Citation Nr: 21027921 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-44 044A DATE: May 7, 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 with the United States Army from March 1968 to March 1970 with the award of the Combat Infantry Badge and Purple Heart due to his service in the Republic of Vietnam. In a November 2018 decision by a Veterans' Law Judge other than the undersigned the Board of Veterans' Appeal (Board) denied the Veteran's claims of service connection for right ear hearing loss and a compensable rating for left ear hearing loss. The Veteran appealed this November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the November 2018 Board decision. In May 2020, the Board remanded the appeal. A subsequent August 2020 rating decision granted service connection for right ear hearing loss. Therefore, the Board finds that this service connection claim is no longer in appellate status and the rating claim is as characterized above. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Post-JMR and Remand Compliance The Board finds that the post-Remand development both addressed the concerns raised in the JMR and complied with the Remand because the VA examination dated in July 2020 provides VA with medical evidence adequate to rate the Veteran's bilateral hearing loss under all applicable rating criteria. 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 concerns raised by the JMR and the Remand because while the appeal was in Remand status all identified and available VA and private treatment records, including from the VA Medical Center in Fayetteville, North Carolina, 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. 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 at the August 2013 VA examination the Veteran had puretone thresholds of 15, 10, 10, and 25 decibels in the right ear and puretone thresholds of 15, 15, 15, and 40 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 15 decibels in the right ear and 21.25 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 has difficulty communicating with others because of his hearing loss; he does not always hear when someone speaks to him and he needs to be facing the person who is speaking and be in close proximity to them in order to understand them . Subsequently, at the July 2020 VA examination the Veteran had puretone thresholds of 20, 15, 20, and 40 decibels in the right ear and puretone thresholds of 25, 25, 30, and 50 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 23.75 decibels in the right ear and 32.5 decibels in the left ear. Speech recognition ability was 84 percent in the right ear and 84 percent in the left ear. Lastly, it was reported that the Veteran's bilateral hearing loss did not have a functional impact. The Board also notes that treatment records document the Veteran's periodic complaints and treatment for 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 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). 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, at its worst, is assigned a numeric designation of II and the left ear hearing loss is assigned a numeric designation of II. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss at any times during the pendency. 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. See 38 C.F.R. § 4.85, Diagnostic Code 6100; Fenderson, supra. As to 38 C.F.R. § 4.86(a), at the above examination 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, 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 examination 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, 38 C.F.R. § 4.86(b) is not for application at all times during the pendency. Fenderson, supra. In reaching this conclusion, the Board has also not overlooked March 2020 audiological examination from the UNC Ear, Nose, and Throat in which it was reported that the Veteran had puretone thresholds of 40, 45, 55, and 65 decibels in the right ear and puretone thresholds of 35, 40, Not Reported, and 60 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 51.25 decibels in the right ear and Not Reported decibels in the left ear. Speech recognition ability was 72 percent in the right ear and 80 percent in the left ear. However, the Board finds that it may not use the results from this examination when rating the severity of the Veteran's hearing loss because the examiner did not report the appellant's puretone threshold at 3000 Hertz in the left ear and it is not possible to tell from the examination if it was conducted using the Maryland CNC as required by 38 C.F.R. § 4.85. See Owens, supra. In reaching this conclusion, the Board has also 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 VA 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 in order to obtain compensation. Nothing more. 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. 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.