Citation Nr: 1327328 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 04-03 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hearing loss of the left ear. 2. Entitlement to an initial compensable evaluation for hearing loss of the right ear. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded these issues in October 2008 and August 2009 to afford the Veteran a hearing before a member of the Board. In February 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In March 2011 and November 2012, the claims were again remanded for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's service entrance examination reflects that he had hearing loss in the left ear prior to entry into service. 2. The competent and credible evidence fails to demonstrate that the Veteran's left ear hearing loss was aggravated in service. 3. Audiological evaluations reflect that the Veteran's service-connected right ear hearing loss has been manifested by no worse than Level V hearing impairment in the right ear. CONCLUSIONS OF LAW 1. Left ear hearing loss was not incurred in or aggravated by active duty service and service incurrence or aggravation may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for a compensable initial rating for service-connected right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.150, 3.321, 3.385, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board finds that with regard to the Veteran's claims the letters dated in June 2003, May 2007, and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 letter provided this notice to the Veteran. With regard to the issue of an initial compensable rating for right ear hearing loss, the Veteran's claim for increased rating is a "downstream" issue. Where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that the notice was intended to serve has been fulfilled. The Board observes that the June 2003 letter was sent to the Veteran prior to the October 2003 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess, however, was sent after the initial adjudication of the Veteran's claim. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the March 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2009), 38 C.F.R. § 3.159(b) (2012), and Dingess, supra, and after the notice was provided the case was readjudicated and a September 2007 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment, private treatment records, and VA treatment records are associated with the claims folder. In October 2008, August 2009, March 2011, and November 2012, the Board remanded the issues to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the above stated issues were previously remanded in order for a previous private examination to be interpreted, the results of a previous VA examination to be added to the file, and for the Veteran to be afforded a new VA examination. The requested development having been completed, the issues now return to the Board for appellate review. VA examinations were obtained in June 2002, March 2007, July 2007, April 2011, to include an addendum opinion, and April 2013. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2011). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, as they collectively consider all of the pertinent evidence of record, and provide a complete rationale for evaluations provided. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2012). In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the February 2010 Travel Board hearing, the undersigned Veterans Law Judge and representative for the Veteran engaged in colloquies with the Veteran as to substantiation of the claims. The Veteran was asked about and provided testimony regarding in-service noise exposure, post-service noise exposure, current hearing condition, available medical records, and a connection between his in-service noise exposure and current hearing condition. Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's February 2010 hearing or contended that the Veteran does not fully understand the issue or the evidence that is required to substantiate his claims. The Board finds that any error in notice provided during the Veteran's hearing constitutes harmless error. See 38 C.F.R. § 20.1102. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its June 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis I. Service Connection-Hearing Loss, Left Ear The Veteran seeks service connection for left ear hearing loss claimed as the result of in-service noise exposure during his active duty from 1963 to 1966. Although his service records reflect that the Veteran served in the Army as a general supply specialist, the preponderance of the evidence is against the claim and the appeal will be denied. 38 C.F.R. § 3.102. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). If a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if an organic disease of the nervous system (sensorineural hearing loss) became manifest to a degree of 10 percent or more within one year from the date of the Veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated therein. See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2012). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder."). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (2012); see Wagner, supra. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) ("[E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C.[A.] § 1153 unless the underlying condition is worsened."); Maxson v. West, 12 Vet. App. 453, 458 (1999) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff'd 230 F.3d 1330 (Fed. Cir. 2000). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C.A. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. See Wagner, supra; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches."). Once the presumption of aggravation under section 1153 attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306(b) For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988). The Veteran contends that he suffered acoustic trauma during his military service. He specifically contends that he was exposed to loud noises caused by firearms, machine guns, mortars, the firing range and heavy artillery. The Veteran's DD-214 notes that his military occupational specialty was general supply specialist. The Veteran's service treatment records note that he had left ear hearing loss upon entry into service. His September 1963 entrance examination noted that he met the minimum requirements for hearing loss with an auditory threshold of 40 (45) at the 4000 Hertz (Hz) frequency. His July 1966 separation examination noted that he exhibited an auditory threshold of 45 (50) at the 4000 Hz frequency. The Board notes that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Board notes that the Veteran had a pre-existing hearing loss in his left ear. The question is, therefore, whether the Veteran's pre-existing hearing loss was aggravated by his active duty service. The Board notes that the Veteran met the requirements for a left ear hearing loss disability as noted in the March 