Citation Nr: 21075558 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-62 206 DATE: December 20, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT At all times during the pendency of the appeal, the audiometric test results obtained during examination by a VA audiologist correspond to a numeric designation of no greater than II in the right ear and II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to October 1972. In September 2020, the Veteran and his spouse testified at a hearing before the undersigned in September 2020. In May 2021 the Board of Veterans' Appeal (Board) issued a decision the reopened the Veteran's claim of service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and thereafter remanded the claim of service connection for an acquired psychiatric disorder to include PTSD and the claim for a compensable rating for bilateral hearing loss. While these issues where in Remand status the regional office (RO) in June 2021 and September 2021 provided the Veteran with the VA examinations asked for by the May 2021 Board remand, obtained and associated with the claims file the Veteran's outstanding VA treatment records, and in a September 2021 rating decision granted the Veteran service connection for an acquired psychiatric disorder diagnosed as PTSD. Therefore, the Board finds that the claim of service connection for an acquired psychiatric disorder is no longer in appellate status, there was substantial compliance with the Remand, and another Remand is not required. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue); Also see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Entitlement to a compensable rating for bilateral hearing loss The Veteran asserts that his bilateral hearing loss meets the criteria for at least a compensable rating at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's bilateral hearing loss is rated as noncompensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc... With the above criteria in mind, the Board notes that when seen by a private examiner in March 2015 audiological examination showed that the Veteran had puretone thresholds of 20, 35, 40, and 35 decibels in the right ear and puretone thresholds 30, 35, 40, and 45 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 32.5 decibels in the right ear and 37.5 decibels in the left ear. Speech recognition ability was 90 percent in the right ear and 86 percent in the left ear. At the subsequent August 2015 VA examination, the Veteran had puretone thresholds of 40, 45, 45, and 45 decibels in the right ear and puretone thresholds 40, 40, 40, and 45 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 43.75 decibels in the right ear and 41.25 decibels in the left ear. Speech recognition ability was 96 percent in the right ear and 100 percent in the left ear. As the hearing loss's functional impact, the Veteran reported that he "[s]ays 'huh?' a lot... [and]...[t]urns the TV up ... [as well as has]... difficulty with [the] telephone." Thereafter, at the June 2021 VA examination the Veteran had puretone thresholds of 25, 45, 55, and 55 decibels in the right ear and puretone thresholds of 20, 40, 55, and 60 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 45 decibels in the right ear and 43.75 decibels in the left ear. Speech recognition ability was 96 percent in the right ear and 96 percent in the left ear. As the hearing loss's functional impact, the Veteran reported that "[m]y wife and I yell at each other [be]cause I can't hear. I have a hard time hearing the TV and it is louder than my wife would like.'" The Board also notes that treatment records document the Veteran's periodic complaints and treatment for his bilateral hearing loss. However, the Board finds that nothing in these treatment records show his adverse symptomatology to be worse than what was reported at the above audiological examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). This finding does not suggest that the Veteran does not have hearing problem, simply that this problem may not be compensable under VA law. With application of the above audiological test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's right ear hearing loss is assigned a numeric designation of II and the left ear hearing loss is assigned a numeric designation of II using the results from his private audiological examination and a numeric designation of I and the left ear hearing loss is assigned a numeric designation of I using the results from his VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board finds that these test scores show that the Veteran does not meet the criteria for a compensable rating for his bilateral hearing loss at any times during the pendency. See 38 C.F.R. § 4.85, Diagnostic Code 6100; Owens, supra. Therefore, the Board finds that the claim for a compensable rating for his service-connected bilateral hearing loss is denied under Table VII at all times during the pendency. Id; Fenderson, supra. As to 38 C.F.R. § 4.86(a), at the above examinations the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz). Consequently, the Board finds that 38 C.F.R. § 4.86(a) is not for application at all times during the pendency. Fenderson, supra. As to 38 C.F.R. § 4.86(b), at the above examinations the Veteran did not have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. Consequently, the Board finds that 38 C.F.R. § 4.86(b) is also not for application at all times during the pendency. Fenderson, supra. In reaching these conclusions, the Board has not overlooked the various lay statements found in the record. However, while the Veteran is competent to report on what he can see and feel and others are competent and credible to report on what they can see, the Board finds more probative the opinions provided by the medical expert at the audiological examinations as to the severity of his hearing loss than his lay claims. See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). While the Veteran may have issues with his hearing, the question is whether it meets a certain level of disability in order to obtain compensation. Nothing more. (Continued on the next page) In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that this doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.