Citation Nr: 1808247 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-09 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than January 23, 2014, for the grant of secondary service connection for tinnitus. 2. Entitlement to an initial compensable disability rating for left ear hearing loss disability from May 12, 1978 to June 25, 2010. 3. Entitlement to an initial disability rating greater than 10 percent for left ear hearing loss disability on and after June 25, 2010. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from March 28, 1978 to May 11, 1978 in the United States Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2013, February 2014, and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2014, the Veteran testified at a Central Office hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. In July 2015, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the RO substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran requested a hearing before the Board on the denial of an earlier effective date for the grant of service connection for tinnitus. However, in January 2015, the Veteran expressly withdrew his pending hearing request. Accordingly, the Board may proceed with adjudication of the appeal. (On a side note, the initial rating issues on appeal for left ear hearing loss arose under an uncommon circumstance. That is, in a December 2012 Board decision, the Board concluded there was clear and unmistakable error (CUE) in an earlier December 1978 rating decision that had denied service connection for left ear hearing loss. In the March 2013 rating decision on appeal, the RO implemented the Board's decision on CUE by granting service connection for left ear hearing loss. Based on the Board's CUE determination, the RO assigned the staged ratings for left ear hearing loss that are now before the Board (0 percent from May 12, 1978 to June 25, 2010; and 10 percent after June 25, 2010). The Veteran has appealed both the 0 percent and 10 percent ratings. He is requesting a higher 100 percent rating for left ear hearing loss back to May 12, 1978). FINDINGS OF FACT 1. The earliest date of entitlement for tinnitus is May 25, 2010 (the date of a VA QTC medical history worksheet in which the Veteran first reported tinnitus). 2. Prior to May 25, 2010, the record contains neither a statement nor communication from the Veteran, nor any medical evidence, that can reasonably be construed as constituting an earlier claim for service connection for tinnitus. 3. From May 12, 1978 to the present, the Veteran's service-connected left ear hearing loss disability warrants a compensable rating under the "old" (pre-December 1987) rating criteria for hearing impairment. The evidence demonstrates a literal designation of impaired efficiency of "F" in the left ear and of "A" in the right ear, based on the in-service and post-service audiograms of record. 4. From May 12, 1978 to the present, under the "new" (post-December 1987 and post-June 1999) rating criteria for hearing impairment, at worst, even with consideration of the exceptional pattern of hearing loss in the left ear, the Veteran has Level I hearing loss in the right ear and Level XI hearing loss in the left ear. CONCLUSIONS OF LAW 1. The requirements are met for an earlier effective date of May 25, 2010, but no earlier, for the award of secondary service connection for tinnitus. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.157, 3.160(c), 3.310, 3.400 (2017). 2. From May 12, 1978 to the present (for the entire appeal period), the criteria are met for an initial 10 percent rating, but no greater, for the Veteran's service-connected left ear hearing loss disability under the "old" regulations. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017); 38 C.F.R. §§ 3.383, 4.85, 4.86, 4.86a, 4.87, and 4.87a, Diagnostic Codes 6277 to 6297 (1979). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). For both the earlier effective date and higher initial rating issues on appeal, neither the Veteran nor his representative has raised any issues for the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In fact, in an October 2016 SSOC notice response, the Veteran indicated that he had no other information or evidence to submit. He requested appellate consideration by the Board as soon as possible. In addition, the Veteran has submitted Congressional letters and several other statements requesting adjudication by the Board in an expeditious fashion. II. Earlier Effective Date for Tinnitus A. Factual Background and Contentions Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (emphasis added) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)). In fact, the Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Service treatment records (STRs) dated in 1977 and 1978 reveal the Veteran sought treatment for left ear hearing loss. However, there is no mention of tinnitus in the Veteran's STRs. On May 11, 1978, the Veteran was discharged from active duty. This discharge was the result of limitations due to his left ear hearing loss. On May 12, 1978, within a year of discharge from active duty, the Veteran filed a formal claim for service connection for hearing loss. See VA Form 21-526 (Veteran's Application for Compensation). However, there was no mention of tinnitus in his application. In a December 1978 rating decision, the RO denied service connection for hearing loss. The Veteran was notified of the rating decision in January 1978 and of his appellate rights, but he did not submit a notice of disagreement (NOD). He also did not submit any additional evidence relevant to that claim within one year of the decision. The notice of denial was sent to the most recent address that the Veteran had provided. It was not returned as undeliverable. Notably, the RO did not mention tinnitus in its denial. Private (Patient First) and VA treatment records dated from 2001 to 2009 revealed treatment for a variety of conditions to include left ear hearing loss. However, there was no mention of tinnitus or symptoms similar to tinnitus. On March 10, 2010, the Veteran filed a formal claim for