Citation Nr: 21001194 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-42 107 DATE: January 7, 2021 ORDER Entitlement to a compensable initial evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for left eye disability (claimed as deteriorating left eyesight) is remanded. FINDING OF FACT At no point during the appeal period has the Veteran’s hearing acuity been worse than Level I in the right ear and left ear. CONCLUSION OF LAW The criteria for a compensable initial evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1967 to February 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran received notice of that rating decision in July 2015. In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript is associated with the claims file. When this case was recently before the Board in July 2019, the Board remanded the Veteran’s claim for a compensable initial evaluation for right ear hearing loss, and the Veteran’s claims of entitlement to service connection for left eye disability, posttraumatic stress disorder (PTSD), and left ear hearing loss. While on remand, service connection was granted for PTSD, with an assigned evaluation of 30 percent effective December 24, 2014. See August 2020 rating decision. Since the grant of service connection benefits constituted a full grant of the benefit sought on appeal with regard to these issues, they are no longer in appellate status. Holland v. Gober, 10 Vet. App. 433, 436 (1997). In August 2020, service connection left ear hearing loss was granted effective from December 24, 2014 (date of claim). The AOJ thus evaluated the Veteran’s left ear hearing loss disability along with his already service connected right ear hearing loss, i.e. bilateral hearing loss disability. The issue on appeal has been recharacterized for that reason. As it pertains to the issue of service connection for left eye disability, for reasons set forth below, the Board finds the AOJ did not discharge its duty to assist the Veteran by obtaining his complete service personnel records for his period of service. Entitlement to a Compensable Initial Evaluation for Bilateral Hearing Loss 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). The Veteran has undergone two VA audiological examinations during the appeals period. A March 2015 VA examination reveals that the Veteran reported no functional impact of his hearing loss. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 40 35 LEFT 15 20 20 20 15 The pure tone threshold average in the Veteran’s right ear was 31.25 (31) and speech discrimination was 96 percent. The pure tone threshold average in the Veteran’s left ear was 18.75 (19) and speech discrimination was 96 percent. 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 (0) percent disability evaluation under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At his March 2019 hearing, the Veteran offered testimony regarding worsening hearing. He testified that he frequently has to ask people to repeat themselves, especially when there is background noise. The Veteran was afforded a December 2019 VA examination. On the authorized audiological evaluation, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 45 40 LEFT 20 25 30 40 45 The pure tone threshold average in the Veteran’s right ear was 32.5 (33) and speech discrimination was 94 percent. The pure tone threshold average in the Veteran’s left ear was 35 and speech discrimination was 96 percent. Applying the results to Table VI, the findings again 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 noncompensable evaluation 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 initial evaluation for the Veteran’s bilateral hearing loss is not warranted. The Veteran contends that his hearing loss disability warrants a compensable initial evaluation. The December 2019 examiner noted the Veteran’s report that functional impairment of his hearing loss includes difficulty understanding conversation in noisy environments and asking people to repeat themselves. The Veteran is competent to report difficulty hearing. The Board finds these reports credible. Nevertheless, the Veteran’s lay contentions regarding the severity of his hearing loss disability are outweighed by the more probative, objective medical evidence. The Board finds the results of the March 2015 and December 2019 audiological examinations to be the most probative evidence of record. The Board recognizes the Veteran’s belief that he is entitled to a compensable rating for his hearing loss disability. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. There are no probative objective audiometric evaluations to the contrary. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Boar emphasizes that Court of Appeals for Veterans Claims (Court) has upheld VA’s policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, the Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017) that VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran’s difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during the VA audiology examinations. 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 does not apply here. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to Service Connection for Left Eye Disability (claimed as Deteriorating Left Eyesight) is Remanded. A July 2020 VA treatment record indicates the Veteran reported receiving private treatment from an “outside eye doctor in September 2015.” The AOJ must undertake efforts to obtain all outstanding private treatment records that the Veteran identifies as pertinent to his claim for left eye disability. 38 C.F.R. § 3.159. A remand for the records is necessary. Additionally, the July 2019 remand found that there was some question as to whether that there may be outstanding personnel records that have yet to be associated with the claims file. The matter was remanded to determine if such records existed, request such, and to obtain and associate them with the record. There is no indication that any inquiry was made as to whether there are any additional military personnel records. While the relevance of such records is not clear, because there is a suggestion that the Veteran’s service personnel records are incomplete, this claim must be remanded to correct a duty to assist error. See 38 U.S.C. § 5103A. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records for his period of service. All requests for information as well as all responses should be documented in the claims file. 2. Ask the Veteran to complete and return VA Form 21-4142, Authorization and Consent to Release Information, for any private treatment records identified by him as pertinent to his claim for left eye disability. After obtaining the completed VA Form 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims file. If these records cannot be located, provide the Veteran notice and an opportunity to respond. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.