Citation Nr: 20051908 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 18-02 642 DATE: August 5, 2020 ORDER An initial compensable rating for hearing loss is denied. REMANDED Service connection for a lung condition.   FINDING OF FACT The Veteran’s hearing loss has been manifested by no worse than level III hearing loss in his right ear and left ears. CONCLUSION OF LAW The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1956 to February 1959. The case is on appeal from a January 2017 rating decision. In July 2018, the Veteran testified at a Board hearing. Thereafter, in an October 2018 decision, the Board reopened the lung condition claim and remanded the claims for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for hearing loss. Legal Criteria The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone 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 VIA, whichever results in the higher numeral. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis The Veteran is seeking an initial compensable rating for hearing loss. During the July 2018 Board hearing, he reported that his hearing loss had gotten worse. The Veteran was afforded a VA examination for this disability in November 2016. The examiner reported the following pure tone thresholds, in decibels: November 2016 HERTZ 1000 2000 3000 4000 AVG. RIGHT 45 50 70 70 58.75 LEFT 30 50 75 80 58.75 The average pure tone threshold was 58.75 in both the right and left ears. Speech discrimination revealed scores of 84 percent in both the right and left ears. The results correspond to level III hearing loss in each ear. 38 C.F.R. § 4.85, DC 6100. When combined, the results reflect a noncompensable disabling evaluation for the Veteran’s hearing loss. Id. Thereafter, pursuant to the October 2018 Board remand, the Veteran was afforded another VA audiological examination in May 2019. The Veteran reported experiencing trouble hearing that is sometimes worse in certain situations. The examiner reported the following pure tone thresholds, in decibels: May 2019 HERTZ 1000 2000 3000 4000 AVG. RIGHT 45 55 70 75 61.25 LEFT 35 55 75 80 61.25 The average pure tone threshold was 61.25 in both the right and left ears. Speech discrimination revealed scores of 84 percent in both the right and left ears. The results correspond to level III hearing loss in each ear. 38 C.F.R. § 4.85, DC 6100. While the hearing loss did worsen to a degree, when combined, the results nevertheless reflect a noncompensable disabling evaluation for the Veteran’s hearing loss. Id. The Board finds an initial compensable rating for this disability is not warranted at any point during the appeal. Although the Veteran contends that his hearing loss should be rated at a compensable level, the applicable mechanical hearing testing of record shows that his hearing loss is correctly evaluated as noncompensably disabling. The Board has considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence does not show that the Veteran experienced a compensable level of hearing loss at any time during the appeal period, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial compensable rating for hearing loss is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND Service connection for a lung condition. The Veteran contends that he has a chronic lung condition due to his military service. In this regard, in an April 2017 correspondence, he reported experiencing breathing problems during service. He also reported being advised to seek treatment for this condition after discharge. He further reported that a VA physician told him in March 1959 that he would develop lung problems when he got older. Thereafter, during the July 2018 Board hearing, the Veteran reported experiencing the onset of a fungal condition in his lungs during service. He also reported being treated for a lung condition during service. The Veteran’s service treatment records (STRs) show that he was treated for a condition noted as “TB.” His January 1959 separation examination does not note any relevant conditions. Shortly after discharge in March 1959, the Veteran filed a claim of service connection for cough and chest pain. He was afforded a VA examination in regard to this claim in April 1959. During the examination, the Veteran reported experiencing pains in his chest and recurrent, severe coughing. The examiner reported that a chest x-ray showed clear lung fields. The examiner found that there was no evidence of pulmonary pathology. The Veteran’s post-service VA treatment records since 1994 reflect that he has frequently sought treatment for chronic coughing and shortness of breath. During VA treatment in April 2006, a VA registered nurse noted that the Veteran has a history of chronic bronchitis. In April 2017, the Veteran submitted a letter written by a VA physician in March 2017. The physician reported evaluating the Veteran for his respiratory condition. She also reported that a review of his medical records shows he has a chronic respiratory condition that dates to his military service in the 1950’s. The physician explained that imaging of the Veteran’s chest showed a granuloma that suggests the possibility of exposure to coccidioidomycosis or other fungal infection. She further explained that the Veteran trained near a location where such fungus is found during service around the time of the reported onset of respiratory problems. Pursuant to the October 2018 Board remand, the Veteran was afforded another examination in regard to this claim in May 2019. The examiner noted that the Veteran is a former smoker with a history of chronic cough. The examiner diagnosed the Veteran with asthma and chronic cough. He found that these conditions are less likely than not related to service. He explained that the Veteran’s cough is likely related to post-nasal drip and that it is not caused by service. However, he did not provide a nexus opinion in regard to the Veteran’s asthma. Thereafter, during an August 2019 psychiatric examination, the Veteran reported being transferred from a tank during service due to problems communicating caused by coughing and a persistent need to clear his throat. The Board finds that a remand is necessary to obtain another opinion in regard to the nature and etiology of the Veteran’s lung conditions. The claim is REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the lung conditions. The entire claims file should be reviewed by the examiner. Thereafter the examiner is asked to: (a.) Identify all of the Veteran’s lung conditions experienced since October 2016, to include whether there is a chronic cough and asthma. (b.) State whether it is at least as likely as not that each disorder had its onset during service or is otherwise related to an in-service event, disease, or injury, to include reported in-service symptoms and serving near an area where fungus that can cause respiratory infections is located. A rational should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.