service connection for hearing loss. See VA Form 21-526 (Veteran's Application for Compensation). However, there was no mention of tinnitus in his application. In an April 26, 2010 statement from the Veteran, he reported left ear hearing loss during service. However, there was no mention of tinnitus or symptoms similar to tinnitus. In a May 25, 2010 QTC medical history worksheet associated with his June 2010 VA QTC audiology examination, the Veteran reported recurrent and intermittent tinnitus on a monthly basis. At a January 23, 2014 VA QTC audiology examination, the Veteran reported current tinnitus. He stated to the VA examiner that the tinnitus spontaneously emerged without a specific triggering event in 1978 while on active duty, after exposure to M-16 rifle noise. Tinnitus was constant in the right ear. The VA examiner opined that the Veteran's tinnitus was a symptom associated with his hearing loss. In the February 2014 rating decision on appeal, the RO granted service connection for tinnitus as secondary to service-connected left ear hearing loss. The grant of service connection was based on the January 23, 2014 VA QTC examiner's opinion that the Veteran's tinnitus was secondary to his service-connected left ear hearing loss. The RO established an effective of January 23, 2014, which appears to be the date of entitlement for secondary service connection for tinnitus (i.e., January 23, 2014 was the date a VA QTC audiology examiner first diagnosed the Veteran with tinnitus secondary to service-connected hearing loss). See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). That is, here, the date entitlement arose for tinnitus (January 23, 2014), appears to be later than any purported date of claim for tinnitus (March 10, 2010). In a May 2014 NOD, the Veteran appealed the effective date assigned for the grant of secondary service connection for tinnitus. The appeal eventually reached the Board. The Veteran and his representative have contended that the effective date assigned for the grant of service connection for tinnitus (January 23, 2014), is incorrect. He seeks an earlier effective date for tinnitus of either May 25, 2010 (the date of an earlier VA QTC medical history worksheet in which the Veteran reported tinnitus), or May 12, 1978 (the day after discharge from active duty). He says he first noticed his tinnitus either during active duty or immediately after active duty in 1978. Since service connection for his left ear hearing loss has been awarded effective back to May 12, 1978, he believes his tinnitus should be as well. See May 2014 informal NOD; May 2014 formal NOD (VA Form 21-0958); August 2014 Central Office Hearing testimony; September 2016 VA audiology examinations. B. Law and Analysis for EED Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A finally adjudicated claim is defined as "an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction." 38 C.F.R. § 3.160(d). Such an action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). At the outset, the Board is mindful that effective March 24, 2015, VA regulations no longer recognize informal claim for benefits. See 79 Fed. Reg. 57694 - 57697 (Sept. 25, 2014). That is, a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (effective March 24, 2015). However, the final rulemaking is only applicable with respect to claims and appeals filed on or after March 24, 2015. Therefore, as the tinnitus claim at issue was clearly pending prior to March 24, 2015, these changes are not for consideration in the present case. Upon review of the evidence, the Board finds that an earlier effective date of May 25, 2010, but not earlier, is warranted for the award of service connection for tinnitus. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56. With regard to the earliest date of entitlement, the first credible, probative evidence in the record of symptoms of tinnitus is a May 25, 2010 VA QTC medical history worksheet associated with the June 2010 VA QTC audiology examination, in which the Veteran reported recurrent and intermittent tinnitus on a monthly basis. With regard to the earliest date of claim, it appears the RO may have inferred service connection for tinnitus after the Veteran filed his March 10, 2010 formal claim for service connection for hearing loss, although this is not entirely clear. See VA Form 21-526 (Veteran's Application for Compensation). It is noted there was no mention of tinnitus in this application. In any event, the date entitlement arose for secondary service connection for tinnitus (May 25, 2010 VA QTC medical history worksheet), is later than the date of receipt of the purported claim for service connection claim for tinnitus (March 10, 2010). As such, the proper effective date in the present case for tinnitus would be the date entitlement arose - May 25, 2010. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). However, the Board concludes that the Veteran is not entitled to an effective date even earlier than May 25, 2010 for the grant of secondary service connection for tinnitus. With regard to an earlier date of claim, the evidence of record contains no other communication from the Veteran or his representative indicating an intent to file a claim for service connection or secondary service connection for tinnitus at any time between the day after discharge from service (May 12, 1978) and the current effective date assigned (May 25, 2010). 38 C.F.R. §§ 3.1(p), 3.155(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Further, there is no provision in the law for awarding an earlier effective date based on the Veteran's assertion that symptoms of tinnitus existed from the time of his military service in 1978. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57. The Board's actions are bound by the applicable law and regulations as written; the Board has no power to grant benefits not authorized by law. 38 U.S.C. § 7104(c). In this regard, prior to May 25, 2010, the record does not include any formal or informal communication indicating intent to apply for tinnitus from the Veteran or his representative. On May 12, 1978, within a year of discharge from active duty, the Veteran filed a formal claim for service connection for hearing loss. See VA Form 21-526 (Veteran's Application for Compensation). However, there was no mention of tinnitus or symptoms of tinnitus in this application. Thus, there was no intent to apply for benefits for tinnitus at that earlier time. Thus, the effective date for tinnitus obviously cannot be the day following his discharge from service. 38 C.F.R. § 3.400(b)(2). In addition, the Veteran did not express his intent to apply for tinnitus benefits within the VA and private medical evidence (Patient First) dated from 2001 to 2009. The Board also emphasizes that the effective date assigned for a secondarily service-connected disability does not relate back to the filing date of a prior claim for the antecedent disability. Ellington v. Nicholson, 22 Vet. App. 141 (2007). The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition. Ross v. Peake, 21 Vet. App. 528 (2008). The plain meaning of 38 C.F.R. § 3.310(a) is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). This includes the assignment of an effective date. Accordingly, as with any other claim, the effective date assigned for a secondarily service-connected condition is governed by § 3.400. Consequently, the effective date for the Veteran's secondarily service-connected tinnitus disability is based solely on the date VA received his claim for secondary service connection. It would not relate back to the date he filed his original claim for the underlying service-connected left ear hearing loss - May 12, 1978. Moreover, the issue of CUE in a specific prior RO or Board decision as to tinnitus has not been raised by the Veteran and is not before the Board at this time. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Even a sympathetic reading of the Veteran's various submissions does not indicate that he has raised a claim of CUE with any earlier rating decision or Board decision with regard to tinnitus. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)) (finding that VA is obligated to sympathetically read the filings of a pro se Veteran). With regard to the earliest date of entitlement, the first credible, probative evidence in the record of symptoms of tinnitus is a May 25, 2010 VA QTC medical history worksheet associated with the June 2010 VA QTC audiology examination, in which the Veteran reported recurrent and intermittent tinnitus on a monthly basis. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). However, all of the evidence dated prior to May 25, 2010 - the Veteran's lay statements, private medical evidence, VA medical evidence, and STRs, discuss symptomatic left ear hearing loss and occlusion of the left ear canal, but failed to ever mention tinnitus or symptoms of tinnitus. Therefore, his latter allegations that his tinnitus began in 1978 during service are not credible. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). In fact, a September 2016 VA QTC audiology examiner opined that the Veteran's "reporting of his tinnitus symptoms are not accurate or reliable." For date of entitlement purposes, the Board is aware that a particular piece of evidence can demonstrate symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56. But in the present case, tinnitus is simply not credibly shown by record prior to May 25, 2010. The Board is also aware that "the 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well, based on several factors. Adams, 568 F.3d at 962-63. However, there was no explicit or implicit reference to tinnitus or symptoms thereof in the earlier December 1978 rating decision denying service connection for hearing loss, and there was no earlier informal claim from the Veteran for tinnitus. It follows that the "implicit denial rule" holdings are inapplicable to the present case. See e.g., Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009)) (the four factors to be considered includes: (1) the specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication; (3) timing of the claims; and (4) whether the claimant is represented). Accordingly, the Board concludes that May 25, 2010, the date of entitlement for secondary service connection for tinnitus, is the proper effective date for the tinnitus award. 38 U.S.C. § 5107(b). III. Increased Rating for Left Ear Hearing Loss A. Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Veteran's left ear hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran is service-connected for left ear hearing loss after exposure to M-16 rifle range gunfire and explosions in basic training during active duty in 1978. The rating for the Veteran's left ear hearing loss disability has already been staged by the RO for different periods of time: From May 12, 1978 to June 25, 2010, the Veteran's left ear hearing loss is rated as noncompensable (0 percent disabling). On and after June 25, 2010, the Veteran's left ear hearing loss is rated as 10 percent disabling. During the course of the appeal (from May 12, 1978 to the present), VA has revised the criteria for evaluation of hearing impairment on several occasions. In particular, the schedular criteria for hearing loss that were in effect at the beginning of the rating period on appeal were substantially amended, effective December 18, 1987. See 53 Fed. Reg. 44117 (Nov. 18, 1987). Additionally, clarifying amendments to the hearing loss criteria were made, effective June 10, 1999. See 64 Fed. Reg. 25202 to 25210 (May 11, 1999). The Board will now briefly discuss the three sets of rating criteria for hearing impairment: Prior to December 18, 1987, the hearing loss rating criteria in effect provided for ratings ranging from 0 percent to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by controlled speech reception tests or puretone audiometry reported as a result of VA regional office or authorized audiology clinic examinations (or, where no other data was available, based on conversational voice in feet). 