Citation Nr: 20042359 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 14-41 494 DATE: June 23, 2020 ORDER A compensable rating for right 2nd (index) finger laceration prior to July 19, 2019 and a rating in excess of 10 percent for right 2nd (index) finger laceration from July 19, 2019 is denied. A compensable rating for right 3rd (long) finger laceration prior to July 19, 2019 and a rating in excess of 10 percent for right 3rd finger laceration from July 19, 2019 is denied. A compensable rating for right 4th (ring) finger laceration is denied. A compensable rating for laceration scars of the right 2nd, 3rd, and 4th fingers is denied. A 20 percent rating, but not higher, is granted for right hand peripheral neuropathy from April 1971 through July 18, 2019, subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 20 percent for right hand peripheral neuropathy from July 19, 2019 is denied. A compensable rating for rash of the scrotum is denied. A compensable rating for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Prior to July 19, 2019, the Veteran did not have painful motion of his right 2nd or 3rd finger or limitation of motion of either of them, with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; or extension limited by more than 30 degrees. 2. From July 19, 2019, the 10 percent ratings assigned for right 2nd and 3rd finger lacerations are the schedular maximum under Diagnostic Code 5229. 3. The noncompensable rating assigned for right 4th (ring) finger laceration is the schedular maximum under Diagnostic Code 5230. 4. The Veteran’s laceration scars of his right 2nd, 3rd, and 4th fingers are not tender, painful, or unstable. 5. From April 1971 through July 18, 2019, the Veteran had mild, but not moderate, incomplete paralysis of his right lower radicular group. 6. From July 19, 2019, the Veteran does not have moderate incomplete paralysis of his right lower radicular group. 7. The Veteran’s scrotum rash does not result in exfoliation, exudation, or itching, involving an exposed surface or extensive area; it does not affect at least 5 percent or his entire body or at least 5 percent of exposed areas; it does not require intermittent systemic therapy, including corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period; and it does not require constant or near constant systemic therapy including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppresive drugs required for a total duration of 6 weeks or more, over the past 12 month period. 8. Satisfactory audiometric data shows that the Veteran's current bilateral hearing loss disability warrants no more than a Roman numeral I for each ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right 2nd (index) finger laceration from June 1971 through July 18, 2019 have not been met; the criteria for a rating in excess of 10 percent from July 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, Diagnostic Code 5229. 2. The criteria for a compensable rating for right 3rd (long) finger laceration from June 1971 through July 18, 2019 have not been met; the criteria for a rating in excess of 10 percent from July 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, Diagnostic Code 5229. 3. A compensable rating may not be assigned for right 4th (ring) finger laceration under Diagnostic Code 5229. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, Diagnostic Code 5229. 4. The criteria for a compensable rating for laceration scars of the right 2nd, 3rd, and 4th fingers have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2002, 2019). 5. The criteria for a 20 percent rating, but not higher, for right hand neuropathy from June 1971 through July 18, 2019 are met; the criteria for a rating in excess of 20 percent from July 19, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8512. 6. The criteria for a compensable rating for rash of the scrotum have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7806 (2002, 2019). 7. The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, and Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1971. The Board thanks the Veteran for his service. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. 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 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that [t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. Ratings for right 2nd (index) and 3rd (long) finger lacerations The rating periods for these disabilities start with the date following the Veteran's June 1971 service discharge. The Veteran appeals for higher ratings for these disabilities. They are each rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5229 from June 1971 through July 18, 2019 and as 10 percent disabling from July 19, 2019. Under Diagnostic Code 5229, a maximum 10 percent rating is warranted for limitation of motion of the index or long finger, with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. The provisions of 38 C.F.R. §§ 4.40, 4.45, are also for consideration when the maximum schedular rating is not assigned. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). And 38 C.F.R. § 4.59 is for consideration as well. Based on the evidence, the Board concludes that prior to July 19, 2019, a compensable rating is not warranted for the Veteran's service connected right 2nd or 3rd finger laceration under Diagnostic Code 5229. The preponderance of the evidence is against a finding that the Veteran's right 2nd or 3rd finger had the requisite limitation of motion on any date certain prior to July 19, 2019, to warrant a compensable rating, including when 38 C.F.R. §§ 4.40, 4.45, and Sharp and Correia are considered. The September 1971 VA examination report indicates that he could extend and flex his 2nd and 3rd fingers and also had normal abduction and adduction. The February 2014 VA examination report indicates that the ranges of motion of his 2nd and 3rd fingers were normal. None of the evidence including the July 19, 2019 VA examination report indicates that the Veteran's 2nd or 3rd finger motion was limited to the requisite degree on any date certain prior to July 19, 2019. Outpatient treatment records do not support compensable ratings. Based on the evidence, the Board concludes that from July 19, 2019, a rating in excess of 10 percent cannot be assigned under Diagnostic Code 5229 for the Veteran's service connected right 2nd or 3rd finger laceration, as that Diagnostic Code’s maximum rating is 10 percent. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record in connection with these disabilities. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A compensable rating for right 4th (ring) finger laceration The rating period dates back to the date following service discharge in June 1971. The Veteran appeals for a compensable rating for his 4th finger laceration, which is assigned a noncompensable rating under Diagnostic Code 5230. Diagnostic Code 5230 has no compensable rating. Its maximum rating is 0 percent. Accordingly, a compensable rating may not be assigned under it. Neither the Veteran nor his former representative has raised any other issues, nor have any other issues been reasonably raised by the record in connection with this disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A compensable rating for laceration scars of the right 2nd, 3rd, and 4th fingers The rating period for this disability starts with the date following the Veteran's June 1971 service discharge. The Veteran appeals for a higher rating for this disability, which is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 has been amended several times during the rating period. New criteria may not be applied prior to their effective dates. Currently, effective August 13, 2018, DC 7804 provides that where five or more scars are unstable or painful, a 30 percent rating is warranted; where three or four scars are unstable or painful, a 20 percent rating is warranted; where one or two scars are unstable or painful, a 10 percent rating is warranted. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. The criteria used to evaluate disabilities of the skin were revised in 2008. The applicability of the 2008 amendment is specified as follows: "This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review." See 73 Fed. Reg. 54708-01. The Veteran's claim was received prior to October 23, 2008, and he has not requested that his disabilities be evaluated under the 2008 criteria, so the Board will not consider the 2008 criteria. Regardless, they do not demonstrate that a higher rating is warranted. Effective August 30, 2002 to October 23, 2008, DC 7804 applied to scars that are superficial and painful on examination. A superficial scar was defined as one not associated with underlying soft tissue damage in Note (1) and Note (2) provided that in this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. A single 10 percent rating was available. 38 C.F.R. § 4.118, DC 7804 (2003-2008). Prior to August 30, 2002, the criteria under Diagnostic Code 7804 assigned a 10 percent rating for scars, superficial, tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1971-2002). The September 1971 VA examination report shows that the Veteran's service connected right hand finger lacerations had healed with no residual sequelae or complications. The February 2014 and July 2019 VA examination reports (two in July 2019) show that there are no scars which are painful or unstable. There is no evidence of record to the contrary. Accordingly, the Board finds that considering each version of DC 7804 where applicable, under any version of the rating criteria, a compensable rating cannot be assigned for the Veteran's service connected laceration scars of his right 2nd, 3rd, and/or 4th fingers under Diagnostic Code 7804. Right hand neuropathy The Veteran appeals for additional compensation for right hand neuropathy, which is unrated prior to July 19, 2019 and is rated as 20 percent disabling from July 19, 2019 under Diagnostic Code 8512, which is for the paralysis of the lower radicular group. The rating period dates back to the date following the Veteran's June 1971 service discharge. Under Diagnostic Code 8512, a 20 percent rating is warranted for mild incomplete paralysis of the lower radicular group. A 40 percent rating is warranted for moderate incomplete paralysis of the major hand’s lower radicular group. Based on the evidence, the Board concludes that from the June 1971 date of the Veteran's service discharge through July 18, 2019, a 20 percent rating, but not higher, is warranted for his service connected right hand neuropathy. The Veteran indicated in June 1971 statements that the cut of his right hand has a tendency to hurt, that part of it seems to be numb, that part of it causes shortness of use, and that it causes hurting when used excessively. He indicated that one side of one of his fingers was seemingly still dead and that it has a tendency to hurt when it is used often. The September 1971 VA examination report shows that the Veteran had some residual numbness along the radial side of his right index finger, and a tendency for his hand to feel cold. He also complained of an aching in his hand most of the time. The February 2014 VA examination report indicates that he complained of mild residual difficulty in using his hand and that his right hand grip is chronically reduced to about 40 percent of his left hand. Clinically, his right hand grip strength was reported to be 3/5. He had painful motion in his right 4th finger, but not the others, and he lacked full flexion in his right 4th finger. The symptoms reported by the Veteran in June 1971 and shown at the times of these examinations equate with mild incomplete paralysis of the right lower radicular group. However, his right hand neuropathy did not equate with moderate incomplete paralysis of his right lower radicular group to warrant a rating in excess of 20 percent under Diagnostic Code 8512 prior to July 19, 2019. The September 1971 VA examination report shows that his primary neurological residual clinically was numbness along the radial aspect of his right index finger. He could extend the digits and flex the digits to the crease of the palm and had normal abduction and adduction of the digits. He also had good hand grip. The February 2014 VA examination report indicates that he complained of only mild residual difficulty in using his hand, with some reduced hand grip and painful motion only in his right 4th finger. And while his hand grip strength tested at 3/5, and the examiner stated that his grip was chronically reduced to about 40 percent of normal, as the Veteran pointed out in March 2014, he had no atrophy. The Veteran reported in March 2014 that his right hand is almost useless when it comes to using it for work, and that he cannot use it for work. However, the Board finds that the Veteran’s statements in this regard lack credibility as they are inconsistent with the other evidence of record. Provisions of 38 C.F.R. § 4.40 indicate that a little used part of the musculoskeletal system may be expected to show evidence of disuse, such as through atrophy, which is not shown here, to support an actual 3/5 hand grip strength due to his service connected right hand neuropathy. Further, his hand grip and pinch were 5/5 on VA examination in July 19, 2019, as indicated below, undermining the report that the hand grip is almost useless. The Board also concludes that from July 19, 2019, a rating in excess of 20 percent is not warranted for the Veteran's service connected right hand neuropathy under Diagnostic Code 8512. The July 19, 2019 VA examination report shows that his principal complaints are severe right upper extremity intermittent pain and numbness. He denied constant pain; as well as paresthesias and/or dysesthesias. His right upper extremity muscle strength was 5/5 at the elbow, wrist, and for hand grip and pinch, and he had no muscle atrophy or trophic changes. His deep tendon reflexes were all normal. And after considering all of this, the examiner in July 2019 graded the Veteran's lower radicular group as having no more than mild incomplete paralysis. Outpatient treatment records do not support higher ratings. A compensable rating for rash of the scrotum The claim period dates back to the date following service discharge in June 1971. The Veteran’s scrotum rash is currently assigned a noncompensable rating from June 1971 under 38 C.F.R. § 4.118, Diagnostic Code 7806, which is for dermatitis or eczema. The Board notes that during the pendency of this appeal, the regulations relating to skin disabilities were amended effective August 30, 2002. See 67 FR 49,596 (July 31, 2002). Relevant amendments were also made effective from August 13, 2018. In keeping with VA practice and appropriate precedent, the rating agency should apply the version of the regulation that is most favorable to the Veteran, since the regulations changed during the pendency of his appeal. See VAOPGCPREC 7-03 (2003). New criteria discussed below may not be applied prior to their August 30, 2002 and August 13, 2018 effective dates. The Veteran's skin rash is rated under Diagnostic Code 7806, for dermatitis or eczema. Under the pre-2002 criteria, a 0 percent rating requires slight, if any exfoliation, exudation, or itching, in on a nonexposed surface or small area. A compensable rating of 10 percent requires evidence of exfoliation, exudation, or itching, if involving an exposed surface or extensive area. If the exudation or itching is constant and there are extensive lesions or marked disfigurement, a 30 percent disability rating is assigned. To warrant the maximum 50 percent rating, ulceration or extensive exfoliation or crusting, and systemic or nervous manifestation or exceptional repugnance must be shown. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). Under the 2002 amendments, when the disorder covers less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy is required during the past 12- month period, a 0 percent rating is assigned. A 10 percent rating is assigned when at least 5 percent, but less than 20 percent of the entire body is covered; or at least 5 percent, but less than 20 percent of exposed areas are affected; or intermittent systemic therapy, such as corticosteroids / other immunosuppressive drugs, are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema, affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2010). During the pendency of the claim, the regulations pertaining to skin disabilities were again amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that claims pending prior to August 13, 2018 will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. 83 Fed. Reg. at 32593. Under both the prior and current rating criteria, DC 7806 provides several potential avenues for evaluating a skin disability - the percentage of the body or exposed areas affected, and the frequency of use of a systemic therapy. However, the term “systemic therapy'' is only defined under the most recent August 13, 2018 skin regulations. See 38 C.F.R. § 4.118(a) (effective August 13, 2018) (for the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin). In Warren v. McDonald, 28 Vet. App. 194 (2016), the Court held that systemic therapy for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is like a corticosteroid or other immunosuppressive drug, to determine whether such treatment was a systemic therapy. Subsequently, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Further, the Federal Circuit added that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. The Board finds that based on the record, a compensable rating is not warranted under the pre-2002 rating criteria at any time during the appeal. The preponderance of the evidence is against a finding that under the old rating criteria, the exfoliation, exudation, or itching, involving an exposed surface or extensive area, necessary for a 10 percent rating, is present. The September 1971 VA examination report shows that the Veteran reported that his fungus type of infection from service was primarily in the loin, and that it still itches. He had been seen in the outpatient department at that facility a few days earlier and was given some medication, but it still itched. The diagnosis was rash in the scrotum, residual of fungus infection overseas, least seen at that facility several days ago, and still present and itching. The VA examiner in July 2019 indicated that any current tinea cruris occupied 0 percent of the Veteran's total body area and 0 percent of exposed area. The Veteran testified in December 2017 that his whole body breaks out in a rash sometimes. However, this is not objectively shown during the rating period, and is not credible as it is inconsistent with the other evidence of record. His treatment records do not report his rash and to the contrary, where they remark about the skin, they indicate normal findings, he and/or they indicate that no rash is present, and/or he and/or they do not indicate that a rash is present. This includes entries in or about July and December 2015, February, March, April, September, and December 2016, February and December 2017, March and December 2018, January, March, April, and August 2019. Applying the 2002 amended criteria from the effective date, the Board finds that a compensable rating is not warranted for the Veteran's service connected scrotum rash at any point from the August 30, 2002 effective date for the new criteria to the present. The VA examiner in July 2019 indicated that any current tinea cruris occupied 0 percent of the Veteran's total body area and 0 percent of exposed area. The Veteran reported in November 2014 that he takes hydrocortisone for his rash. However, it is not factually ascertainable that he had systemic therapy, even intermittent, at any time. The Veteran testified in December 2017 that his whole body breaks out in a rash sometimes and that he is prescribed hydrocortisone for it in pill form by his VA physician, Dr. Freedman. However, this assertion lacks credibility as it is inconsistent with the other evidence of records. In particular, his treatment records do not report his rash or hydrocortisone treatment and to the contrary, where they remark about his skin, they indicate normal findings, he and/or they indicate that no rash is present, and/or he and/or they do not indicate that a rash is present. This includes in entries in or about July and December 2015, February, March, April, September, and December 2016, February and December 2017, March and December 2018, January, March, April, and August 2019. Additionally, the VA examiner in July 2019 indicated that the only treatment for the Veteran's skin disease in the past 12 months had been topical antifungal cream. The examiner indicated that the Veteran had not been treated for his skin disease with corticosteroids or other immunosuppressive medications in the past 12 months. The amendments effective from August 13, 2018 are now contained at 38 C.F.R. § 4.118, General Rating Formula for the Skin. See 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). They refine the definition of systemic therapy. They now define constant or near constant systemic therapy including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppresive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12 month period, warrants a 10 percent rating. If this systemic therapy is required for less than 6 weeks, a noncompensable rating is warranted. The treatment records, including those mentioned above, make it clear that the Veteran has not received systemic therapy as contemplated by the new criteria since August 13, 2018, and so a 10 percent rating cannot be assigned under the most recent amendments to the skin rating criteria. The Veteran’s testimony in December 2017, to the effect that he is prescribed hydrocortisone pills for this skin disease, is not credible, for reasons stated above. As discussed above, the record does not otherwise reflect systemic therapy as contemplated by the August 13, 2018 amendments.   