a rating made on the worst possible objective measure of performance.  In other words, the Veteran does not have any symptoms from the hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in both ears in this case, and as measured by both audiological testing and speech recognition testing.  See Doucette, 28 Vet. App. 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech").   

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.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, 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 the Veteran's reported difficulties are factors contemplated in the regulations and schedular rating criteria.  See also Doucette, supra (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure . . . an inability to hear or understand speech or to hear other sounds in various contexts . . . are contemplated by the schedular rating criteria").

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.               38 U.S.C. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] 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."  38 C.F.R. § 4.1.  In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on daily life.  In the absence of exceptional factors associated with the bilateral hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating 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).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record.  The Veteran has not contended that he is unemployed because of service-connected disabilities and the other evidence of record does not indicate anything contrary; thus, the Board finds that Rice is inapplicable because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities.  


ORDER

A higher (compensable) initial disability rating for bilateral hearing loss is denied.





____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs