Citation Nr: 20021203 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 15-42 788A DATE: March 24, 2020 ORDER Entitlement to an initial, compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left-hand cyst is remanded. Entitlement to an initial, compensable rating for hernia scar associated with umbilical hernia is remanded. FINDING OF FACT The Veteran has had no worse than Level I hearing loss in both ears. CONCLUSION OF LAW The criteria for an initial, compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1970 to April 1977, from August 1977 to August 1981 and April 1982 to September 1982. He additionally served in the United States Navy from October 1982 to February 1988 and September 1988 to September 1988. This matter comes before the Board from a September 2013 rating decision. Increased Rating 1. Entitlement to an initial, compensable rating for bilateral hearing loss Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, the present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a higher rating because he has difficulty understanding conversations. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An August 2013 VA examination reveals that the Veteran reported difficulty understanding people in communication situations and needs to have them repeat in order to understand what is being communicated. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT [25] [30] [30] [45] [32] [92] LEFT [25] [30] [45] [70] [42] [92] A July 2015 private audiological examination revealed pure tone thresholds, in decibels, as follows: [July 2015] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT [5] [0] [50] [65] [30] [N/A] LEFT [5] [5] [45] [60] [28.75] [N/A] An August 2015 private audiological examination revealed pure tone thresholds, in decibels, as follows: [August 2015] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT [10] [5] [50] [60] [31.25] [N/A] LEFT [10] [10] [50] [65] [33.75] [N/A] Private audiology reports like those above, or the ones dated prior to the current claim that submitted by the Veteran, may be used as evidence if all the required information is present. The Board can convert findings to numerical charts. Without Maryland CNC speech recognition scores; however, the private audiological examinations cannot be used for rating purposes. Therefore, the private audiological examinations from July 2015 and August 2015 cannot be used for rating purposes. The July 2015 and August 2015 examination do not indicate an average worsening of the Veteran’s bilateral hearing loss in decibels since the August 2013 VA examination. Additionally, the record does not indicate that the Veteran has reported worsening since the August 2013 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). As such, a remand for a new VA examination is not warranted. 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. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran has difficulty understanding conversations. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, 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). REASONS FOR REMAND 1. Entitlement to service connection for a left-hand cyst is remanded. The Veteran contends that his current left-hand condition is related to the motions involved in working on aircraft, which the Veteran believes has caused his current hand/wrist pain. Medical records from June 2008 indicate the Veteran has Dupuytren’s Discase of the left hand. The Veteran has asserted that his injury is due to working on aircrafts while in the service; there is a March 1985 notation of a left forearm injury during service and the Veteran alleges that the associated pain inhibits his ability to drive and write. To date no VA examiner has opined as to the nature or etiology of the Veteran’s current left-hand/wrist disability. Accordingly, there is an indication that the currently diagnosed disability may be related to service, but there is insufficient competent evidence in the file to decide the claim. A VA examination is warranted to determine the etiology of the Veteran’s left hand/wrist conditon. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to an initial compensable rating for hernia scar associated with umbilical hernia. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hernia scar. The Board notes that although the Veteran received VA examinations in August 2013, one for the hernia and one for scars. Although the hernia VA examiner did note that the hernia scar was barely visible, the examiner did not address whether it was painful or other possible rating aspects. The VA examiner for scars did not note or examine the hernia scar. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic left hand/wrist disability. After reviewing the claims file and examining the Veteran, the examiner should address the following: (a.) Identify/diagnose any chronic left hand/wrist disorder that presently exists or that has existed during the appeal period. (b.) Opine whether it is at least as likely as not that the Veteran’s left hand/wrist disability had its onset in service or is related to active service, to include the notations a forearm injury in-service and the Veteran’s contentions that his disability is related to working on aircrafts. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hernia scar. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A. LINDIO Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.