38 C.F.R. §§ 4.85, 4.86, 4.86a, 4.87, and 4.87a, Diagnostic Codes 6277 to 6297 (1979). Prior to December 18, 1987, if the results of controlled speech tests were used to evaluate the disability, the adjudicator was to refer to Table VI, which divided hearing impairments into six categories, "A" through "F," based on impairment in auditory efficiency, to determine the appropriate "literal designation" for each ear. 38 C.F.R. § 4.85(a) (1979). The adjudicator was then to determine the percentage evaluation to be assigned by looking to Table VII, intersecting the horizontal row appropriate for the literal designation for the ear having the better hearing and the vertical column appropriate to the literal designation for the ear having the poorer hearing. 38 C.F.R. § 4.85(b) (1979). Prior to December 18, 1987, if the results of pure tone audiometry were used to evaluate the disability, the adjudicator was to ascertain the literal designation for each ear from one portion of table VII (based on the average decibel loss at three frequencies: 500 Hertz, 1000 Hertz, and 2000 Hertz), then determine the percentage evaluation to be assigned by referring to another portion of Table VII, intersecting the horizontal row appropriate for the literal designation for the ear having the better hearing and the vertical column appropriate to the literal designation for the ear having the poorer hearing. 38 C.F.R. § 4.85(c) (1979). Prior to December 18, 1987, regardless of whether controlled speech tests were used, or pure tone audiometry, if service connection was in effect for defective hearing in only one ear, and the veteran did not have total deafness in both ears, the hearing acuity of the nonservice-connected ear was considered normal (literal designation "A"). 38 U.S.C. § 360 (West 1979); 38 C.F.R. § 3.383(c) (1979). Effective December 18, 1987 and June 10, 1999, the rating criteria were revised to include hearing loss at higher frequencies. See 53 Fed. Reg. 44117 (Nov. 18, 1987); 64 Fed. Reg. 25202 (May 11, 1999). The amendments to the rating criteria effective from December 18, 1987 were major and substantive changes. The December 18, 1987 Rating Schedule was amended for the inclusion of two new tables that replaced the previous tables for hearing loss. The December 18, 1987 rating criteria were also revised to include hearing loss at higher frequencies. However, with regard to the latter June 10, 1999 amendments, these amendments were not intended to make any substantive changes, but merely to add certain provisions that were already the practice of VA. See again 64 Fed. Reg. 25202 (1999) (codified at 38 C.F.R. § 4.85). The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment were not changed from the earlier December 1987 amendments. But the additional June 10, 1999 amendments incorporated some explanatory comments concerning VA's method of rating a hearing loss disorder, changed the Diagnostic Codes used when evaluating hearing loss, and added 38 C.F.R. § 4.86 (dealing with exceptional patterns of hearing loss). In particular, the June 10, 1999 amended regulations added two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veteran's experience. See 64 Fed. Reg. 25203 (May 11, 1999). According to both the December 18, 1987 and June 10, 1999 amendments, in evaluating 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from 0 percent to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test (Maryland CNC). The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85 (2017). For "exceptional patterns of hearing impairment," VA regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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) (2017). For "exceptional patterns of hearing impairment," the provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b) (2017). As such, the Veteran's left ear hearing loss claim will be considered under the pre- December 18, 1987 rating criteria, as well as the post-December 18, 1987 criteria and June 10, 1999 amendments. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The above amendments in question for evaluation of hearing impairment have established the effective dates without a provision for retroactive application. Thus, if the revised regulations are more favorable to the claimant, then an award of an increased rating based on a change in law may be granted retroactive to, but no earlier than, the effective date of the change. See VAOPGCPREC 3-2003. Therefore, the Board will discuss both the "old" and "new" rating criteria for hearing loss (in essence - the rating criteria both prior to and after December 18, 1987). For evidence dated prior to December 18, 1987, the Board may only apply the "old" version of the rating criteria for hearing loss. But for evidence dated on and after December 18, 1987, the Board can apply whichever version of the rating criteria is most favorable to the Veteran. Stated another way, the new versions of the rating criteria for hearing loss (beginning December 18, 1987 and June 10, 1999) will be applied only after their effective dates. In contrast, the old version of the schedular rating criteria for hearing loss (pre-December 1987 criteria) will be applied for the entire appeal period (i.e. from May 12, 1978 to the present). The Board observes that the RO did not consider the "old" pre-December 18, 1987 regulations for hearing loss in either the rating decision on the appeal, in the SOC, or in the SSOC. Nonetheless, under VA regulation, the Board may still consider the "old" pre-December 18, 1987 regulations in the first instance without remand to the RO. See 38 C.F.R. § 19.9 (d)(2) (2017) (providing that a remand or referral to the RO is not necessary for the purpose of considering law not already considered by the RO, including, but not limited to, statutes, regulations, and court decisions). As a lay person, throughout the course of the entire appeal, the Veteran has claimed that his left ear hearing loss is getting worse and believes that he is entitled to initial ratings higher than 0 percent and 10 percent throughout the entire appeal period. In particular, he asserts that he is entitled to a total 100 percent rating for his left ear hearing loss, effective from May 12, 1978, the day after discharge from service. He says it is unfair that for over 30 years post-service he did not receive a compensable rating for his left ear hearing loss. He says he is completely deaf in the left ear. He asserts that at his job at Farm Fresh, he cannot hear his supervisor or a page request on the speakers or on the telephones. This impacts his performance at work. His hearing loss also makes his boss angry. He finds this embarrassing - sometimes he cries. He has to read peoples lips. He misses parts of conversations. When a person speaks to him, the Veteran has to turn his body towards the right, because his service-connected left ear is deaf. He finds it difficult to adapt to this handicap. He also cannot hear a police officer when he is stopped at a traffic stop. Thus, his hearing loss impacts his ability to work and his activities of daily living. See August 2014 Central Office Hearing testimony; May 2010 VA QTC worksheet; May 2013 NOD; March 2014 VA Form 9; October 2015 Veteran statement; September 2016 VA QTC audiology examination; second September 2016 VA audiology examination. B. IR Left Ear HL at 0% and 10% - Schedular Rating As noted above, the rating for the Veteran's left ear hearing loss disability has already been staged by the RO for different periods of time: From May 12, 1978 to June 25, 2010, the Veteran's left ear hearing loss is rated as noncompensable (0 percent disabling). On and after June 25, 2010, the Veteran's left ear hearing loss is rated as 10 percent disabling. Upon review, throughout the entire appeal period, from May 12, 1978 to the present, the evidence of record supports a higher initial 10 percent disability rating for left ear hearing loss. 38 C.F.R. § 4.7. In awarding a higher 10 percent rating, the Board has applied the "old" pre-December 18, 1987 rating criteria for hearing loss for the entire appeal. An April 1978 STR physical profile record recorded the Veteran's complaint of being unable to hear his drill sergeant. The Veteran was given a hearing profile of 2 for sensorineural hearing loss in left ear. It was noted that he is deaf in one ear - the left ear. He has to rely on the right ear to communicate. He was discharged from service shortly thereafter on May 11, 1978. At an accompanying April 1978 STR audiogram, the Veteran complained of trouble hearing. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 X 5 LEFT 65 70 70 X 75 When applying the "old" pre-December 18, 1987 rating criteria for hearing loss to the April 1978 STR audiogram, a higher 10 percent evaluation reflects the Veteran's left ear hearing loss under the provisions of 38 C.F.R. §§ 4.85 to 4.87, Diagnostic Code 6291 (1979). Specifically, under the "old" pre-December 18, 1987 rating criteria, Table VI could not apply to the April 1978 STR audiogram, because no speech discrimination ability scores were taken at this audiogram. See 38 C.F.R. § 4.85(a) (1979). However, the Veteran's left ear hearing loss can be rated on the basis of pure tone audiometry thresholds. The April 1978 STR audiogram shows that the Veteran had an average pure tone loss of 68 decibels in his left ear at 500, 1000, and 2000 Hertz, with a maximum loss of 70 dB at 2000 Hertz. Under the version of Table VII in effect in 1979, those results correspond to a literal designation of "D" for the left ear. See 38 C.F.R. § 4.85(c) (1979). But for the right ear, as noted above, since he was not service-connected for hearing loss in the right ear, and the evidence does not otherwise demonstrate total deafness in both ears, his right ear hearing acuity would be considered normal - so literal designation of "A" for purposes of assigning a disability rating. See 38 C.F.R. § 3.383(c) (1979). In summary, when considering hearing loss in both the left and right ears, these hearing acuity levels ("D" and "A") warrant a 10 percent rating, but no higher, under Table VII. See 38 C.F.R. § 4.87a, Diagnostic Code 6291 (1979). The Board emphasizes that neither the 1987 amendments nor the 1999 amendments to the rating criteria for hearing loss can be applied to the April 1978 STR audiogram findings, without a provision for retroactive application. See again VAOPGCPREC 3-2003. However, throughout the entire appeal period, from May 12, 1978 to the present, the Board finds that the evidence of record does not warrant an initial disability rating in excess of 10 percent for left ear hearing loss. 38 C.F.R. § 4.7. In making this determination, the Board emphasizes the only adequate audiograms of record are the April 1978 STR audiogram and the June 2010 VA QTC audiology examination. In particular, the following evidence of record does not support a rating higher than 10 percent for the entire appeal period: In a November 1978 Application for Compensation (VA Form 21-526), the Veteran claimed service connection for hearing loss. Private treatment records from Patient First dated in March 2001, April 2002, April 2003, April 2004, January 2005, April 2006, July 2007, January 2009, and September 2009 revealed no complaints or audiograms relating to left ear hearing loss. In February 2010 and April 2010 Veteran statements, the Veteran asserted service connection for left ear hearing loss. He indicated he was discharged from service in 1978 because his left ear was damaged. A private treatment record from Patient First dated in February 2010 noted the Veteran was unable to hear from his left ear. An ENT exam showed his left ear canal was occluded. His eardrum was benign once wax was removed, but a little bit of wax was left. His left ear felt better after the wax was removed. No audiogram was conducted. In a March 2010 formal claim for service connection (VA Form 21-526), the Veteran stated he had loss of hearing from April 1978 to the present. In a May 2010 VA QTC worksheet, the Veteran reported he has hearing loss in the left ear - canal occluded. This hearing loss existed from April 1978 to the present. During basic training he was around the firing of arms and explosives. He indicated he cannot hear at all in the left ear as the years have progressed. VA treatment records dated from 2010 to 2015 documents complaints of left ear hearing loss, but with no audiology testing. In June 2010, the Veteran was afforded a VA QTC audiology examination. At that time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 15 20 LEFT 105 80 105 105 105 Under the "new" criteria, the pure tone threshold average was 19 decibels in the right ear and 99 decibels in the left ear, when considering the average of the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. The Maryland CNC controlled speech discrimination test revealed speech recognition of 100 percent in the right ear and 0 percent in the left ear. The VA examiner noted profound sensorineural hearing loss in the left ear. Under the "new" criteria, as noted above, the Veteran is only service-connected for the left ear. VA regulation states that when hearing loss is service-connected in one ear only, in order to determine the percentage evaluation from Table VII for the service-connected ear, hearing in the nonservice-connected ear is considered to be normal (assigned a Roman numeral I), subject to the provisions of § 3.383 of this chapter. 38 C.F.R. § 4.85(f) (2017). Under the "new" criteria, the Board observes that at the June 2010 VA QTC audiology examination, the puretone threshold at each of the four specified frequencies for the left ear is 55 decibels or more. Therefore, there is an exceptional pattern of hearing impairment in the left ear only. VA regulations provides that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). Under the "new" criteria, under the normally applied Table VI, the audiometric findings at the June 2010 VA QTC audiology examination equate to Level I hearing loss in the right ear and Level XI hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. As discussed above, because the right ear is not service connected, it is assigned a Roman numeral value of I (in any event, audio testing of this right ear would indicate a similar, if not identical, finding). When those values are applied to Table VII, a 10 percent evaluation reflects his left ear hearing loss under the provisions of 38 C.F.R. § 4.85. Under the "new" criteria, under Table VIa for an exceptional pattern of hearing impairment in the left ear, the audiometric findings at the June 2010 VA QTC audiology examination equate to Level I hearing loss in the right ear and Level X hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VIa. When those values are applied to Table VII, a 10 percent evaluation still reflects his left ear hearing loss under the provisions of 38 C.F.R. §§ 4.85, 4.86. Thus, the exceptional pattern of hearing impairment in the left ear does not provide for a higher rating in this instance under the "new" criteria. When applying the "old" pre-December 18, 1987 rating criteria for hearing loss to the June 2010 VA QTC audiology examination, similarly, a 10 percent evaluation reflects the Veteran's left ear hearing loss under the provisions of 38 C.F.R. §§ 4.85 to 4.87, Diagnostic Code 6282 (1979). Under the "old" pre-December 18, 1987 rating criteria, the June 2010 VA QTC audiology examination shows that the Veteran's speech discrimination ability was at that time determined to be 0 percent in his left ear, with a left ear speech reception threshold of 105 dB. Under the version of Table VI in effect in 1979, those results correspond to a literal designation of "F" for the left ear. See 38 C.F.R. § 4.85(a) (1979). However because he was not service-connected for defective hearing in his right ear, and the evidence did not demonstrate that he had total deafness (literal designation "F") in both ears, his right ear hearing acuity should have been considered normal - literal designation "A" for purposes of assigning a disability rating. See 38 C.F.R. § 3.383(c) (1979). In summary, when considering hearing loss in both the right and left ears, these hearing acuity levels ("A" and "F") for the right and left ears, respectively, in turn warranted no more than a 10 percent rating under Table VII. See 38 C.F.R. 4.87a, Diagnostic Code 6282 (1979). Under the "old" pre-December 18, 1987 rating criteria, even if the Veteran's left ear hearing loss disability had been rated on the basis of pure tone audiometry results, no more than a 10 percent rating would have been warranted. The June 2010 VA QTC audiology examination shows that the Veteran had an average pure tone loss of 97 dB in his left ear at 500, 1000, and 2000 Hertz, with a maximum loss of 105 dB at 2000 Hertz. Under the version of Table VII in effect in 1979, those results correspond to a literal designation of "E" for the left ear. As noted above, because he was not service-connected for defective hearing in his right ear, and the evidence did not demonstrate that he had total deafness (literal designation "F") in both ears, his right ear hearing acuity should have been considered normal - literal designation "A," for purposes of assigning a disability rating. In summary, when considering hearing loss in both the right and left ears, these hearing acuity levels ("A" and "E") for the right and left ears, respectively, in turn warranted no more than a 10 percent rating under Table VII. See 38 C.F.R. 4.87a, Diagnostic Code 6287 (1979). In a July 2010 NOD, the Veteran discussed in-service incurrence for left ear hearing loss. At the March 2011 DRO hearing, the Veteran discussed in-service incurrence for left ear hearing loss. In the May 2011 VA Form 9, the Veteran discussed in-service incurrence for left ear hearing loss. In a January 2012 representative statement (VA Form 1-646), evidence discussed was related to in-service incurrence for left ear hearing loss. At a January 2012 Travel Board hearing, the Veteran discussed in-service incurrence for left ear hearing loss. In a May 2013 NOD, the Veteran asserted that both his 0 percent and 10 percent ratings for left ear hearing loss should be higher. In a March 2014 VA Form 9, the Veteran asserted his left ear hearing loss should be higher than 0 percent for the 32 years he was assigned this rating, and higher than 10 percent as well. At an August 2014 Central Office Hearing