Citation Nr: 21011410 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-24 861A DATE: March 1, 2021 THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to February 4, 2019, and 30 percent from February 4, 2019 to November 19, 2020, and 40 percent from November 19, 2020 for a bilateral hearing loss disability, to include consideration of an extraschedular rating. ORDER Entitlement to a disability rating in excess of 10 percent prior to February 4, 2019, and 30 percent from February 4, 2019 to January 29, 2020 for a bilateral hearing loss disability, is denied. Entitlement to a disability rating of 40 percent, but no higher, for a bilateral hearing loss disability for the period from January 29, 2020 to November 19, 2020, is granted. Entitlement to a disability rating in excess of 40 percent from November 19, 2020, is denied. An extraschedular rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period prior to February 4, 2019, audiometric evaluations did not show a level of hearing loss disability worse than Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. 2. For the period from February 4, 2019 to January 29, 2020, audiometric evaluations did not show a level of hearing loss disability worse than Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. 3. From January 29, 2020, audiometric evaluations show a level of hearing loss disability of Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear, but no worse. 4. The Veteran's bilateral hearing loss does not result in impairment of earning capacity such as to warrant an extraschedular rating to accord justice. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent, for the period prior to February 4, 2019 for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 6100 (2020). 2. The criteria for a disability rating in excess of 30 percent, for the period from February 4, 2019 to January 29, 2020 for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 6100 (2020). 3. The criteria for a disability rating of 40 percent, but no higher, from January 29, 2020 for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 6100 (2020). 4. The criteria for a disability rating in excess of 40 percent from November 19, 2020 for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 6100 (2020). 5. The criteria for an extraschedular rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to March 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for a bilateral hearing loss disability and assigned an initial 10 percent disability rating, effective from January 10, 2012. The Veteran disagreed with the initial 10 percent disability rating assigned and this appeal ensued. In a March 2013 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent disability rating, also effective from January 10, 2012. The Veteran did not appeal that determination. In August 2017, the Veteran testified at a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. This matter was before the Board in February 2018 at which point it was remanded in order to afford the Veteran a new VA audiological examination. Finally, the Board last remanded the matter in an August 2020 decision in order to obtain a missing January 2020 private audiological examination and to afford the Veteran a new VA audiological examination. The Veteran was afforded such a VA examination and the private audiological examination was obtained upon remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Entitlement to a disability rating in excess of 10 percent prior to February 4, 2019, and 30 percent from February 4, 2019 to November 18, 2020, and 40 percent from November 19, 2020 for a bilateral hearing loss disability, to include consideration of an extraschedular rating. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As a preliminary matter, the Veteran has been service connected for a bilateral hearing loss disability since January 10, 2012 and was assigned an initial disability rating of 10 percent in a January 2013 rating decision. In a March 2020 rating decision, the RO granted a rating of 30 percent for the period from February 4, 2019. In a subsequent November 2020 rating decision, the RO increased the rating to 40 percent, effective November 19, 2020 for the Veteran's service-connected bilateral hearing loss disability. A rating for bilateral hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85 (2020). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The period prior to February 4, 2019 The Board finds that there are no objective clinical findings to warrant a disability rating in excess of 10 percent for the period prior to February 4, 2019. The Veteran afforded a VA audiological examination in March 2012. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 60 75 85 LEFT 30 40 55 70 80 Threshold averages were 65 decibels in the right ear and 61 (rounded down from 61.25) decibels in the left ear. Speech audiometry results using the Maryland CNC were 68 percent for the right ear and 80 percent for the left ear. The Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level IV hearing acuity in the left ear. These results were consistent with a 10 percent disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. As was indicated earlier in this decision, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The Board acknowledges that at the August 2017 Board hearing, the Veteran testified that his hearing aids actually make his hearing worse because they amplify his tinnitus, and that he is better off without them. The Board has also taken into account that the Veteran testified that he was concerned about his job because it requires him to talk to on his phone, but he cannot hear the person on the other end of the phone line unless there is absolutely no background noise, which is not always possible. Finally, the Board notes that the Veteran testified that his bosses get aggravated with him because he has such difficulty hearing on the telephone, and this is a part of his job. The Board does not discount the difficulties the Veteran has with his hearing acuity, however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The evidence of record indicates that the Veteran’s hearing loss is consistent with his original 10 percent rating for the entire period prior to February 4, 2019. See 38 C.F.R. § 4.85. In addition, none of the audiometric results reported during the period prior to February 4, 2019 meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86 (a)(b). All potentially applicable codes have been considered, and there is no basis to assign a compensable disability rating for the period prior to February 4, 2019 for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board finds that a disability rating in excess of 10 percent for the period prior to February 4, 2019 is not warranted. The Period from February 4, 2019 to January 29, 2020 The Veteran afforded a VA audiological examination in February 2019. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 60 75 80 LEFT 50 50 60 75 80 Threshold averages were 66 (rounded down from 66.25) decibels in the right ear and 66 (rounded down from 66.25) decibels in the left ear. Speech audiometry results using the Maryland CNC were 72 percent for the right ear and 72 percent for the left ear. The Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level IV hearing acuity in the left ear. These results were consistent with a 30 percent disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. Once again, the Board has considered the Veteran’s contentions at the August 2017 Board hearing, as detailed above. The Board does not discount the difficulties the Veteran has with his hearing acuity, however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The evidence of record indicates that the Veteran’s hearing loss is consistent with his 30 percent rating for the entire period from February 4, 2019 to January 29, 2020. See 38 C.F.R. § 4.85. In addition, none of the audiometric results reported during this period meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86 (a)(b). All potentially applicable codes have been considered, and there is no basis to assign a disability rating in excess of 30 percent for the period from February 4, 2019 to January 29, 2020 for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board finds that a disability rating in excess of 30 percent for the period from February 4, 2019 to January 29, 2020 is not warranted. The Period from January 29, 2020 The Veteran submitted a private audiological examination dated January 29, 2020. While difficult to read, the examination appeared to show the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 50 65 75 90 105 LEFT 55 60 75 80 100 Threshold averages were 84 (rounded up from 83.75) decibels in the right ear and 79 (rounded up from 78.75) decibels in the left ear. Speech audiometry results using the Maryland CNC were not recorded. However, as the Veteran’s pure tone thresholds are greater than 55 for each of the values between 1000 and 4000 in both ears, evaluation under Table VIA is appropriate. 38 C.F.R. § 4.86 (a). The Veteran’s hearing impairment was manifested by Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear. The Board notes that these results are consistent with a 40 percent disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. Therefore, the Board finds that the Veteran is entitled to an increased disability rating of 40 percent, but no higher, for his bilateral hearing loss disability effective January 29, 2020. See Fenderson, 12 Vet. App. 119, 126 (1999). The Veteran afforded a VA audiological examination in November 2020. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 85 90 100 LEFT 55 65 80 85 95 Threshold averages were 85 decibels in the right ear and 81 (rounded down from 81.25) decibels in the left ear. Speech audiometry results using the Maryland CNC were 70 percent for the right ear and 66 percent for the left ear. The Veteran’s hearing impairment was manifested by Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear. These results were consistent with a noncompensable disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. In making this determination the Board has applied the provisions of 38 C.F.R. § 4.86 (a). While the Board finds that the Veteran is entitled to a 40 percent disability rating for his bilateral hearing disability the audiological data does not support a higher disability rating. Once again, the Board has considered the Veteran’s contentions at the August 2017 Board hearing, as detailed above. The Board does not discount the difficulties the Veteran has with his hearing acuity, however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The evidence of record indicates that the Veteran’s hearing loss is consistent with a 40 percent rating for the entire period from January 29, 2020. See 38 C.F.R. § 4.85. All potentially applicable codes have been considered, and there is no basis to assign a disability rating in excess of 40 percent for the period from January 29, 2020 for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the while Board finds that a disability rating in of 40 percent is warranted as of January 29, 2020, the day of the private audiological examination, a disability rating in excess of 40 percent for the period from November 19, 2020 is not warranted. Extraschedular Consideration The Board incorporates the above sections by reference. In its February 2018 decision, the Board found that the August 2017 testimony noted above had raised the issue of entitlement to an extraschedular disability rating for the service-connected bilateral hearing loss and remanded so that they RO could forward the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to address whether the assignment of an extraschedular rating was warranted. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Martinak, the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Under 38 C.F.R. § 3.321(b)(1), an extraschedular rating may be awarded. The regulation in question provides that 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 evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, upon field station submission, is authorized to approve an extraschedular evaluation 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. Id. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extraschedular provisions of 38 C.F.R. § 3.321(b)(1). The Court held that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Court has held that 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. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). At the August 2017 Board hearing, the Veteran testified that his hearing loss was worse than described by the schedular rating. The Veteran also testified that his hearing aids actually make his hearing worse because they amplify his tinnitus, and that he is better off without them. Finally, the Veteran testified that he was concerned about his job because it requires him to talk to on his phone, but he cannot hear the person on the other end of the phone line unless there is absolutely no background noise, which is not always possible. He testified that his bosses get aggravated with him because he has such difficulty hearing on the telephone, and this is a part of his job. The evidence reveals the Veteran's bilateral hearing loss considerably affected his occupational activities. The Veteran reported that his hearing loss interfered with his ability to do his job and caused communication problems between him and his coworkers and supervisors. In March 2020 Director of