Citation Nr: 20007704 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-00 221 DATE: January 30, 2020 ORDER Entitlement to a compensable evaluation for a left ear hearing loss disability, prior to February 28, 2018, and a compensable disability rating for a bilateral hearing loss disability thereafter is denied. REMANDED Entitlement to a compensable rating, prior to February 26, 2018, and in excess of 10 percent thereafter for a rectal fistula, to include entitlement to an earlier effective date for the grant of an increased rating is remanded. FINDINGS OF FACT 1. Prior to February 28, 2018, the Veteran’s service-connected left ear hearing loss disability was manifested by no more than a Level I hearing acuity. His left ear puretone thresholds at 2000 Hertz do not meet or exceed 70 decibels and his average left ear puretone thresholds do not average 55 decibels or more. 2. Service connection for right ear hearing loss disability was granted in a November 2018 rating decision effective February 28, 2018. 3. Beginning February 28, 2018, the Veteran’s service-connected bilateral hearing loss disability was manifested by no more than Level II hearing acuity in the left ear and Level I hearing acuity in the right ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable evaluation for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.383, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2018). 2. The criteria for a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.383, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1954 to November 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA). This case was most recently remanded in May 2018 for further development; it has since been re-assigned to the undersigned Veterans Law Judge. Pursuant to the May 2018 Board remand, the agency of original jurisdiction (AOJ) issued a Statement of the Case (SOC) addressing the issue of entitlement to an earlier effective date for service connection for a left ear hearing loss disability. However, a timely Form 9 was not filed by the Veteran or his representative within sixty days. Therefore, the issue of entitlement to an earlier effective date for service connection for a left ear hearing loss disability is not presently before the Board at this time. Increased Rating 1. Entitlement to a compensable evaluation for a left ear hearing loss disability, prior to February 28, 2018, and a compensable disability rating for a bilateral hearing loss disability thereafter is denied. The Veteran seeks a compensable disability rating for his service-connected left ear hearing loss disability. See August 2016 Notice of Disagreement. However, as the Board granted service connection for the Veteran’s right ear hearing loss disability in a May 2018 decision, the Board must evaluate the period from February 28, 2018, as a rating for a bilateral hearing loss disability. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, the Board finds that the disability picture has significantly changed due to the grant of service connection for the right ear hearing loss disability effective February 28, 2018, and thus two separate stages are applied. The basis of disability evaluation 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 (2018). Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII (2018). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. Entitlement to a compensable evaluation for a left ear hearing loss disability, prior to February 28, 2018, is denied. The Veteran was afforded a VA audiological evaluation in August 2015, puretone thresholds, in decibels, were as follows: HERTZ 08/2015 1000 2000 3000 4000 Average LEFT 20 30 40 50 35 Speech discrimination using the Maryland CNC Test revealed a score of 92 percent for the left ear. As the Veteran was only service-connected for his left ear hearing loss disability prior to February 28, 2018, for rating purposes, the Veteran’s right ear hearing loss will be assigned a hearing impairment of Level I. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. The Veteran’s statements, such as difficulty hearing, are competent evidence as to which he has personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) and the Board has considered the reported functional impairments and lay statements. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s left hearing loss disability has reached a compensable disability rating during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for entitlement to an increased rating for a left ear hearing loss disability, prior to February 28, 2018, is denied. Entitlement to a compensable evaluation for a bilateral hearing loss disability, from February 28, 2018, is denied. A February 2018 VA examination established entitlement to service connection for bilateral hearing loss. At the examination, the Veteran reported that “[m]ost of the time I cannot understand what people are saying. I just get to hear bits and pieces of what they are saying.” See February 2018 VA Examination. The Veteran’s, puretone thresholds, in decibels, were as follows: HERTZ 02/2018 1000 2000 3000 4000 Average RIGHT 20 20 35 50 31.25 LEFT 40 55 60 65 55 Speech discrimination using the Maryland CNC Test revealed a score of 84 percent bilaterally. The audiometric results correspond to a Level II numeric designation for the left ear and Level I in the right ear. The Level II and Level I numeric designations in the left and right ears, respectively, result in the assignment of a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII. The Veteran’s statements, such as difficulty hearing, are competent evidence as to which he has personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) and the Board has considered the reported functional impairments and lay statements. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s left hearing loss has reached a compensable disability rating during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for entitlement to an increased rating for a left ear hearing loss disability is denied. REASONS FOR REMAND Entitlement to a rating to a compensable rating, prior to February 26, 2018, and in excess of 10 percent thereafter for a rectal fistula, to include entitlement to an earlier effective date for the grant of an increased rating is remanded. The Veteran states that his service connected rectal fistula has worsened. Namely, the Veteran notes that his condition has flareups and that he must wear two pairs of underwear and a pad to catch the drainage. See August 2016 Correspondence. The Board’s May 2018 remand directed the VA examiner to inquire about and discuss the Veteran’s reported flare-ups, and the frequency, severity, and symptoms of such flareup. The examiner was also directed to discuss the Veteran’s reports that he must wear a pad for drainage. The May 2019 VA examination was inadequate in that the examiner failed to inquire with the Veteran as to his reported flare-ups, and the frequency, severity, and symptoms of such flareup. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board finds that its remand directive has not been substantially complied with and remand is necessary for a new examination. As the matter is remanded, the Veteran recently identified medical treatment provided by his employer for his service connected rectal fistula. See July 2019 Correspondence. Therefore, the AOJ should attempt to inquire with the Veteran as to any outstanding medical treatment records and obtain the requisite medical authorizations to obtain said records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from March 2019 to the present. All efforts to obtain the records should be clearly documented in the claim file and if the records are unavailable it should so be noted. 2. The AOJ should obtain, with the Veteran’s help, records of all private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified, to include treatment provided by his employer. All efforts to obtain the records should be clearly documented in the claim file and if the records are unavailable it should so be noted. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 3. After the above development in (1) and (2) above has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service connected rectal fistula. The examiner must inquire about and discuss the Veteran’s reported flare-ups and the frequency, severity, and symptoms of such flare-ups. The examiner must also discuss the Veteran’s reports that he must wear two pairs of underwear and a pad for drainage. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Lederman, 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.