Citation Nr: 21028985 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-40 007 DATE: May 12, 2021 ORDER Service connection for osteoarthritis is denied. A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran has osteoarthritis that was incurred in or is causally related to his service. 2. The Veteran's bilateral hearing loss during the period on appeal qualifies as noncompensable through application of Table VII. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1968 to June 1970, to include service in Vietnam from June 1969 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February and March 2018 rating decisions. These matters were remanded by the Board in March 2019 for further development in addition to a service connection for hypertension claim which has since been granted and effectuated pursuant to a March 2021 rating decision. The service connection for osteoarthritis claim was reopened based on new and material evidence having been received and was remanded to the Agency of Original Jurisdiction (AOJ) for initial consideration of this claim on the merits. A March 2021 Supplemental Statement of the Case (SSOC) denied this claim on the merits and it is now properly back before the Board. The increased rating for bilateral hearing loss claim was remanded to clarify whether the private audiologist (Precision Hearing & Balance Center) that conducted an October 2017 audiometric examination of the Veteran performed a controlled speech discrimination (Maryland CNC) test. Since that time, the AOJ made two attempts in January 2021 to contact Precision Hearing & Balance Center to clarify whether the Maryland CNC test was used to generate his October 2017 audiometric results. In January 2021 the Veteran was also sent two separate correspondences notifying him that requests were made to this private audiologist for evidence pertinent to his claim but that he also had a responsibility for ensuring that VA receives this evidence. To date, there has been response or evidence received from Precision Hearing & Balance Center or the Veteran regarding the nature of audiometric testing performed in October 2017. Accordingly, the Board finds that reasonable efforts have been made to obtain clarification regarding this private examination. 38 C.F.R. § 3.159. Consequently, the Board finds that the March 2019 remand directives have been substantially complied and will proceed with adjudication based on the evidence of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Service connection for osteoarthritis Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Factual Background & Analysis February and March 2018 private treatment records from Hospital HIMA San Pablo reflect a diagnosis for arthrosis of the left hip. The first element of service connection, that there be evidence of a current disability, is satisfied. However, there is no lay or medical evidence which contends or substantiates that arthritic changes of the left hip were incurred in or are causally related (the "nexus element") to the Veteran's service. The Veteran's service connection claim therefore cannot be successful without lay or medical evidence that is probative as to these elements. 38 C.F.R. § 3.303. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with this claim. However, as discussed above, the low threshold standard of McLendon v. Nicholson, 20 Vet. App. 79 (2006), has not been met as there is no evidence that this disability was manifested during the Veteran's service, and there is nothing in the record indicating that such disability may be related to his service. Accordingly, the Board finds that there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C. § 5103A (a)(2) (2012) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159 (d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). 2. A compensable rating for bilateral hearing loss Legal Criteria Disability ratings are determined by the application of the rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where, as here, entitlement to service connection has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. See 38 C.F.R. § 4.7. Further, the medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify a disease and the disability therefrom expects the coordination of a rating with the impairment of function. 38 C.F.R. § 4.21. The rating of a hearing loss is a two-step process, and it is based on examination results that include a controlled speech discrimination test (Maryland CNC) and an audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), with the average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results are obtained, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and the pure tone threshold average, pursuant to Table VI (the first step). After a Roman numeral designation of auditory acuity level for each ear is determined under Table VI, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for the hearing impairment of each ear (the second step). See id. In addition, there is an alternative method of rating hearing loss, which is applied only in the instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on the pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at each of the frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, or where the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. In the latter situation, the higher Roman numeral, determined from Table VI or Table VIA, is elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86. Factual Background & Analysis The Veteran contends that he is entitled to a compensable rating for service-connected bilateral hearing loss. On January 2018 VA examination, audiometric testing revealed left ear speech discrimination of 94 percent, and the average puretone decibel loss in his left ear was 59 decibels. The Veteran's right ear showed a speech discrimination of 92 percent, and the average puretone decibel loss in his right ear was 54 decibels. Therefore, the VA examination revealed level II hearing loss in the Veteran's left ear and level I in the right ear under Table VI. Assessing the level II hearing loss in the left ear in combination with the level I hearing loss in the right ear under Table VII, the Board arrives at the rating of 0 percent. As mentioned, of record is an October 2017 private audiological examination conducted at Precision Hearing & Balance Center. Because the Board has been unable to confirm that Maryland CNC speech recognition testing was performed during this examination, the corresponding audiometric testing results are not afforded significant probative value and are outweighed by the VA examination audiometric readings of record for assessing the severity of the Veteran's bilateral hearing loss. See 38 C.F.R. § 4.85 (a). The Board, however, is mindful that the Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating. The Veteran is competent to report the symptoms of his hearing disability, and the Board has no basis to challenge the credibility of his lay contentions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on the audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's lay statements cannot establish that he has met the specific pure tone thresholds or speech discrimination percentages required for a compensable rating for bilateral hearing loss during any portion of the period on appeal. Moreover, the evidence of record does not suggest that he has exceptional hearing loss that warrants a Table VIA calculation. The Board also acknowledges that a VA audiological examination must dictate objective test results and describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Here, the VA audiologist recorded the Veteran's report that his bilateral hearing loss sometimes causes him difficulty understanding speech and the television in noisy environments. The Board, however, notes that such functional effects are insufficient to alter the outcome of the Board's analysis. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone each are a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Notably, the Veteran has not raised any other functional effect limitations caused by his hearing disability, and no such limitations have been reasonably raised by the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As the preponderance of the evidence is against the Veteran's claim for entitlement to an increased rating for his bilateral hearing loss, the doctrine of the benefit of the doubt is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.