2003 private audiological examination report and the March 2007 VA examination report. In this regard the Veteran exhibited an auditory threshold of 40 or more in at least one frequency on both examinations. As such, the Board finds that the Veteran has a current diagnosis as required by 38 C.F.R. § 3.303. At his June 2002 VA examination, the Veteran stated that he was repeatedly exposed to noise from a variety of weapons and heavy artillery while in the military. He stated he was not provided with any hearing protection. The Veteran reported that he was also exposed to noise post-service, both recreationally and occupationally. Recreationally he was exposed to firearms, including machine guns, while using a firing range. He stated hearing protection was used. Occupationally he was exposed to factory noise, construction noise including jack hammers, machine shop noise, carpentry noise, tools, chainsaw, power lawn mower, farming equipment, weed eaters, and life and grass blowers. He reported that hearing protection was not used during occupational noise exposure. The June 2002 VA examiner, after diagnosing the Veteran with normal hearing in the left ear in frequencies 500 to 2000 Hz and mild sensorineural hearing loss from 3000 to 4000 Hz, opined that it was at least as likely as not that both military and civilian noise exposure were contributing factors to hearing loss. The examiner provided no opinion with regard to whether the Veteran's pre-existing left ear hearing loss was aggravated by service. Both the July 2007 and April 2011 VA examinations also diagnosed the Veteran with normal hearing in the left ear through the 2000 Hz frequency with mild sensorineural hearing loss above 2000 Hz. An addendum opinion to the April 2011 examination noted the Veteran pre-existing hearing loss in the left ear and stated that there was no significant shift in thresholds from the time of induction to the time of separation. In a March 2003 letter from his private audiologist it was noted that the Veteran's hearing loss was consistent with individuals who have been exposed to excessive noise with no hearing protection. The examiner offered no opinion with regard to specific etiology. Finally, the Veteran was afforded a VA examination in April 2013. The Veteran's claims file was reviewed. After a thorough examination the examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range from 500 Hz to 8000 Hz. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or the result of an event in military service. The examiner explained that a review of the claims file showed no significant change in hearing from enlistment to discharge. The examiner then noted that the Veteran's hearing loss pre-existed his service and was not aggravated beyond normal progression during his military service. The examiner again explained that there was no significant change in hearing from enlistment to discharge. Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this regard, the Board acknowledges that the Veteran is competent to report his symptoms of left ear hearing loss, and the Board accepts that he was exposed to noise during service. As a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Buchanan, supra.; Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau, supra.; Barr, supra. In Davidson, supra, the Federal Circuit stated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson reaffirms the holdings in Jandreau and Buchanan that VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. This does not mean, however, that lay evidence is necessarily always sufficient to identify a medical etiology, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence. The Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation. See Barr, supra; Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board notes that while the Veteran asserts that he currently has hearing loss that worsened in service, the lack of contemporaneous evidence in that regard diminishes the reliability of the statements. In this case, the Board has accorded more probative value to the April 2011 and April 2013 VA examiner's opinions that the Veteran's pre-existing left ear hearing loss was not aggravated during active duty service. The examiners provided a rationale for the opinion based on objective findings and reliable principles. In summary, the competent and probative opinion establishes that the evidence does not provide a basis upon which to link the Veteran's hearing loss disability to service. In consideration of all the above, the Board finds that while the Veteran does have a current diagnosis of left ear hearing loss, according to 38 C.F.R. § 3.385, there is no probative medical evidence linking the Veteran's current diagnosis of left ear hearing loss with his active duty service and no probative medical evidence that his pre-existing left ear hearing loss was aggravated by service. As such, the preponderance of the evidence is against the Veteran's claim and service connection for left ear hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Initial Rating-Hearing Loss, Right Ear Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's service-connected right ear hearing loss. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where there has been a disagreement with an initially assigned disability evaluation, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service-connected right ear hearing loss. See also, Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86 (2012), Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2012). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). The provisions of 38 C.F.R. § 4.86(b) provide that, when the puretone threshold is 30 decibels or less at 1000-Hertz, and 70 decibels or more at 2000-Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b) (2012). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f) (2012). Furthermore, 38 C.F.R. § 3.383(a)(3) provides that, where the evidence demonstrates hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear, compensation is payable as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the Veteran's own willful misconduct. In determining if the service-connected ear has a hearing impairment of 10 percent or more the nonservice-connected ear must initially be given a value of Roman Numeral I. See 38 C.F.R. § 4.85(f). The service-connected ear must then either have a numeric value of either X or XI, as determined by either Table VI, or Table VIA, in order to considered as compensable. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII (combination of Level I and either Level X or Level XI results in a 10 percent rating). In the present case, the Veteran's service-connected right ear hearing loss is not evaluated as at least 10 percent disabling. As such, 38 C.F.R. § 3.383 is not applicable. Given this, the hearing acuity of his left ear must be considered normal for the purposes of evaluating the service-connected disability at issue. VAOPGCPREC 32-97, 62 Fed. Reg. 63,604 (July 1, 1997); see also Boyer v. West, 11 Vet. App. 477, 479-80 (1998), aff'd Boyer v. West, 210 F.3d 1351 (2000). Accordingly, a designation of Level I is assigned for the nonservice-connected left ear. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's service-connected right ear hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85 (2012), Diagnostic Code 6100. The Veteran contends that his hearing loss is more severe than the currently assigned noncompensable rating. During the period of appeal, the Veteran has been afforded multiple VA audiological examinations and one private examination. On the initial June 2002 VA audiological evaluation, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 45 70 LEFT 15 20 25 30 35 The average puretone threshold decibel loss for the right ear was 43. Speech audiometry (Maryland CNC) revealed speech recognition ability of 98 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level I hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). On the March 2003 private audiological evaluation, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 45 70 LEFT 20 15 25 30 40 The average puretone threshold decibel loss for the right ear was 43. Speech audiometry (Maryland CNC) revealed speech recognition ability of 92 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level I hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). On the March 2007 VA audiological evaluation, it is noted that an interpretation of the audiogram was not provided. In order to avoid further delay, the Board will interpret the examination in the most favorable light to the Veteran. The scores inside the parenthesis represent the most generous interpretation of the audiogram. The Veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35(40) 35(40) 45(50) 60(60) 75(80) LEFT 35(40) 30(30) 35(40) 45(50) 45(50) The average puretone threshold decibel loss for the right ear, considering the most generous interpretation to the Veteran, was 58. Speech audiometry (Maryland CNC) revealed speech recognition ability of 70 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level V hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). On the July 2007 VA audiological evaluation, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 50 65 LEFT 20 20 25 30 35 The average puretone threshold decibel loss for the right ear was 42. Speech audiometry (Maryland CNC) revealed speech recognition ability of 96 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level I hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). On the April 2011 VA audiological evaluation, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 50 65 LEFT 15 20 25 30 35 The average puretone threshold decibel loss for the right ear was 43. Speech audiometry (Maryland CNC) revealed speech recognition ability of 96 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level I hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). On the April 2013 VA audiological evaluation, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 50 65 LEFT 15 20 5 30 35 The average puretone threshold decibel loss for the right ear was 43. Speech audiometry (Maryland CNC) revealed speech recognition ability of 98 percent in the right ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than Level I hearing acuity in the right ear. Such designation, when combined with the assigned Level I hearing acuity in the left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board notes that the VA and private examinations more than adequately address the Veteran's current level of hearing loss as these examinations meet the necessary requirements under 38 C.F.R. § 4.85(a) (2012). Applying the findings of the examinations to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for right ear hearing loss have not been met. Considering that the Veteran's right ear manifests an average puretone threshold of at most 58db, with at worst a 70 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be no more than a Level V impairment. Such designation, when combined with the assigned Level I hearing acuity in the nonservice-connected left ear, equates to a noncompensable evaluation. See 38 C.F.R. § 4.85(f) (2012). As such, the more probative evidence fails to demonstrate a more severe hearing loss disability than is currently addressed by the Veteran's noncompensable disability rating. Therefore, the claim for entitlement to a compensable initial rating must be denied. The Board acknowledges the Veteran's statements that his hearing impairment has worsened. Regarding the Veteran's statements, the Board acknowledges that he is competent to give evidence about his experiences; i.e., he is competent to report that he is having greater trouble hearing. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Veteran is not competent to testify that his hearing has worsened to a level requiring a compensable evaluation under the Diagnostic Code 6100. The Board must rely upon competent medical evidence to determine the diagnosis or clinical features of a disease or disorder. The Board may not draw its own medical conclusions in reaching a decision. Colvin v. Derwinski, 1 Vet. App. 171 (1991). While the Veteran, as a lay person, is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or the clinical severity of a disability. Only a medical professional can provide evidence of diagnosis or clinical severity of a disease or disorder. In this regard, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's own subjective statements in support of his claim. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected right ear hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the fact remains, however, that the VA rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran's subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected right ear hearing loss disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned noncompensable disability rating under Diagnostic Codes 6100 contemplate his level of symptomatology. Specifically, the criteria account for the Veteran's current puretone thresholds and speech recognition ability. The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the U.S. Court of Appeals for Veterans Claims 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. Martinak, 21 Vet. App. at 455. According to the April 2013 VA examiner, the Veteran's hearing loss has no significant effects on the Veteran's ordinary conditions of daily life, including ability to work. However, the Veteran's hearing difficulties are adequately contemplated by the rating schedule. Notably, 38 C.F.R. §§ 4.85 adequately contemplates any functional loss due to hearing impairment. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against higher disability rating than the currently assigned noncompensable rating with regard to the Veteran's claim for entitlement to an initial rating for right ear hearing loss. ORDER Service connection for left ear hearing loss is denied. An initial compensable evaluation for right ear hearing loss is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs