Citation Nr: 21068075 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-29 426 DATE: November 9, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) and major depressive disorder is granted. An initial disability rating greater than 10 percent for the service-connected degenerative joint disease of the lumbar spine prior to March 22, 2017 is denied. A disability rating of 40 percent for the service-connected degenerative joint disease and intervertebral disc syndrome of the lumbar spine from March 22, 2017 is granted. An initial compensable disability rating for the service-connected right ear hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that she has PTSD and major depressive disorder related to her active service. 2. Prior to March 22, 2017, the Veteran's lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks during any 12 month period. 3. Resolving reasonable doubt in the Veteran's favor, from March 22, 2017, her lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; unfavorable ankylosis of the entire thoracolumbar spine has not been shown. 4. The Veteran's right ear hearing loss has been manifested by no worse than Level I hearing impairment in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial disability rating greater than 10 percent for the service-connected degenerative joint disease of the lumbar spine prior to March 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5235, 5243. 3. The criteria for a disability rating of 40 percent, but no greater, for the service-connected degenerative joint disease and intervertebral disc syndrome of the lumbar spine from March 22, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 4. The criteria for an initial compensable disability rating for the service-connected right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service for VA benefits purposes from September 1981 to September 1996, and from October 2001 to January 2004. The Veteran testified before a Veterans Law Judge at a hearing in March 2017. In an August 2018 decision, the Board dismissed the appeal of the claim for service connection for left ear hearing loss, granted service connection for residuals of a partial hysterectomy, and remanded the remaining claims for further development. In a November 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for radiculopathy of the lower extremities and increased the rating for the lumbar spine disability to 40 percent from November 18, 2020. As the Veteran did not file a notice of disagreement with the assigned ratings for the lower extremity radiculopathies, those issues are not before the Board. While the Veteran's disability was previously characterized as degenerative joint disease of the lumbar spine, a November 2020 VA examination revealed that her disability has progressed to include intervertebral disc syndrome of the lumbar spine. Thus, the Board has recharacterized the disability as noted above. In August 2021, the Board advised the Veteran that the Veterans Law Judge who held the March 2017 hearing was no longer employed by the Board and informed her of her right to another hearing. The Board further advised that, if she did not respond within 30 days from the date of this letter, the Board would assume that she did not want another hearing and proceed accordingly. In September 2021, the Veteran's representative requested an extension of 30 days to review the claims file and provide a statement in support of her claim, as she only just received the letter. While more than 30 days have passed, neither the Veteran nor her representative has requested another hearing or submitted any argument. The Board will proceed with the adjudication of the Veteran's appeal without a hearing. The Board observes that the representative has had an opportunity to review the claims file. The Board notes that the Veteran has an appeal of the effective dates of the awards of service connection for associated radiculopathy of the lower extremities pending under the modernized review system, also known as the Appeals Modernization Act (AMA). The appeal of those issues will be addressed in a separate decision. Service ConnectionPTSD and Major Depressive Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual for Mental Disorders); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran asserts that she has a psychiatric disorder due to witnessing the suicide of a fellow soldier in Germany and being physically abused by her then husband. Service treatment records during the Veteran's period of honorable service show treatment following physical abuse by her then husband. In August 1982, she reported being abused by her husband the day before, and the clinician noted that emergency room records from the night before show that she had been treated for trauma to the abdomen. The Veteran noted that the abuse had been ongoing for the past four months. [A June 1982 record of emergency care shows her report of falling on her left elbow and shoulder.] An April 1984 record of emergency care shows her report of being assaulted by her husband, that he pushed her down, and that she was found to have a contusion of the left side of her abdomen. Service personnel records show that in December 2006 the Veteran pled guilty to voluntary manslaughter for fatally stabbing her husband in July 2005. In August 2006 she was sentenced to a reduction in grade and 13 years of confinement and given a dishonorable discharge. The Veteran's period of service from January 2004 to September 2007 has been found to be dishonorable. Post service, medical records dated as early as October 2007 reflect diagnoses of PTSD and major depressive disorder. An August 2010 record shows a history of domestic violence and treatment for depression. A November 2010 VA treatment record shows a history of domestic violence, conviction for manslaughter and five years of incarceration, and diagnoses of PTSD and major depressive disorder. At a May 2013 VA examination, the Veteran reported in-service stressors of being captured from behind during POW training, seeing a soldier fall from a building and die and being physically abused by her then husband. The examiner found that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD but had depression. The examiner opined that the Veteran's depression was not related to active service but rather had its onset during her period of dishonorable service and the circumstances leading to her imprisonment. The examiner indicated that the Veteran's stressor of domestic violence was adequate to support a diagnosis of PTSD. However, in concluding that the Veteran did not have PTSD, the examiner only discussed a stressor of being sexually assaulted prior to service. At the March 2017 Board hearing, the Veteran testified as to in-service stressors of personal assaults, specifically, incidents of domestic abuse by her then husband. At a May 2020 VA examination, the Veteran reiterated her in-service stressors. This examiner also found that the Veteran's domestic violence incidents were adequate to support a diagnosis of PTSD but concluded that she did not meet the diagnostic criteria for a diagnosis of any mental health disorder. In rendering that conclusion, the examiner relied on the lack of recent mental health treatment. In a separate medical opinion, the examiner stated that the Veteran's symptoms did not meet the criteria for a mental health diagnosis and that there were no records since 2013 showing any mental health issues, diagnosed or treated. The examiner then opined that an acquired psychiatric disorder, to include PTSD and depression, was not incurred in, or caused by, any event in service. VA treatment records dated through March 2021 continue to show diagnoses of, and treatment for, PTSD and depression. Initially, while the May 2020 examination failed to yield a diagnosis of PTSD or any other psychiatric disorder, the March 2013 examination resulted in a diagnosis of depression and treatment records dated both prior to and since the examinations show diagnoses of PTSD and depression. Thus, the Board will resolve reasonable doubt in the Veteran's favor and find that she has PTSD and major depressive disorder. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the above, service treatment records verify the Veteran's stressor of being abused by her then husband, which occurred during a period of honorable service. While the March 2013 examiner related the Veteran's depression only to events that occurred during a period of dishonorable service, those eventsincidents of domestic abusealso occurred during her earlier period of honorable service. Also, both March 2013 and May 2020 examiners found that the Veteran's domestic violence incidents were adequate to support a diagnosis of PTSD. Moreover, the November 2010 VA treatment record showing the history of domestic violence, manslaughter conviction and 5-year incarceration along with diagnoses of PTSD and major depressive disorder indicate that the PTSD and major depressive disorder are related to the in-service incidents of domestic violence. In light of the circumstances in this case, and again resolving reasonable doubt in the Veteran's favor, the Board finds that her PTSD and major depressive disorder ar at least as likely as not related to active service. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, the Board concludes that service connection for PTSD and major depressive disorder is warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbar Spine Effective September 16, 2010, the Veteran's degenerative joint disease of the lumbar spine had been rated at 10 percent under Diagnostic Code 5235-5003. 38 C.F.R. § 4.71a. As will be seen below, she reported a history of undergoing fusion of the lumbar spine for an out-of-place disc and thus her disability was rated under Diagnostic Code 5235 for vertebral fracture or dislocation. As there was no evidence of a current vertebral fracture or dislocation, her disability was evaluated as residuals under Diagnostic Code 5003 for degenerative arthritis. 