Citation Nr: 0002677 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-10 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a compensable evaluation on an extraschedular basis for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active service from July 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. In a January 1999 decision, the Board denied a compensable rating on a schedular basis for bilateral hearing loss and remanded the issue for consideration on an extraschedular basis. To the extent possible, the RO attempted to develop that claim. The case is again before the Board for final appellate review. FINDINGS OF FACT 1. In a February 1999 letter, the RO provided the veteran with the opportunity to present evidence regarding the claim for an extraschedular rating. The veteran did not respond to this request. 2. The competent and probative evidence in this case fails to show that the veteran's bilateral hearing loss causes marked interference with his employment, or requires frequent periods of hospitalization, or otherwise results in an unusual disability picture rendering impractical the use of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the 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 civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. 38 C.F.R. § 3.321(a) (1999). In the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)(1999). Factual Background By way of history, the service medical records reflect that the veteran's hearing loss began in service. A rating decision dated in August 1977 granted service connection for bilateral hearing loss at a noncompensable rate. In September 1996, the veteran requested an increased rating for his hearing loss. In a November 1996 statement, the veteran indicated that a factory would not hire him to work because he has a hearing loss. During a VA psychiatric examination dated in November 1996, the veteran stated that he completed high school. Following discharge from service, the veteran reported that he had trouble finding a job. He had worked for the railroad for 6 months, but he had trouble with authority. He also reported working at a lumberyard, a convenience story and a plumbing company. The veteran indicated that he had trouble getting along with others. He otherwise worked at one oil company for about 5 years. His work at another oil company lasted around 9 years. The veteran subsequently began self- employment digging graves and water lines. The veteran stated that he was quite content with that employment. Past medical history was noted to include hearing loss. The Axis I diagnoses were combat related post-traumatic stress disorder, severe and alcohol abuse. The Axis III diagnosis was bilateral hearing loss. At the time of a private audiologic examination in December 1996, the veteran reported no recent history of medical problems related to his ears. Hearing aids for both ears were recommended. In a January 1997 statement, the veteran indicated that his hearing aids were problematic when there was background noise, such as a crowd or music while someone was speaking. In his March 1997 substantive appeal, the veteran stated that his understanding of speech became more impaired when there was background noise. He reported that this resulted in loss of employment and civic duties, such as jury duty. The veteran was afforded a VA audiologic examination in January 1998. He stated that he worked in maintenance jobs and as a grave digger as a civilian, and that he was required to use hearing protection in his civilian jobs. He wore 2 hearing aids, but he said that they did not help him with background noise. He complained of very significant speech understanding problems in background noise. In a February 1999 letter from the RO, the veteran was asked to submit any evidence to support a claim for an extraschedular evaluation, including that there was marked interference with employment or periods of frequent hospitalization. The veteran did not respond to this request. Analysis In light of the contentions made by the veteran during the pendency of his claim for a compensable schedular rating for hearing loss, the Board, in January 1999, remanded the matter of a higher rating on an extraschedular basis for further development. However, the veteran did not respond to the RO's request for any supporting evidence that his disability presented an exceptional disability picture that rendered the schedular criteria insufficient. The duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Id. When the veteran did not respond to the request for evidence, the RO issued a supplemental statement of the case in May 1999, in which the need for evidence was further explained. All communications were not returned as undeliverable. In the absence of the receipt of any additional evidence, the RO chose not to refer the matter to VA's Compensation and Pension Service for extraschedular consideration. The Board also does not find that referral for consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. The evidence in this case fails to show that the veteran's hearing loss, in and of itself, now causes or has in the past caused marked interference with his employment, or that such has in the past or now requires frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. In fact, competent medical records reflect that no surgical intervention is indicated and that the veteran has not been hospitalized due to his hearing loss. The Board recognizes the veteran's complaints of problems hearing with background noise. Additionally, the Axis III diagnosis on the 1996 psychiatric examination indicates that this medical condition could play a role in understanding or managing his mental disorder. However, the psychiatric examination report or other examination report or treatment record does not demonstrate any competent opinion that the veteran is markedly affected in his employment due to his hearing loss. During the VA psychiatric examination in 1996, the veteran reported engaging in a number of types of employment, but his reason for terminating employment was not listed as being related to hearing problems. Notably, 38 C.F.R. § 3.321(b)(1) provides for higher, extraschedular ratings in exceptional circumstances whereas the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." What the veteran has not shown in this case is that his hearing loss, in and of itself, results in unusual disability or impairment that renders the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER A compensable evaluation for hearing loss on an extraschedular basis is denied. M. Sabulsky Member, Board of Veterans' Appeals