A compensable rating for bilateral hearing loss disability VA granted service connection for bilateral hearing loss disability in March 2014, effective from the April 17, 2013 date of claim, and the Veteran appealed VA's assignment of a noncompensable rating. Accordingly, we are concerned with the degree of hearing loss disability since April 17, 2013. His bilateral hearing loss disability is currently rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. In Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992), the Court noted that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. The test procedures required to measure hearing loss disability are set forth at 38 C.F.R. § 4.85 and are, therefore, uniform in evaluating hearing loss disability. Thus, an examination that meets the requirements of 38 C.F.R. § 4.85 and the assignment of the disability evaluation through the mechanical application of the rating schedule, as recognized by the Court in Lendenmann, would meet the statutory and regulatory requirements that the rating be based, as far as practicable, upon the average impairment of earning capacity. See 38 U.S.C. § 1155. On VA examination in March 2014, the Veteran complained that he misses a lot of conversations unless they are said very loudly. His pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 45 50 50 LEFT 50 55 60 55 55 Speech recognition scores, using the Maryland CNC test, were 92 percent in the right ear and 96 percent in the left ear. Sensorineural hearing loss was diagnosed. The examiner indicated that the test results are valid for rating purposes. These findings, using 38 C.F.R. § 4.85, Table VI, yield a Roman numeral I for each ear, and also yield a noncompensable rating using 38 C.F.R. § 4.85, Table VII. The evidence does not show that a December 2017 Costco Hearing Aid Center audiometric evaluation used the Maryland CNC Test, as required by 38 C.F.R. § 4.85. The Board had remanded in June 2018 to give the Veteran the opportunity to show that the Maryland CNC test was used. He stated in April 2019 that he would get information about this from the audiologist at Costco, but he did not later submit evidence to show that the Maryland CNC test was used in December 2017. Accordingly, VA’s duties to notify and assist have been met in this regard and the December 2017 Costco hearing results cannot be considered. During a VA audiology appointment days later in December 2017, the Veteran's puretone thresholds then were noted to show no significant threshold change when compared to his last (VA) audiogram. Recorded word discrimination ability was poor with 72 percent correct bilaterally. The speech scores were not considered valid for rating purposes. The Veteran demonstrated poor effort during speech testing, yet prior to the speech testing, he was able to understand and communicate with the examiner without his hearing aids and at a normal conversation level. As the speech discrimination scores were not considered valid, a higher rating may not be assigned based on this report.   On May 2019 Costco Hearing Aid Center evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 50 50 47.5 LEFT 45 50 60 55 52.5 Speech recognition scores were 90 percent in each ear. The evidence does not show that the Maryland CNC test was used. Accordingly, these findings cannot be used. Even assuming, however, that it was, these findings, using 38 C.F.R. § 4.85, Table VI, would yield a Roman numeral II for each ear, and also would yield a noncompensable rating using 38 C.F.R. § 4.85, Table VII. On VA audiometric examination in July 2019, puretone threshold results were not recorded, with the examiner indicating that test results were not valid for rating purposes (not indicative of organic hearing loss), and that inter-test consistency was poor. The examiner remarked that the Veteran had a normal conversation in the office with the examiner. The Veteran responded to the speech reception test at a moderate level of hearing loss, and puretone responses were at severe to profound. Word recognition was effortless and the Veteran would think before responding and/or skip words. Speech recognition scores, using the Maryland CNC test, were 76 percent in the right ear and 72 percent in the left ear. The examiner indicated that the use of the speech discrimination test is not appropriate because of inconsistent scores or other reasons. As a result, a higher rating may not be assigned based on this examination report. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment as defined by 38 C.F.R. § 4.86 is not shown; thus, consideration of 38 C.F.R. § 4.86 is not warranted. The Veteran's complaints, including those reported above, as well as his December 2017 hearing testimony to the effect that he could not hear at the time of the VA examination in 2014 and that sometimes his ears hurt and he has to turn the television up to about 25 decibels or more and that he still does not completely hear what is being said have been considered. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved in the Veteran's favor in this regard. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.