38 C.F.R. § 4.27. As noted above, her disability has progressed to include intervertebral disc syndrome. From November 18, 2020, her disability has been rated at 40 percent under Diagnostic Code 5243 for intervertebral disc syndrome. The following ratings are available for both Diagnostic Code 5235 and Diagnostic Code 5243 under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; and 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. At a May 2013 VA examination, the Veteran reported injuring her low back lifting heavy objects, being told that she had a disc out of place and undergoing fusion of the lumbar spine. She reported that she has low back pain when bending or sitting on a hard chair. She denied having any flare-ups. Examination revealed forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Repetitive-use testing revealed no additional loss of range of motion. The examiner indicated that the Veteran does not have guarding or muscle spasm of the thoracolumbar spine, radiculopathy, or intervertebral disc syndrome. The examiner provided a diagnosis of degenerative joint disease of the lumbar spine. The examiner indicated that the Veteran's lumbar spine disability does not impact her ability to work. At the March 2017 Board hearing, the Veteran indicated that her low back disability had worsened since the last VA examination. VA treatment records show complaints of low back pain but do not show complete range of motion or other pertinent findings. However, an April 2017 record shows complaints of worsening low back pain with left leg weakness. Then, a May 2017 record shows approval of six months of physical therapy for low back pain. At a November 2020 VA examination, the Veteran reported sharp low back pain radiating down both legs. She denied flare-ups. She reported that she cannot stand or walk for more than a few minutes or bend, squat, stoop or walk up and down inclines without an increase in back pain. Examination revealed forward flexion to 30 degrees, extension to 15 degrees, left and right lateral flexion to 20 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 20 degrees. Repetitive use testing revealed no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time and estimated range of motion during such times as forward flexion to 20 degrees, extension to 10 degrees, left and right lateral flexion to 10 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 10 degrees. The examiner indicated that pain, weakness, fatigability or incoordination also significantly limits functional ability with flare-ups and estimated range of motion during such times as forward flexion to 10 degrees, extension to 5 degrees, left and right lateral flexion to 5 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 5 degrees. The examiner provided diagnoses of degenerative joint disease and intervertebral disc syndrome of the lumbar spine. The examiner indicated that the Veteran's lumbar spine disability does not impact her ability to work. In a February 2021 statement, the Veteran expressed her disagreement with the November 18, 2020 effective date of the increased 40 percent rating, asserting that disability worsened prior to the November 2020 examination. She also expressed dissatisfaction with the 7-year delay in affording her a VA examination. Given the above, the Board notes that the findings of the November 2020 VA examination provide the first objective evidence that the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less to warrant the currently assigned 40 percent rating. Indeed, the date of that examination has been applied as the effective date of the rating. The Board observes, however, that the record suggests that her disability worsened prior to that examination. The Veteran testified at the March 2017 hearing that her disability had worsened, and the April 2017 treatment record reflects complaints of worsening low back pain with radicular symptoms, which led to the approval of physical therapy. The Board also acknowledges that there was a delay in affording her an examination. Thus, given the circumstances in this case, despite the absence of objective range of motion findings, resolving reasonable doubt in the Veteran's favor, the Board finds that from the date of the Board hearing, or March 22, 2017, her lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, a 40 percent rating is warranted from that date. With no objective evidence that the Veteran's disability was limited to forward flexion of the thoracolumbar spine to 30 degrees or less prior to the Board hearing, March 22, 2017 is the earliest date for the 40 percent rating based on limitation of motion. With no evidence of incapacitating episodes having a total duration of at least 4 weeks during any 12-month period prior to that date, a 40 percent rating based on incapacitating episodes is also not warranted. Further, a rating greater than 40 percent is also not warranted. While range of motion of the lumbar spine has been significantly limited, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher 50 percent rating. Indeed, there is no evidence of any ankylosis, as noted by the November 2020 examiner. With no evidence of incapacitating episodes having a total duration of at least 6 weeks during any 12-month period, a higher 60 percent rating based on incapacitating episodes is also not warranted. The Veteran did not report having incapacitating episodes at the November 2020 examination, and the other medical evidence of record does not show any such episodes. The remaining question then is whether an initial disability rating greater than 10 percent is warranted prior to March 22, 2017. However, the Veteran's lumbar spine disability had not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Despite