and in an October 2015 Veteran statement, the Veteran requested a 100 percent rating for left ear hearing loss from 1978 to the present, because he is deaf in the left ear. The Veteran was also afforded a January 23, 2014 VA QTC audiology examination, a September 2016 VA QTC audiology examination, and a second September 2016 VA audiology examination. However, the VA examiners were not able to elicit adequate pure tone threshold responses or the use of an appropriate speech discrimination score. In other words, none of the three audiology examinations provided an adequate audiogram for rating purposes. The January 23, 2014 VA QTC audiology examiner wrote that he "CNT" - could not test the Veteran. The Veteran's responses were very variable and did not reflect organic thresholds. Frequencies could not be tested. Test results were deemed not valid for rating purposes. Also, the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The September 2016 VA QTC audiology examiner similarly wrote that he "CNT" - could not test the Veteran, for validity of puretone thresholds. The test results were deemed not valid for rating purposes (not indicative of organic hearing loss). The reason provided was that the Veteran demonstrated inaccurate and invalid test results suggesting non-organic hearing loss. The Veteran failed to provide consistent responses to any tonal stimuli. There were no word discrimination scores available for the left ear. A second September 2016 VA audiology examiner found that for the validity of puretone test results, the test results were not valid for rating purposes (not indicative of organic hearing loss). The VA examiner reasoned that despite repeated instructions and encouragement, the Veteran gave "suprathreshold" responses and test reliability. His response to speech in the right ear was normal, yet he gave severe pure tone thresholds. His crossover should have occurred into the left ear with speech due to severe asymmetry, yet it did not. This test cannot be used for rating purposes the VA examiner noted. The Veteran's responses to speech testing were normal for the right ear. Because of this, the Veteran should have responded to unmasked speech in his normal right ear when speech was presented in the left ear at 100 dB without masking in the right. This is considered crossover and should occur when the stimulus to the bad ear is greater than 40 dB higher than the hearing threshold in the good ear. This is a distinct indication of poor test reliability and should be considered as evidence that the Veteran was not responding to stimulus that was audible. In addition, the Veteran's pure tone thresholds were in no way consistent with his speech responses (SRT and speech discrimination). The Veteran was given ample test instruction and advised of the importance of accurate and reliable test results. Nonetheless, speech discrimination could not be obtained in the left ear as the Veteran did not respond to speech at the limits of the audiometer. This VA examiner also assessed that the use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The Federal Circuit has held that both the competence of a VA examiner and the adequacy of a VA examination and opinion are to be assumed unless challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). Neither the Veteran nor his representative has challenged the adequacy of the above VA audiology examinations. Consequently, from May 12, 1978 to the present, the Board concludes that an initial 10 percent rating, but no greater, is warranted for the Veteran's left ear hearing loss disability. 38 C.F.R. § 4.3. Simply stated, on this record, the audiometric results do not provide a basis to grant a rating higher than 10 percent for the left ear. In making this determination, when appropriate, the Board has considered both the "old" and "new" rating criteria for hearing loss (the rating criteria both prior to and after December 18, 1987). Aside from the April 1978 STR audiogram and the June 2010 VA QTC audiology examination, given the general lack of objective audiology testing of record from May 12, 1978 to the present, neither set of rating criteria can provide the Veteran with a rating above 10 percent for his left ear hearing loss. C. Extraschedular Consideration As the Court has explained in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry." If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. See also 38 C.F.R. § 3.321(b)(1). Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). At the outset, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), to clarify that an extraschedular rating is no longer available based on the combined effect of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (December 8, 2017). The final rule is effective January 8, 2018, and applies to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA on January 8, 2018. Therefore, effective January 8, 2018, the Board no longer has to include a discussion of combined effects in any extraschedular analysis. This rule effectively negates the previous holding of Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), in which the Federal Circuit had held that VA must consider the need for extraschedular review by evaluating the collective impact of two or more service-connected disabilities, in addition to evaluating the effect of a single service-connected disability. Therefore, effective January 8, 2018, VA has amended 3.321(b)(1) to explain that that an extraschedular analysis need only apply to a single disability, rather than upon consideration of multiple service-connected disabilities as the Federal Circuit previously held in Johnson. Accordingly, the Board is considering whether an extraschedular referral is warranted only on an individual basis for the Veteran's left ear hearing loss disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In discussing the first element of Thun on whether any unusual symptoms reported by the Veteran are contemplated by the rating criteria, with regard to the Veteran's left ear hearing loss disability, the Board finds that all of the Veteran's left ear hearing loss symptomatology is fully addressed by the rating criteria under which it is rated - Diagnostic Code 6100. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The same analysis would apply to the "old" pre-December 18, 1987 rating criteria for hearing impairment. In fact, in Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017), the Court recently held that the schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. In other words, VA's schedular rating criteria for hearing loss already contemplate the specific functional effects of hearing impairment. Id. Accordingly, the Board finds that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in VA's Rating Schedule. In Rossy v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1794 (Dec. 13, 2017), the Court relied on Doucette and affirmed the denial of an extraschedular referral for hearing loss. The Court reiterated that, absent other factors, the complaint of difficulty understanding conversations in various contexts was "squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria." Here, as a lay person, throughout the course of the entire appeal, the Veteran has claimed that his left ear hearing loss is getting worse and believes that he is entitled to initial ratings higher than 0 percent and 10 percent throughout the entire appeal period. In particular, he asserts that he is entitled to a total 100 percent rating for his left ear hearing loss, effective from May 12, 1978, the day after discharge from service. He says it is unfair that for over 30 years post-service he did not receive a compensable rating for his left ear hearing loss. He says he is completely deaf in the left ear. He asserts that at his job at Farm Fresh, he cannot hear his supervisor or a page request on the speakers or on the telephones. This impacts his performance at work. His hearing loss also makes his boss angry. He finds this embarrassing - sometimes he cries. He has to read peoples lips. He misses parts of conversations. When a person speaks to him, the Veteran has to turn his body towards the right, because his service-connected left ear is deaf. He finds it difficult to adapt to this handicap. He also cannot hear a police officer when he is stopped at a traffic stop. Thus, his hearing loss impacts his ability to work and his activities of daily living. See August 2014 Central Office Hearing testimony; May 2010 VA QTC worksheet; May 2013 NOD; March 2014 VA Form 9; October 2015 Veteran statement; September 2016 VA QTC audiology examination; second September 2016 VA audiology examination. However, in light of the above holdings of Doucette and Rossy, the Veteran's description of his hearing loss symptomatology is contemplated by the rating criteria. The Veteran does not report any unusual symptomatology that would be outside the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria for hearing loss. There is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration, for the Veteran's service-connected left ear hearing loss. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran's hearing loss symptomatology is fully addressed by the rating criteria under which it is rated. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria for hearing loss reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing, understanding speech, and occasional embarrassment. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular noncompensable evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. In short, the evidence does not show anything unique or unusual about the Veteran's left ear hearing loss that would render the schedular criteria inadequate. There are no outlier symptoms. In any event, even if Thun element 1 were satisfied, the Veteran's case would still not be eligible for referral because the Board finds that Thun element 2 is not satisfied - that is, the Board finds no probative evidence the Veteran's left ear hearing loss disability causes "marked" interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). As such, the second element of Thun is not met here. In this regard, "some" interference with employment is already contemplated by the 10 percent disability rating that is assigned for the Veteran's left ear hearing loss disability. However, this is not tantamount to concluding there has been "marked" interference with his employment - again, meaning above and beyond that contemplated by the assigned 10 percent rating for hearing loss. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired.). The Veteran is currently 59 years of age. The Veteran testified at the August 2014 Central Office Hearing that he can still work when only considering his hearing loss, but that the addition of his nonservice-connected arthritis is what prevents him from continuing to work at Farm Fresh. In any event, no evidence of record demonstrates "marked" interference with employment due to left ear hearing loss. See 38 C.F.R. § 3.321(b)(1). There is no allegation or evidence of record that his service-connected left ear hearing loss cut his career short or caused him to miss time from work. In addition, there is no probative evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations due to the Veteran's service-connected left ear hearing loss, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. 38 C.F.R. § 3.321(b)(1); VAOPGCPREC 6-96. His post-service evaluation and treatment for his left ear hearing loss has been solely on an outpatient basis, and he has not been frequently hospitalized due to his left ear hearing loss. (He says he was hospitalized one time in 2016 due to his tinnitus, but there is no assertion that his left ear hearing loss caused this particular hospitalization). Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left ear hearing loss disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An effective date of May 25, 2010, but no earlier, for the award of secondary service connection for tinnitus, is granted. Effective May 12, 1978, an initial 10 percent rating, but no higher, for left ear hearing loss disability, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs