Citation Nr: 1805398	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  12-25 355	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Huntington, West Virginia


THE ISSUE

Entitlement to a higher initial disability rating for bilateral hearing loss, in excess of 40 percent from April 21, 2014 to May 19, 2017, and in excess of 50 percent from May 19, 2017.


REPRESENTATION

Appellant represented by:	Jan D. Dils, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran (Appellant) and spouse




ATTORNEY FOR THE BOARD

E. Choi, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the RO in Huntington, West Virginia, which in pertinent part, granted service connection for bilateral hearing loss and assigned an initial noncompensable (0 percent) rating from April 1, 2010.

In a December 2014 rating decision, the RO granted a higher 10 percent initial rating for the bilateral hearing loss for the period from March 14, 2013, and a higher initial 40 percent rating for the period from April 21, 2014, creating staged ratings.

In May 2015, the Veteran testified at a Board Videoconference hearing in Huntington, West Virginia, before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C.  A transcript of the hearing has been associated with the electronic file.  

In August 2016, the Board adjudicated on the merits and denied a higher (compensable) initial disability rating for bilateral hearing loss from April 1, 2010 to March 14, 2013, and denied an initial rating in excess of 10 percent from March 14, 2013 to April 21, 2014.  The Board decision on the merits rating the bilateral hearing loss from April 1, 2010 to April 21, 2014, which was not appealed to the Court, was final when issued.  38 U.S.C.A. § 7104 (2012); 38 C.F.R. § 20.1100 (2017).  

Further, the Board's August 2016 decision remanded to the RO for further development the remaining aspect of the initial rating issue, namely, a higher initial disability rating in excess of 40 percent for the period from April 21, 2014 to May 19, 2017, and in excess of 50 percent from May 19, 2017.  As discussed below, the Board finds that the August 2016 Board remand directives were complied with, and the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). 

The Board's August 2016 decision also remanded the issues of service connection for a skin disability (claimed as rashes of the arms, legs, back, and hips), as due to exposure to herbicides including Agent Orange, and service connection for hypertension, to include as secondary to service-connected diabetes mellitus.  In an August 2017 Supplemental Statement of the Case (SSOC), the RO denied service connection for a skin disability and hypertension, and certified those issues to the Board in a September 2017 VA Form 8.  Subsequently, in a December 2017 rating decision, the RO granted service connection for a skin disability and hypertension, which constitutes a full grant of the issues on appeal; therefore, these issues were certified to the Board in error, and are not before the Board for appellate consideration.  See 38 C.F.R. § 19.5 (2017) (VA Form 8 certification of issues to the Board by the RO is an administrative act that is not binding on the Board).

The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case.


FINDINGS OF FACT

1.	For the initial rating period on appeal from April 21, 2014 to May 19, 2017, the Veteran's bilateral hearing loss has manifested no more than level VI hearing in the right ear and level VIII hearing in the left ear.

2.	For the initial rating period on appeal from May 19, 2017, the Veteran's bilateral hearing loss has manifested no more than level VIII hearing in the right ear and level IX hearing in the left ear.


CONCLUSIONS OF LAW

1.	For the initial rating period on appeal from April 21, 2014 to May 19, 2017, the criteria for a higher initial disability rating in excess of 40 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).

2.	For the initial rating period on appeal from May 19, 2017, the criteria for a higher initial disability rating in excess of 50 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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); 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 v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable 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).

The Veteran is challenging the initial disability rating assigned following the grant of service connection for bilateral hearing loss.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of a Notice of Disagreement).  With respect to the issue of a higher initial disability rating for bilateral hearing loss, no additional notice is required regarding this downstream element of the service connection claim; thus, the Board concludes that VA satisfied its duty to notify the Veteran.

VA has also satisfied its duty to assist the Veteran in the development of the claim by fulfilling 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 includes the military personnel records, service treatment records, VA treatment records, private treatment records, VA examination reports, and lay statements.