the pain, she had full range of motion of the thoracolumbar spine, even after repetition. Thus, even considering functional loss due to pain and other factors, the Veteran's lumbar spine disability had not more nearly approximated forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such findings. There is also no evidence that her disability had been manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the Board notes the delay in the examination, with no objective evidence of an increase in disability, the Board cannot apply the same reasoning as above to this rating period. The Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that she had the necessary limitation of range of motion to warrant a higher 20 percent rating. Thus, a higher rating based on limitation of motion is not warranted. There is also no evidence that the Veteran's lumbar spine disability resulted in intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks during any 12-month period prior to March 22, 2017. The Veteran did not report having incapacitating episodes at the May 2013 examination, and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted. In conclusion, the Board has resolved reasonable doubt in granting a higher 40 percent rating for the service-connected degenerative joint disease and intervertebral disc syndrome of the lumbar spine from March 22, 2017. However, as the preponderance of the evidence is against an even higher rating or an initial rating greater than 10 percent prior to March 22, 2017, those aspects of the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. In reaching this decision, the Board has also considered whether separate compensable ratings are warranted for other neurological abnormalities (e.g., bowel or bladder abnormalities) associated with the service-connected lumbar spine disability. However, other than the lower extremity radiculopathies, the evaluations of which are not before the Board, no other abnormalities associated with this service-connected lumbar spine disability have been shown. Separate compensable ratings based on such associated problems are, thus, not warranted. Right ear hearing loss Effective September 16, 2010, the Veteran's right ear hearing loss has been rated 0 percent (noncompensable) under Diagnostic Code 6100. 38 C.F.R. § 4.85. Ratings for hearing loss disability are determined in accordance with findings obtained on audiometric evaluation. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Hearing tests are to be conducted without hearing aids, and the results of the testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Under 38 C.F.R. § 3.383, the Veteran will be provided compensation as though both ears are service-connected if the nonservice-connected ear hearing disability was not caused by the Veteran's own willful misconduct and the Veteran's hearing loss disability in the service-connected ear is compensable to a degree of 10 percent or more. At a May 2013 VA audiological examination, audiometric testing revealed that the hearing threshold levels in decibels were 25, 35, 35 and 45 in the right ear at 1000, 2000, 3000 and 4000 Hertz respectively. The puretone average was 35. The Maryland CNC speech recognition score was 96 percent in the right ear. The examiner noted the Veteran's report that she can hardly hear. Applying the criteria for rating hearing loss to the findings of the VA audiometric evaluation results in designation of no worse than Level I hearing in the right ear based on application of the reported findings to Table VI. The findings warrant a 0 percent rating under Table VII. The audiometric evaluations do not show puretone thresholds meeting the definition of an exceptional pattern of hearing impairment that would require any alternate method of rating. At an October 2020 VA audiological examination, audiometric testing revealed that the hearing threshold levels in decibels were 25, 40, 50 and 80 in the right ear. The puretone average was 49. The Maryland CNC speech recognition score was 96 percent in the right ear. The examiner noted the Veteran's report of difficulty hearing especially on the right side. Applying the criteria for rating hearing loss to the findings of the VA audiometric evaluation results in designation of no worse than Level I hearing in the right ear based on application of the reported findings to Table VI. The findings warrant a 0 percent rating under Table VII. The audiometric evaluations do not show puretone thresholds meeting the definition of an exceptional pattern of hearing impairment that would require any alternate method of rating. The Board has considered the Veteran's description of the problems caused by her hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447 (2007). While she reported difficulty hearing, audiological evaluations do not demonstrate a compensable level of hearing loss in the right ear. The Board in no way discounts the difficulties the Veteran experiences as a result of her right ear hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule on the basis of the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In conclusion, an initial compensable disability rating for the service-connected right ear hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.