Citation Nr: 21022965 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-36 599 DATE: April 19, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for bilateral hearing loss from December 7, 2010, is granted. FINDING OF FACT From December 7, 2010, the Veteran’s service-connected bilateral hearing loss has been manifested by hearing acuity, at its worst, of Level IV in the right ear and Level VII in the in the left ear. CONCLUSION OF LAW From December 7, 2010, the criteria for a rating of 20 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1965 to August 1968. In September 2020, the Board of Veterans’ Appeal (Board) remanded the appeal for further development. In this regard, the Board finds that the post-Remand development complied with the Remand because while the appeal was before the regional office (RO) it obtained and associated with the record all identified and available VA and private treatment records. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds that the post-Remand development complied with the Remand because while the appeal was before the RO in provided the Veteran with a VA examination in March 2021 which is adequate to rate his disability under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Rating Claim 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 a Diagnostic Code. 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). Separate higher or lower compensable 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); 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 currently rated as non compensable from December 7, 2010, and 20 percent disabling from January 11, 2018, under 38 C.F.R. §§ 4.85, 4.86, DC 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… The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Simply stated, this means that while the Veteran may have hearing problems (this fact is not in dispute), whether he has hearing loss warranting compensation is based on certain objective criteria. The only question is the degree of disability. With the above criteria in mind, the Board notes that the Veteran’s file contains several VA audiological examinations. At a VA audiological examination in September 2009, the examiner found puretone thresholds of 15, 35, 75, and 90 decibels in the right ear and puretone thresholds of 20, 40, 75, and 65 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 54 decibels in the right ear and 50 decibels in the left ear. No Maryland CNC speech recognition scores were reported. At a VA audiological examination in February 2011, the examiner found puretone thresholds of 15, 35, 75, and 90 decibels in the right ear and puretone thresholds of 15, 35, 75, and 70 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 49 decibels in the right ear and 54 decibels in the left ear. Speech recognition ability was 80 percent in the right ear and 80 percent in the left ear. At a VA audiological examination in October 2014, the examiner found puretone thresholds of 15, 45, 85, and 95 decibels in the right ear and puretone thresholds of 15, 40, 75, and 70 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 60 decibels in the right ear and 50 decibels in the left ear. No Maryland CNC speech recognition scores were reported. At a private audiological examination in February 2016, the examiner found puretone thresholds of 15, 40, 75, and 90 decibels in the right ear and puretone thresholds of 15, 35, 70, and 70 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 55 decibels in the right ear and 48 decibels in the left ear. Speech recognition ability was 88 percent in the right ear and 96 percent in the left ear. At a VA audiological examination in January 2018, the examiner found puretone thresholds of 20, 45, 85, and 95 decibels in the right ear and puretone thresholds of 20, 40, 80, and 75 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 61 decibels in the right ear and 54 decibels in the left ear. No Maryland CNC speech recognition scores were reported. At a VA audiological examination in August 2019, the examiner found puretone thresholds of 25, 50, 80, and 95 decibels in the right ear and puretone thresholds of 25, 45, 80, and 75 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 62 decibels in the right ear and 56 decibels in the left ear. No Maryland CNC speech recognition scores were reported. At another VA audiological examination in August 2019, the examiner found puretone thresholds of 30, 50, 85, and 95 decibels in the right ear and puretone thresholds of 25, 45, 80, and 75 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 65 decibels in the right ear and 56 decibels in the left ear. Speech recognition ability was 82 percent in the right ear and 58 percent in the left ear. At a VA audiological examination in March 2021, the examiner found puretone thresholds of 20, 45, 80, and 85 decibels in the right ear and puretone thresholds of 15, 45, 75, and 75 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 58 decibels in the right ear and 53 decibels in the left ear. Speech recognition ability was 88 percent in the right ear and 80 percent in the left ear. Tellingly, the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture the Board finds that, at its’ worst, applying the above test results to Table VI and VIA of the Rating Schedule reveals numeric designations of IV in the right ear and Level VII in the in the left ear. When hearing loss is Level IV in one ear and Level VII in the other, a 20 percent rating is assigned under Table VII of the Ratings Schedule. See 38 C.F.R. §§ 4.85, 4.86, DC 6100; Owens, supra. The assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria. Accordingly, the competent evidence of record shows that the Veteran’s bilateral hearing loss meets the criteria for a 20 percent rating, but no higher, under the schedular criteria at all times from December 7, 2010. See 38 C.F.R. §§ 4.85, 4.86, DC 6100; Fenderson, supra; Tatum, supra. In reaching the above conclusion, the Board has not overlooked 38 C.F.R. § 4.86(a) and 38 C.F.R. § 4.86(b). However, the Board finds that neither help the Veteran obtain a rating in excess of 20 percent for his bilateral hearing loss at any time during the appeal because at none the above examination did the Veteran have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) and/or thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 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). In reaching this conclusion, the Board has not overlooked the various lay statements found in the record. However, while the Veteran is competent and credible 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 examination 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 (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 for a rating in excess of 20 percent for the bilateral hearing loss, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.