During the May 2015 Board hearing, the undersigned VLJ heard the Veteran's testimony as to the issue on appeal.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the May 2015 Board hearing, the undersigned VLJ explained the issue that is before the Board on appeal and asked questions to help direct the Veteran's testimony to assist in developing the appeal for a higher initial rating for bilateral hearing loss.  During the May 2015 Board hearing, the Veteran asserted that the service-connected bilateral hearing loss had worsened since undergoing a VA audiology examination in June 2014.

In light of the Veteran's specific assertion of worsening since the June 2014 VA examination, the Board's August 2016 decision remanded to the RO for further development the matter of rating for the relevant period from 2014.  Specifically, the Board's August 2016 remand directives instructed the RO to schedule another VA audiometric examination to assess the severity of the bilateral hearing loss.  The Veteran was provided with a new VA audiometric examination in May 2017, the report for which is associated with the record.  Accordingly, the Board finds that the August 2016 Board remand directives have been fully complied with.

As discussed above, the Veteran was afforded VA audiometric examinations in June 2014 and May 2017, the examination reports for which are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The June 2014 and May 2017 VA examination reports reflect that the VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted an in-person examination, and provided detailed findings supported by clinical testing.  

Further, under Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, in addition to providing objective test results, a VA audiometric examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted."  The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information.  Martinak, 21 Vet. App. at 455.  The June 2014 and May 2017 VA examination reports reflect that the VA examiners addressed the effect of the Veteran's hearing loss on occupational and daily activities, noting the Veteran's report of difficulty understanding conversational speech in certain environments, such as while speaking to his congregation as a pastor, while speaking to his wife in the car, and when hearing conversations in restaurants.

Based on the foregoing, the Board finds that all relevant documentation has been secured and all relevant facts have been developed.  There remains no question as to the substantial completeness of the issue on appeal.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a).

Initial Disability Rating for Bilateral Hearing Loss

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two disability 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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, 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.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 
38 C.F.R. § 4.25 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In this case, the Board will evaluate the issue for a higher initial rating following the original award.  In such cases, the severity of the disability at issue is to be considered during the entire period from the effective date of the initial assignment of the disability rating to the present time.  Id.  In this case, the RO's December 2014 and August 2017 rating decisions have already created staged ratings for the service-connected bilateral hearing loss.

Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent.  These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  In rating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

Diagnostic Code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination test and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four.  Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  See 38 C.F.R. § 4.85.  

Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral.  Each ear is to be evaluated separately.  The provisions of 38 C.F.R. 
§ 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  

In this case, the Veteran generally asserts that a higher initial disability rating is warranted for the service-connected bilateral hearing loss.  During the May 2015 Board hearing, the Veteran testified to having difficulty hearing even with the use of hearing aids.

Rating from April 21, 2014 to May 19, 2017

After a review of all the evidence, lay and medical, the Board finds that, for the period from April 21, 2014 to May 19, 2017, the weight of the competent and probative lay and medical evidence demonstrates that a higher initial disability rating in excess of 40 percent for the service-connected bilateral hearing loss is not warranted.  The most probative evidence for this claim includes the Veteran and spouse's lay statements, the Veteran's testimony during the May 2015 Board hearing, and the VA audiometric examination reports.

The June 2014 VA audiometric examination report reflects the Veteran reported symptoms of difficulty hearing his wife when in a vehicle, difficulty hearing his congregation at church, and difficulty hearing conversations in restaurants.  At the June 2014 VA audiometric examination, relevant pure tone thresholds, in decibels, were recorded as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
70
80
95
LEFT
60
80
90
100

Speech recognition scores conveyed speech discrimination of 74 percent in the right ear and 64 percent in the left ear.  

Based upon the results of the June 2014 examination, a Roman numeral VI is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral VIII is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a 40 percent rating is derived from Table VII of 38 C.F.R. § 4.85.  

Under 38 C.F.R. § 4.86(a), applying the exceptional hearing pattern rating criteria, a Roman numeral VI is designated for the right ear from Table VIa and a Roman numeral VII is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the hearing loss does not exceed the levels contemplated for a 40 percent schedular rating; thus, the exceptional hearing pattern criteria does not result in a higher rating.  For these reasons, the evidence does not support a finding of a higher initial rating in excess of 40 percent for the period from April 21, 2014 to May 19, 2017.  38 C.F.R. §§ 4.3, 4.7. 

Rating from May 19, 2017

Similarly, after a review of all the evidence, lay and medical, the Board finds that, for the period from May 19, 2017, the weight of the competent and probative lay and medical evidence demonstrates that a higher initial disability rating in excess of 50 percent for the service-connected bilateral hearing loss is not warranted for this period.  

At a VA audiometric examination in May 2017, the Veteran reported symptoms of difficulty hearing his congregation at church and difficulty hearing his wife in the car.  At the examination in May 2017, relevant pure tone thresholds, in decibels, were recorded as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
75
80
95
LEFT
55
75
85
100

Speech recognition scores conveyed speech discrimination of 55 percent in the right ear and 50 percent in the left ear.  

Based upon the results of the May 2017 examination, a Roman numeral VIII is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IX is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a 50 percent rating is derived from Table VII of 38 C.F.R. § 4.85.  

Applying the exceptional hearing pattern criteria at 38 C.F.R. § 4.86(a), a Roman numeral VI is designated for the right ear from Table VIa and a Roman numeral VII is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the exceptional hearing pattern criteria does not result in findings that exceed the levels contemplated for a 50 percent schedular rating.  For these reasons, the evidence does not support a finding of a higher initial rating in excess of 50 percent for the period from May 19, 2017.  38 C.F.R. §§ 4.3, 4.7.

Based on the foregoing, the application of the rating schedule to the audiometric findings does not establish entitlement to a higher initial disability rating for the bilateral hearing loss in excess of 40 percent from April 14, 2014 to May 19, 2017, and in excess of 50 percent from May 19, 2017.  The weight of the competent and probative lay and medical evidence of record is against a higher initial disability rating for bilateral hearing loss at any point during the staged rating periods remaining on appeal.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C. 
§ 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Referral Consideration

The Board had also considered whether referral for an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017).

The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); 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); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating 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 marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, 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.  Thun at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 
27 Vet. App. at 494-95.

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate.  The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing.  In this case, the Veteran's hearing loss symptoms and described hearing impairments are fully contemplated by the schedular rating criteria.  

The Veteran's hearing loss disability has manifested in difficulty hearing his congregation at church, difficulty hearing his wife in the car, difficulty hearing conversations at restaurants, and needing to regularly ask others to repeat themselves, which causes difficulties functioning in both professional and social environments.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and 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, sirens, and certain high-pitched sounds.  The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were demonstrated and discussed above in this case, and as measured by both audiometric 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. 25,202 (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. 17,295 (Apr. 12, 1994).

The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss.  Accordingly, the Board finds that the Veteran's reported 

hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria.  See also Doucette (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"). 

Comparing the Veteran's disability level and symptomatology of the bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  As there are no additional expressly or reasonably raised issues presented on the record, and absent any exceptional factors associated with 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). 

Finally, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran is already in receipt of a TDIU starting from December 26, 2013.  See December 2017 rating decision.  In any event, the evidence of record does not indicate that the Veteran is unemployable due to the service-connected bilateral hearing loss.  Throughout the entire initial rating period on appeal, the Veteran has been employed as a minister for over 25 years.  See April 2014 Decision Review Officer Hearing Transcript; May 2015 Board hearing transcript.  In a May 2017 statement, the Veteran's spouse suggested that the Veteran was struggling to hold onto his position as a pastor due to the service-connected hearing loss.  Nonetheless, as the 

evidence demonstrates that the Veteran is currently able to maintain substantially gainful employment, the Board finds that a claim for a TDIU due to the service-connected hearing loss has not been raised by the Veteran or the evidence for any period on appeal.


ORDER

A higher initial rating for the service-connected bilateral hearing loss, in excess of 40 percent from April 21, 2014 to May 19, 2017, and in excess of 50 percent from May 19, 2017, is denied.





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



Department of Veterans Affairs