Citation Nr: 21024944 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-23 850 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT For the entire rating period on appeal the preponderance of the evidence shows that the audiometric test results obtained during examination by a VA audiologist correspond to a numeric designation of no greater than Level XI hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met at all times during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from July 1973 to July 1976 and active duty service in the United States Marine Corps from October 1976 to October 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision, in which a Department of Veterans Affairs (VA) Regional Office (RO), in relevant part, continued the 10 percent disability rating assigned to the Veteran’s service-connected bilateral hearing loss. This matter was previously before the Board in October 2018 and February 2021 and it was remanded both times for further evidentiary development. Post-Remand Compliance In this regard, the Board finds that the post-Remand development complied with the Remand because the March 2021 VA examination provides VA with medical evidence adequate to rate the Veteran’s disability under all applicable rating criteria. See Owens, supra; Also see 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); 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 Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. 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). There is no basis to remand this appeal. The Rating Claim The Veteran asserts that his bilateral hearing loss meets the criteria for a higher rating at all times during the pendency of the appeal. 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 10 percent disabling 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 the Veteran underwent a VA examination in February 2013. Pure tone thresholds for the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 95 105+ 105+ LEFT 35 40 55 60 The pure tone average was 98 (97.5) decibels in the right ear and 48 (47.5) decibels in the left ear. Speech recognition scores were 0% in the right ear and 92% in the left ear. Such examination findings translate to a level XI impairment in the right ear and a Level I impairment in the left ear. 38 C.F.R. § 4.85, Table VI. However, the evidence demonstrates an exceptional pattern of hearing impairment in the Veteran’s right ear under 38 C.F.R. § 4.86(a). Applying Table VIA produces a Level X impairment in the right ear. Therefore, the higher evaluation under Table VI will be used. Applying Table VII, Diagnostic Code 6100, this equates to no more than a 10 percent rating. A March 2013 treatment note shows that the Veteran was subsequently fitted for a Phonak wireless BiCros hearing aid system. Another VA examination was conducted in May 2014. Pure tone thresholds for the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 100 105+ 105+ LEFT 35 45 60 60 The pure tone average was 99 (98.75) decibels in the right ear and 50 decibels in the left ear. Speech recognition scores were 0% in the right ear and 88% in the left ear. Such examination findings translate to a level XI impairment in the right ear and a Level II impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Once again, the evidence demonstrates an exceptional pattern of hearing impairment in the Veteran’s right ear under 38 C.F.R. § 4.86(a). Applying Table VIA produces a Level X impairment in the right ear. Therefore, the higher evaluation under Table VI will be used. Applying Table VII, Diagnostic Code 6100, this equates to no more than a 10 percent rating. Another VA examination was conducted in March 2021. Pure tone thresholds for the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 95 100+ 100+ LEFT 40 45 55 65 The pure tone average was 95 decibels in the right ear and 51 (51.25) decibels in the left ear. Speech recognition scores were 0% in the right ear and 96% in the left ear. Such examination findings translate to a level XI impairment in the right ear and a Level II impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Yet again, the evidence demonstrates an exceptional pattern of hearing impairment in the Veteran’s right ear under 38 C.F.R. § 4.86(a). Applying Table VIA produces a Level IX impairment in the right ear. Therefore, the higher evaluation under Table VI will be used. Applying Table VII, Diagnostic Code 6100, this equates to no more than a 10 percent rating. The Veteran’s private treatment records show a September 2019 audiological examination. The pure tone averages were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 95 105 105 LEFT 40 45 55 65 The pure tone average was 98 (97.5) decibels in the right ear and 51 (51.25) decibels in the left ear. Speech recognition scores were 0% in the right ear and 72% in the left ear. However, this treatment records do not indicate whether the Maryland CNC was used, as is required under 38 C.F.R. § 4.85(a). Nonetheless, disregarding the speech recognition scores, the examination results indicate an exceptional pattern of hearing loss in the Veteran’s right ear under 38 C.F.R. § 4.86(a), and application of Table VIA renders a Level X hearing acuity in the right ear. The evidence does not show an exceptional pattern of hearing loss in the left ear and the examining physician did not certify that use of the Maryland CNC was not appropriate. Therefore, Table VIA may not be used to assign an acuity level for the left ear. See 28 C.F.R. §§ 4.85(c), 4.86. Accordingly, the Board is not able to utilize these examinations in its assessment of hearing impairment for VA purposes. See Owens, supra. In this regard, the Board notes that the recorded pure tone average for the Veteran’s right ear is the same as in the February 2013 examination and lower than in the May 2014 examination, and the recorded pure tone average for the Veteran’s left ear is the same as in the March 2021 examination. Thus, even if considered, the September 2019 private audiological examination does not show any increase in hearing loss compared to the other examinations. Id. The Board has also considered the VA treatment record dated in May 2012 which states that the Veteran had severe to profound sensorineural hearing loss and poor word recognition in the right ear and mild to severe sensorineural hearing loss and good word recognition in the left ear. Additionally, a February 2020 VA audiology treatment note indicates hearing loss of up to 15 decibels in frequencies below 1500 Hertz. However, no records could be found showing audiogram results from May 2012 or February 2020 and VA notified the Veteran of this fact in letters dated in August 2020 and September 2020. The Veteran received further notice of this absence of records in a September 2020 Supplemental Statement of the Case (SSOC) and the Board’s February 2021 remand. Therefore, the Board finds that these treatment records may not be used to assess the Veteran’s hearing impairment for VA purposes. See Owens, supra. The Board acknowledges the impact of the Veteran’s hearing loss on his daily activities and VA’s obligation to resolve all reasonable doubt in the Veteran’s favor. However, given that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. at 349; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Moreover, the Board finds the above VA audiological findings more probative than the Veteran’s lay claims to the contrary because as a lay person he does not have the required training to provide medical opinions as to its severity even though he can report on what comes to him via his own senses (see Davidson, supra) and as medical experts the Board finds the opinions by the VA examiners have greater probative value (see 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)). Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for bilateral hearing loss at any time during the appeal. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100; Fenderson, supra. 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 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 A. Pratt 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.