the Compensation and Pension Service denied entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1), finding that there was no evidence of record that there was any impairment of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. In March 2020, the AOJ re-adjudicated the claim and also determined that an extraschedular rating was not warranted before returning the case to the Board. Essentially, the Director determined that none of the three Thun elements had been met. The Court stated in Anderson that, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal. See 22 Vet. App. at 427. The Court also stated that it follows that the Board has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate under all three elements set forth in Thun. See Anderson, 22 Vet. App. at 428; but cf. Thun v. Shinseki, 572 F.3d 1366, 1370-71 (Fed. Cir. 2009) (indicating that only the Under Secretary and the Director have the authority to award an extraschedular rating). As noted previously, the provisions of 38 C.F.R. § 3.321(b) allow that an extraschedular rating will be assigned so as to "accord justice." Here, VA has taken the extraordinary step of referring the claim to the Director who determined that an extraschedular rating is not warranted for the Veteran's bilateral hearing loss. The Director has expertise in determining the average earning capacity impairment due exclusively to a service-connected disability. This makes the Director uniquely suited to determine what extraschedular rating level is warranted. See Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring). On the other hand, the RO and the Board have expertise in applying the facts of each respective case to the rating schedule. Id. There is relatively little guidance as to how to determine whether and at what level to grant an extraschedular rating. In Kuppamala v. McDonald, 27 Vet. App. 447 (2015), the Court held that there is a judicially manageable standard limiting the Secretary's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service-connected disability or disabilities. Id. at 453-5. As the Court noted in Kuppamala, "average impairment in earning capacity is not a clearly defined standard." Id. at 453. In this case, the Board agrees with the Director's expert opinion that concluded that an extraschedular rating is not warranted for the Veteran's service-connected bilateral hearing loss. The Board can find no basis in the evidence of record for assigning an extraschedular rating to accord justice. In this case, justice does not equate to the ability to perform all occupational positions. The Board sympathizes with the hearing difficulty the Veteran experiences. However, it is bound by the controlling law and regulations. Entitlement to an extraschedular rating for bilateral hearing loss is not warranted. See 38 C.F.R. § 3.321(b)(1). In addressing this aspect of the claim, the Board notes that there has recently been a change in law in the extraschedular arena. See, e.g., Chisem v. Gober, 10 Vet. App. 526, 528 (1997). First, in Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017), it was noted that the Veteran's complaints in the present case of difficulty hearing are precisely the effects that VA's audiometric tests are designed to measure. Thus, those effects are contemplated by the schedular rating criteria. Next, to the extent Doucette identified other symptoms that would not be contemplated by Diagnostic Code 6100, the Court has since impliedly overruled Doucette in that such symptoms may warrant a separate schedular rating or raise a secondary claim. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Along these lines, there is no evidence of dizziness, vertigo, ear pain, or any other symptoms in that class of functional effects considered to be existing outside Diagnostic Code 6100 but within the rating schedule that are related to the Veteran's hearing loss. Considering the above in light of the governing legal authority, the Board finds preponderance of the evidence weighs against the award of an extraschedular rating for bilateral hearing loss pursuant to the provisions of 38 C.F.R. §§ 3.321(b), 4.1. As noted, the Veteran's hearing loss disability is manifested by difficulty hearing and understanding speech, which is precisely the type of impairment that the rating criteria is intended to measure. The fact that the Veteran's hearing loss impacts the ordinary conditions of daily life, including his ability to work, (to the extent that this resulted in a loss of earning capacity) is contemplated in the schedule of ratings and is not a proper consideration for an extraschedular rating. Although a particular diagnostic code may provide for evaluations of a disability in terms of objective clinical data rather than in terms of symptoms or functional impairment, as is the case with hearing loss disabilities, the purpose of the schedular ratings with their corresponding criteria is necessarily to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly regarding how they affect earning capacity. See 38 C.F.R. §§ 4.1, 4.10, 4.21. Thus, the Veteran's difficulty hearing and the consequences that may flow from this difficulty such as decreased hearing and difficulty understanding speech, are necessarily the type of symptomatology and functional impairment contemplated by the rating criteria for hearing loss. Again, as noted in Thun, the rating criteria are averages and need not account for each individual circumstance to be adequate for evaluation purposes. In sum, a comparison of the Veteran's hearing loss and associated functional impairment and the schedular criteria does not show 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). The Veteran's experiences are corresponding with the average impairment in earning capacity represented by his current ratings for hearing loss. The Board has considered the lay evidence of record when adjudicating this claim, including the statements of the Veteran. The Veteran is competent to report difficulty with his hearing. However, the statements reinforce the conclusion that the Veteran's disability pattern was not exceptional or unusual. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's main complaint was reduced hearing acuity and clarity, which is contemplated by the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). (Continued on next page.) As a result, the Board finds that the evidence is against a finding that the hearing loss disability caused average impairment of earning capacity beyond the disability ratings currently in effect. Therefore, the Board concludes that entitlement to an extraschedular rating for bilateral hearing loss is not warranted and the appeal must be denied. See 38 C.F.R. § 3.321(b)(1). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.