Citation Nr: 21029975 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-18 604A DATE: May 17, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for bilateral hearing loss from August 7, 2014, is granted. FINDING OF FACT From August 7, 2014, the Veteran's bilateral hearing was manifested by, at its' worst, hearing acuity of Level VII in the right ear and Level VII in the left ear. CONCLUSION OF LAW From August 7, 2014, the criteria for a 40 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from the October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the appeal. Post-Remand Compliance The Board finds that the post-Remand development complied with the Remand because the VA examinations dated in December 2019 and February 2021 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 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 contends that his bilateral hearing loss warrants higher ratings throughout the period on 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 from August 7, 2014, to December 13, 2019, 30 percent disabling beginning December 13, 2019, and 40 percent disabling beginning February 8, 2021, 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 October 2014 VA examination the Veteran reported difficulty hearing conversations and the television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 70 70 75 64 94 LEFT 40 60 75 75 63 88 A December 2019 VA examination reveals that the Veteran reported that his hearing loss interferes with conversations, especially at work with his boss. 38 C.F.R. § 4.10; Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 75 80 85 71 70 LEFT 60 80 80 85 76 60 A February 2021 VA examination reveals that the Veteran reported difficulty hearing others. 38 C.F.R. § 4.10; Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 65 80 80 90 79 60 LEFT 75 80 85 85 81 64 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. 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 and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above VA audiological test results and with applying these tests 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 VII and the left ear hearing loss is assigned a numeric designation of VII when tested in February 2021. See Owens, supra. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Therefore, the Board finds that the criteria for a 40 percent rating, but no higher, for bilateral hearing loss have been met at all times from the date the Veteran filed his claim on August 7, 2014. See Tatum, supra; Young, supra; Hart, supra. In reaching this conclusion, the Board has not overlooked the fact that an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears at the December 2019 and February 2021 VA examinations. However, the Board finds that these exceptional patterns of hearing impairment do not result in a rating in excess of 40 percent for the Veteran's bilateral hearing loss at any time from August 7, 2014. See Owens, supra. The Board has reached this conclusion because applying the December 2019 test results to Table VIA yields level VI in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Likewise, the Board has reached this conclusion because applying the December February 2021 test results to Table VIA yields Level VII in the right ear and level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his bilateral hearing loss at any time from August 7, 2014, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Court has held that a claim for a total rating based on unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not asserted that he is totally unemployable as the result of his service connected disability. Accordingly, the Board concludes that a claim for TDIU has not been raised. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.