Citation Nr: 18142385 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 10-06 290 DATE: October 15, 2018 ORDER An initial disability rating of 30 percent, but no higher, for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT Resolving doubt in favor of the Veteran, the Veteran demonstrated hearing acuity of Levels VII to VIII in the right ear and hearing acuity of Level V in the left ear. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1–4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to December 1954. This matter came before the Board of Veterans’ Appeals (Board) on appeal from January 2010, September 2014, July 2015, and January 2017 rating decisions. In February 2014, a Board videoconference hearing was held before a Veterans Law Judge (VLJ) no longer with the Board, and a transcript is of record. As the VLJ who presided at a hearing must participate in the decision on the claim, 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707, the Veteran was offered the opportunity for another hearing before the VLJ who would decide his case. As he did not respond within the requisite 30 days, it is presumed that he has waived this hearing. 38 C.F.R. §§ 19.3(b), 20.707. In this regard, the undersigned has reviewed the hearing transcript. In a January 2015 Board decision signed by the prior VLJ on this appeal, the Board determined that the Veteran’s bilateral hearing loss warranted a rating of 10 percent prior to February 19, 2014, and a rating of 30 percent thereafter, and that referral for an extraschedular rating was not warranted. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a June 2016 memorandum decision, the Court vacated the Board’s January 2015 decision and remanded this case for further proceedings consistent with the Court’s decision. Most recently, in November 2017, the Board remanded this appeal for readjudication and issuance of a supplemental statement of the case if warranted, and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its November 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI, Table VII. Table VI correlates the average puretone threshold (derived from the sum of the 1000, 2000, 3000, and 4000-Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. The table is applied separately for each ear to derive the values used in Table VII. Table VII is used to determine the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. The assignment of a rating for hearing loss is achieved 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). The Board notes that while the regulations direct the averaging of four specific puretone threshold values, they do not address the derivation of speech recognition scores produced during a testing session. Rather, this is addressed by a Veteran’s Health Administration (VHA) handbook. VHA Handbook 1170.02 (Mar. 14, 2011, recertified Mar. 31, 2016), defines VHA audiology and Speech-Language Pathology Services, and Appendix C addresses speech recognition test procedures. It directs that the Maryland CNC word list is to be first presented at a level that is 40 dBs above the speech recognition threshold or at least 5 dB above the threshold at 2000 Hz, if not above the veteran’s tolerance level. Id. at 2.h(1). If speech recognition is worse than 94 percent after presentation of the full list, then a modified performance-intensity function must be performed. Id. at 2.h(2). The modified performance-intensity function is performed as follows: Present 25 words at 6 dB above and 6 dB below the starting point of 5 dB above the threshold at 2000 Hz. If recognition performance improves less than 6 percent, then maximum word recognition performance has been obtained. If the performance improves by 6 percent or more at the first 6 dB-increment, then word recognition is measured using another 25 words at an additional 6-dB increment. A full list of 50 words is then presented at the level of maximum performance. The word recognition performance at this level is reported as the speech recognition score. Only the best performance for a full list of 50 words will be reported. Id. at 2.h(2)(a)–(f). An example provided is: if the starting hearing level is 50 dB and the initial performance is 80 percent, then the hearing level is increased to 56 dB. If the performance improves to 88 percent, then the hearing level is increased to 62 dB. If the performance decreases to 84 percent, then the full list is tested at a hearing level of 56 dB. Id. at 2.h(2)(e). Various iterations of the disability benefits questionnaires (DBQ) for audio examinations are in use. The February 2010 version included the instructions for the modified performance-intensity function testing, stating it is triggered at speech recognition of 92 percent or less. The current DBQ used by VA examiners contains no instructions at all about testing procedure, as seen in the May 2017 report in this case. As seen in the August 2014 report in this case, the DBQ used by contract VA examiners contains detailed instructions on how to conduct the puretone audiometry examination, but as for speech recognition testing, it merely states: “When speech discrimination is 92% or less, a performance intensity function must be obtained.” In this case, the undersigned and counsel have undergone a thorough review of the evidence of record (this is the first time this case has been reviewed by the undersigned). The evidence of record contains, in addition to computer generated DBQs for hearing loss and tinnitus, the handwritten audiological evaluation sheets from several of the examinations. As shown below, this raw data is extremely informative and, as in this case, may be dispositive in evaluating the severity of a Veteran’s hearing impairment. Many have examined this appeal in the past, including the Veteran’s representative before the Board, the Veteran’s representative before the Court, among others, but there has been no advocacy or reference on this specified notable point. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. As factfinder, the Board is responsible for determining the credibility and weight to be given to evidence. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). From the outset, the Board notes that the Veteran is competent to report his symptoms and the Board finds him credible, but he is not competent to state whether his symptoms warrant a specific disability rating, which requires medical expertise that the Veteran has not been shown to have. See 38 C.F.R. § 3.159(a)(1)–(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). Accordingly, as constrained by the mechanical application of testing data to regulatory tables, the Board places more weight on the probative medical evidence of record for determining the specific disability rating. See 38 C.F.R. § 4.85(h), Table VI, Table VII. In so doing, the Board has the responsibility of weighing conflicting medical evidence and opinions and may place greater weight on one set of data over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). An initial disability rating of 30 percent, but no higher, for bilateral hearing loss is granted. The Veteran contends that his service-connected bilateral hearing loss was more disabling than contemplated by the initial disability rating of 10 percent assigned prior to February 19, 2014, and 30 percent thereafter. The question for the Board is whether the Veteran’s disability picture more nearly approximates the criteria for a higher disability rating. In considering the evidence of record under the laws and regulations set forth herein, resolving doubt in favor of the Veteran, the Board concludes that an initial disability rating of 30 percent, but no higher, is warranted for his bilateral hearing loss. In December 2009, the Veteran was afforded a VA examination for hearing loss, performed by The Hearing Center, as a VA contractor. The report consisted of just the handwritten audiological evaluation sheet prepared by the audiologist during the examination. The report shows that the speech recognition thresholds were 26 and 24 dB for the right and left ears, respectively. The following puretone thresholds based on air conduction were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 65 75 70 61.25 LEFT 30 55 60 70 53.75 Based upon this data, the starting hearing level for the speech recognition testing should have been 70 dB for the right ear (threshold at 2000 Hz plus 5 dB) and 65 dB for the left ear (speech recognition threshold plus 40 dB). The report shows that at 65 dB for each ear, the speech recognition scores were 48 and 72 percent for the right and left ears, respectively. The report shows that at 90 dB, the speech recognition scores were 72 and 76 percent, respectively. In the January 2010 rating decision that is on appeal, the speech recognition scores at 90 dB were used to assign a disability rating of 10 percent. Considering that there is no apparent basis for having tested the Veteran’s speech recognition ability at 90 dB, either by protocol or documentation in the report, and resolving doubt in the Veteran’s favor, the Board will use the speech recognition scores of 48 and 72 percent for the right and left ears, respectively, as they were produced at prescribed starting level. For the Veteran’s right ear, by intersecting the average puretone decibel loss falling between 58 and 65 with the percent speech recognition from 44 to 50, the resulting numeric designation from Table VI is VIII. For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 50 to 57 with the percent speech recognition from 68 to 74, the resulting numeric designation from Table VI is V. Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of VIII for the right ear on the axis of the poorer ear and a numeric designation of V for the left ear on the axis for the better ear, the Board finds that the point of intersection on Table VII requires a 30 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h). The Veteran’s VA medical records show that in March 2012 he was fitted for hearing aids, during which a hearing examination was conducted. According to the audiological evaluation worksheet prepared during the examination, the speech recognition thresholds were 40 and 30 dB for the right and left ears, respectively. The following puretone thresholds based on air conduction were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 75 75 70 67.5 LEFT 35 55 60 60 52.5 The report shows that the Veteran’s speech recognition ability was tested only at 85 dB for the right ear and 75 dB for the left ear, producing scores of 48 and 80 percent for the right and left ears, respectively. For the Veteran’s right ear, by intersecting the average puretone decibel loss falling between 66 to 73 with the percent speech recognition from 44 to 50, the resulting numeric designation from Table VI is VIII. For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 50 to 57 with the percent speech recognition from 76 to 82, the resulting numeric designation from Table VI is IV. Consulting Table VII, with a numeric designation of VIII for the right ear on the axis of the poorer ear and a numeric designation of IV for the left ear on the axis for the better ear, the Board finds that the point of intersection on Table VII requires a 20 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h). During the March 2012 examination, the Veteran reported longstanding hearing loss, gradually worsening. He reported that three months before the hearing in his right ear “went out completely.” Over the course of a week it gradually improved, but it was not as good as before it “went out.” He reported that he had hearing difficulties in church, one-on-one, restaurants, small crowds, telephone, and television. He denied dizziness, vertigo, and ear pain or discharge. On the screening for Hearing Handicap Inventory for the Elderly, the Veteran responded “Yes” that hearing problems caused: embarrassment meeting new people; frustration talking with family members; difficulty hearing a whisper; difficulty visiting others; curbed attendance of religious services; difficulty listening to TV or radio; limitations on personal or social life. He responded “Sometimes” that hearing problems caused: feelings of being handicapped; arguments with family members; and difficulties in restaurants with others. His cumulative score of 34 corresponded with severe perceived handicap. The records show that the Veteran was referred for an ENT consultation for evaluation of the sudden total hearing loss in the right ear prior to hearing aid fitting, which occurred in May 2012. It was noted that there was still assymetry in hearing between the ears. The Veteran reported that his hearing was back to normal as it was before the change in his hearing. He reported not having any complaints, and he was cleared for hearing aid fitting. During the February 2014 Board hearing before a different VLJ than the undersigned, the Veteran testified that since the December 2009 VA examination his hearing had gone down 30 percent. In August 2014, the Veteran was afforded a VA examination, again performed by The Hearing Center, the report of which consisted of a free-form typed report, handwritten audiological evaluation sheet, and a filled-in standardized VA DBQ for hearing loss and tinnitus. It was noted that the Veteran reported his hearing loss was bothersome but he had become accustomed to it. He reported that at fifteen feet he had a hard time hearing. According to the handwritten audiological evaluation sheet prepared during the examination, the Veteran’s speech recognition thresholds were 36 and 32 for the right and left ears, respectively. The following puretone thresholds based on air conduction were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 45 75 80 70 67.5 LEFT 35 60 60 65 55 Based upon this data, the starting level for the speech recognition testing should have been 80 dB for the right ear (threshold at 2000 Hz plus 5 dB) and 72 dB for the left ear (speech recognition threshold plus 40 dB). The report shows that for the right ear at 76 dB, the speech recognition score was 60 percent; at 82 dB it was 64 and 66 percent, with the 66 percent indicated as the full 50-word list; and at 70 dB it was 40 percent. The report shows for the left ear at 72 dB, the speech recognition score was 76 percent; at 78 dB it was 72 percent; at 72 dB it was 72 percent, and it was indicated that this was the complete 50-word list; and at 66 dB, the speech recognition score was 72 percent. The record reveals that the typed free-form report of this examination shows speech recognition scores of 66 and 72 percent for the right and left ears respectively. The standardized DBQ form, on the other hand, shows speech recognition scores of 66 percent for both ears. In the September 2014 rating decision, speech recognition scores of 66 and 72 percent for the right and left ears, respectively, were used, and an evaluation of 30 percent disabling was assigned. As 82 and 72 dB were appropriate hearing levels by protocol, by protocol 66 and 72 percent are the appropriate speech recognition scores for the right and left ears, respectively. For the Veteran’s right ear, by intersecting the average puretone decibel loss falling between 66 to 73 with the percent speech recognition from 60 to 66, the resulting numeric designation from Table VI is VII. For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 50 to 57 with the percent speech recognition from 68 to 74, the resulting numeric designation from Table VI is V. Consulting Table VII, with a numeric designation of VII for the right ear on the axis of the poorer ear and a numeric designation of V for the left ear on the axis for the better ear, the Board finds that the point of intersection on Table VII requires a 30 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h). In May 2017, the Veteran was afforded a VA examination during which he reported that he thought his hearing was pretty close to what it was the last time he was tested. As to his right ear, he reported that he could not hear “hardly anything out of it” but he heard okay with his left ear. He reported that he did not wear his hearing aids. For this examination, the record contains only the computer generated DBQ, which shows speech recognition scores of 68 and 80 percent for the right and left ears, respectively. The following puretone thresholds based on air conduction were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 80 80 75 71.25 LEFT 40 65 65 70 60 For the Veteran’s right ear, by intersecting the average puretone decibel loss falling between 66 to 73 with the percent speech recognition from 68 to 74, the resulting numeric designation from Table VI is VI. For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 58 and 65 with the percent speech recognition from 76 to 82, the resulting numeric designation from Table VI is IV. Consulting Table VII, with a numeric designation of VI for the right ear on the axis of the poorer ear and a numeric designation of IV for the left ear on the axis for the better ear, the Board finds that the point of intersection on Table VII requires a 20 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h). Based upon a careful, thorough review of the foregoing, and addressing the issues raised by the Court in its June 2016 memorandum decision and remand, resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s disability picture more nearly approximates an initial evaluation of 30 percent disabling, but no higher. Referral for an extraschedular rating is not warranted. The record in this case illustrates two pertinent phenomena in hearing loss cases: 1) by relying on an examiner’s arbitrary reporting of a single speech recognition score, without reviewing the raw data generated during audiology examinations, at times adjudicators are relying on flawed examination reports due to failure to follow the protocol as well as simple transcription errors, and 2) that while one’s hearing may not have changed, test results are rarely consistent, suggesting variably random improvement and worsening from test to test. As discussed above, the corresponding evaluation for the December 2009 examination is 30 percent disabling; for the March 2012 examination is 20 percent disabling; for the August 2014 examination is 30 percent disabling; and for the May 2017 examination is 20 percent disabling. The Veteran, however, has never said that his hearing had improved. Indeed, the evidence establishes that since the Veteran filed his claim for service connection for hearing loss that his hearing disability has impacted every aspect of activities of daily living, his relationships, and his quality of life. He has stated that he cannot hear past fifteen feet. The survey during the March 2012 hearing aid fitting shows that the Veteran perceived a severe handicap. The Veteran reported and was evaluated for an episodic complete loss of hearing in his right ear, and during the March 2017 examination, he reported that essentially he could not hear out of that ear. The Board notes that during the December 2009 examination, even at 90 dB, which was 25 and 35 dB above his puretone thresholds at 2000 Hz for the right and left ears, respectively, the Veteran’s speech recognition scores were only 72 and 76 percent, respectively. Sufficient to drop the disability rating to 10 percent, but not representative of the Veteran’s disability since people are not communicating with him at a 90 dB level. The Board does not find the mechanical test results of the March 2012 examination probative because the spuriously high speech recognition score of 80 percent for the left ear is inconsistent with other testing and with the Veteran’s reports of hearing acuity. Because the record does not contain the raw data supporting the computer generated DBQ from the May 2017 examination, likewise, the Board does not find that examination report probative since there is no evidence that the Veteran’s hearing has improved. Indeed, during the February 2014 hearing before a different VLJ than the undersigned, he testified that he believed his hearing had gone down since it was tested in December 2009, and during the May 2017 examination, he stated that he thought it was the same as when it was tested in August 2014. Accordingly, resolving doubt in favor of the Veteran, the Board finds that an initial disability rating of 30 percent, but no higher, is warranted. The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. As shown above, none of the examination reports demonstrate that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or that the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, the provisions of 38 C.F.R. § 4.86 do not apply. See 38 C.F.R. § 4.86(a), (b). The Board also considered whether an extraschedular rating is warranted for the Veteran’s service-connected bilateral hearing loss. 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). 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, 22 Vet. App. 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 puretone testing. Here, all the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. As he reported during the March 2012 examination for fitting hearing aids, his hearing loss disability has manifested in difficulty hearing and understanding speech in crowds, on the telephone, at a distance, and on television. He denied dizziness, vertigo, ear pain, or discharge. In this regard, it is important for the Veteran to understand that a 30% disability will cause the Veteran many problems (this is not in dispute: a 30% hearing loss disability evaluation is a significant problem). The only question is the degree. 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 not demonstrated 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 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, 28 Vet. App. 366 (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 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 a disability rating of 30 percent, but no higher. There are no additional expressly or reasonably raised issues presented on the record. 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). (Continued on the next page)   As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was 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 is raised by the record. See 38 C.F.R. § 4.16. There is no evidence of record suggesting that the Veteran’s service-connected bilateral hearing loss has rendered him unable to secure or follow a substantially gainful occupation. Indeed, during a May 2015 VA examination in connection with his claim for service connection for a back condition, it was recorded that after service the Veteran worked fourteen years as a deck hand on river boats and as a boat captain for thirty years. While this disability clearly caused the Veteran problems (if it did not, there would be no basis for the 30 percent finding), there is no evidence that the Veteran did not continue working due to his hearing loss. Furthermore, the Veteran’s statements concerning the manifestation of his hearing disability have all related to non-employment environments. Accordingly, a TDIU claim has not been raised and no action pursuant to Rice is warranted. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney