Citation Nr: 21032754 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-39 270 DATE: May 27, 2021 ORDER Prior to November 20, 2020, a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDING OF FACT Prior to November 20, 2020, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW Prior to November 20, 2020, the criteria for a compensable rating for bilateral hearing loss had not 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 air service from December 1951 to November1955. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Air National Guard of Puerto Rico from December 1951 to December 1975. This case initially came before the Board of Veterans' Appeals on appeal from a January 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In an August 2019 decision, the Board denied a request to reopen a claim for service connection for a heart disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated that portion of the Board's decision and remanded the matter for additional consideration and readjudication. In August 2019, the Board remanded the claim for an increased rating for a bilateral hearing loss disability for additional development. In a November 2020 rating decision, the RO increased the rating to 100 percent effective November 20, 2020. However, a higher rating is available prior to November 20, 2020, and the Veteran is presumed to seek the maximum available benefits. Therefore, the issue of entitlement to a compensable rating for bilateral hearing loss disability prior to November 20, 2020, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2021, the Board remanded the appeal. As to the adjudicated matter, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). See also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). 1. Entitlement to a compensable rating for bilateral hearing loss prior to November 20, 2020. A February 2010 rating decision granted service connection for bilateral hearing loss disability and assigned a noncompensable rating from June 11, 2009. In September 2016, VA received a claim for increase. See VA Form 21-526EZ (September 2016). A January 2017 rating decision denied the claim. This appeal arises from the Veteran's disagreement with that decision. See Rating Decision (January 2017). See NOD (June 2017); Form 9 (July 2017). The Veteran contends that the severity of his hearing loss warrants a higher rating that assigned, noting he had two surgeries to repair his severe hearing loss but still had hearing problems. See NOD (June 2017). The Board concludes that, prior to November 20,2020, the preponderance of the evidence is against finding that a compensable rating for hearing loss is warranted. 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A January 2017 VA examination reveals that the Veteran reported difficulty hearing conversational speech especially when communicating in noisy environments. 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: [January 2017] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 85 85 65 92% LEFT 20 45 70 80 54 94% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board acknowledges that the Veteran believes his hearing acuity was worse than evaluated prior to November 20, 2020, including difficulty hearing conversational speech, especially in noisy environments. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Here, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss prior to November 20, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. REASONS FOR REMAND 2. Entitlement to service connection for a heart disability. The Veteran contends that service connection is warranted for his heart disability, now diagnosed as arrhythmia and coronary artery disease (CAD), because the disability had its onset during his service in the National Guard, including periods of active duty, for which he received active duty points, and he has been receiving treatment since. See NOD (June 2017). He also stated that, during service in the flight lines as an Air Technician in Korean and Japan, he was exposed to harmful and toxic liquids, radar waves and microwaves as well as sun. See Correspondence (August 2009). The Board finds that a remand is necessary to obtain outstanding treatment records. 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). A review of the Veteran's VA treatment records discloses that medical records relevant to the appeal were associated with VA medical records system using Vista-Imaging. However, copies of these records are not included in the claims file or otherwise associated with the available VA treatment records. Therefore, remand is necessary to associate copies of these scanned record with the claims file. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from March 2021 to the Present. Associate copies of all treatment records that have been made available via the VISTA Imaging system with the Veteran's claims folder. 2. Conduct any other development deemed necessary then readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.