Citation Nr: 0001601 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-14 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from October 1950 to October 1952, and from February 1956 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Atlanta, Georgia, regional office (RO) of the Department of Veterans Affairs (VA). The veteran's claim for entitlement to service connection for tinnitus was denied in an April 1999 rating decision. He has not submitted a Notice of Disagreement for this issue, and it is not on appeal to the Board. FINDING OF FACT The veteran currently has level I hearing for the right ear, and level II hearing for the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for the veteran's bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.87, Code 6100 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he is entitled to a compensable evaluation for his bilateral hearing loss. He states that he has experienced difficulty with his hearing for many years. Currently, he has to listen to the television at a very high volume in order to understand what is being said. Initially, the Board finds that the veteran claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). An allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed to their full extent and that the VA has met its duty to assist. White v. Derwinski, 1 Vet. App. 519 (1991); Godwin v. Derwinski, 1 Vet. App. 419 (1991). The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The record indicates that entitlement to service connection for bilateral hearing loss was established in a June 1995 rating decision. A zero percent evaluation was assigned for this disability, which currently remains in effect. The zero percent evaluation was confirmed in a November 1997 rating decision. The veteran submitted a Notice of Disagreement with this decision in November 1997, which led to the current appeal. The regulations governing the evaluation of hearing loss were changed during the course of the veteran's appeal. These changes became effective June 10, 1999. When a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has not had the opportunity to evaluate the veteran's claim under the new regulations. However, in this case, the Board believes that a remand to afford the RO an opportunity to review the veteran's claim is not necessary. The pertinent regulations do not contain any substantive changes that affect this particular case, but add certain provisions that were already the practice of the VA. 38 C.F.R. § 4.85. The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been changed. The veteran has already been afforded the hearing tests required by the new regulations, and these were used by the RO in the evaluation of his claim. Therefore, the Board is able to evaluate this claim under the new regulations without prejudice to the veteran, and will proceed with consideration of the appeal. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Under the regulations in effect prior to June 10, 1999, the evaluations of defective hearing range from zero percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85 (1998). Under the regulations in effect from June 10, 1999, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (1999). The veteran was afforded a VA audiological examination in November 1994. He had pure tone thresholds of 55, 35, 65, and 90 decibels for the right ear at the frequencies of 1000, 2000, 3000, and 4000 Hertz. The pure tone thresholds for the left ear were 45, 50, 85, and 95 decibels at the same frequencies. The average pure tone threshold for the right ear was 61 decibels, and speech discrimination was 96 percent. The average pure tone threshold for the left ear was 68 decibels, and speech discrimination was 92 percent. This constitutes level II hearing for the right ear, and level II hearing for the left ear. When applied to the tables within the regulations, this merits a zero percent evaluation under both the old and new regulations. 38 C.F.R. § 4.85, Code 6100 (1998); 38 C.F.R. § 4.85, Code 6100 (1999). The veteran was afforded an additional audiological examination in August 1997. He had pure tone thresholds of 45, 35, 60, and 85 decibels for the right ear at the frequencies of 1000, 2000, 3000, and 4000 Hertz. The pure tone thresholds for the left ear were 40, 50, 75, and 90 decibels at the same frequencies. The average pure tone threshold for the right ear was 56 decibels, and speech discrimination was 96 percent. The average pure tone threshold for the left ear was 63 decibels, and speech discrimination was 96 percent. This constitutes level I hearing for the right ear, and level II hearing for the left ear. When applied to the tables within the regulations, this merits a zero percent evaluation under both the old and new regulations. 38 C.F.R. § 4.85, Code 6100 (1998); 38 C.F.R. § 4.85, Code 6100 (1999). The Board finds that entitlement to an increased evaluation for the veteran's bilateral hearing loss is not warranted. The Board notes the veteran's sincere belief that his hearing loss is severe enough to merit a compensable evaluation, and has carefully considered his testimony before the undersigned member of the Board at the November 1999 hearing. However, the evidence clearly weighs against the assignment of a compensable evaluation in this case. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss. The evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The only possible interpretation of the most recent evidence is that the veteran's hearing loss is at level I for the right ear, and level II for the left ear, and that, therefore, a compensable rating is not warranted. The veteran's hearing loss has not progressed significantly in the recent past, when comparing the audiological evaluations from 1994 and 1997, and in fact the degree of impairment was less on the most recent audiometric testing. The provisions of 38 C.F.R. § 4.86 have been considered, but an exceptional pattern of hearing was not indicated by the findings of the November 1994 or August 1997 VA audiometric examination. Therefore, entitlement to a compensable evaluation for bilateral hearing loss is not demonstrated. ORDER Entitlement to an increased (compensable) evaluation for bilateral hearing loss is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals