Citation Nr: 0001149 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 99-02 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent assigned in conjunction with the original grant of service connected for tinnitus. 2. Entitlement to a rating in excess of 0 percent (non- compensable) assigned in conjunction with the original grant of service connected for right ear hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Bunch, Associate Counsel INTRODUCTION The veteran had active military duty from June 1980 to July 1984. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 1998 rating decision by the Atlanta, Georgia, regional office (RO) of the Department of Veterans' Affairs (VA). In the April 1998 rating decision the RO granted service connection for tinnitus and for right ear hearing loss and assigned rating percentages of 10 percent and 0 percent (non- compensable), respectively. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The tinnitus is persistent. 3. Hearing loss in the service connected right ear is manifested by an average pure tone threshold of 20 decibels and speech discrimination ability of 96 percent correct; and the veteran is not totally deaf in the nonservice connected left ear. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Codes 6260 (1999). 2. The criteria for a compensable evaluation for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Codes 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, his claim is plausible. This finding is based in part on the veteran's assertion that his hearing loss disability has increased in severity. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), the Board is obligated to assist the veteran in the development of his claim. Upon a review of the records, it is the opinion of the Board that all evidence necessary for adjudication of his claim has been obtained. I. FACTUAL BACKGROUND Service Medical Records (SMR's) show that the veteran was evaluated for right ear hearing loss and tinnitus. A VA examination was conducted in March 1998. At that time the veteran complained of hearing loss and ringing in his ears constantly. He reported a little pain in his ears every now and then. The audiogram showed that the pure tone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hz were 5, 5, 15, and 55 decibels, respectively. The average puretone threshold was 20 decibels with a discrimination ability of 96 percent correct. The pure tone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hz were 5, 5, 5, and 5 Hz, respectively. The average puretone threshold was 5 decibels with a discrimination ability of 100 percent correct. The assessment was moderate high frequency (4K Hz) sensorineural hearing loss with excellent speech recognition and normal hearing in the left ear. Also reported was constant tinnitus. A January 1999 private audiometric examination showed hearing loss in the right ear. During his January 1999 RO hearing the veteran stated that he is a full time college student and that when his professors are speaking he has to make sure his right ear is parallel with the wall. The veteran holds the telephone to his left ear to get around his hearing difficulty. The veteran also states that he works with children and he has to pay closer attention to them when they speak softly. The veteran stated that an extra-schedular rating should apply since the veteran states that he believes his sleeping is affected by the tinnitus, and that his right ear hearing loss has deteriorated. An October 1999 private examination showed that the veteran was diagnosed with status post acoustic trauma with resultant noise induced sensorineural hearing loss with resultant tinnitus. The veteran had high frequency hearing loss as noted on the right with marked loss starting at 4000 Hertz. II. ANALYSIS 1. Increased Rating for Tinnitus. Disability evaluations are determined by the application of a schedule of ratings, which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall 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 (1999). Pursuant to 38 C.F.R. § 4.87a, Diagnostic Code 6260, a ten (10) percent evaluation is assigned when the tinnitus is persistent as a symptom of head injury, concussion, or acoustic trauma. The assigned evaluation of 10 percent represents the maximum schedular evaluation available for this disability. As such, the Board finds that a higher rating is not warranted. 2. Increased Rating for Right Ear Hearing Loss. During the pendency of this appeal, VA issued new regulations for evaluating disabilities affecting auditory impairment. 64 Fed. Reg. 25202 (1999). They were effective June 10, 1999. Where laws or regulations change, after a claim has been filed or reopened, and before administrative or judicial process has been concluded, the version most favorable to the veteran applies, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991). While the regulations noted above had been published and became effective during the pendency of this appeal, they were not applied to the present claim as the case was certified prior to the promulgation of the regulations. A comparison to the previous version of the regulation does not disclose any pertinent change to the regulations that would affect the outcome of this decision, however. See 38 C.F.R. § 4.85, 4.87, 4.87a (1999). Therefore, the Board concludes that the veteran is not prejudiced by application of the current criteria to his claim since there are no substantive changes in the regulation as relates to his claims. That is, the differences between the former criteria and the revised criteria in cases such as the one on appeal are relatively minor and do not effect the outcome of the appeal; thus, the Board finds that the veteran has not been prejudiced by applying the new regulations in the first instance. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Evaluations of unilateral defective hearing range from noncompensable to 10 percent based on the 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 puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from defective hearing, the provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I for essentially normal acuity through level XI for profound deafness. Tables VI and VII as set forth in § 4.85 are used to calculate the rating to be assigned. In situations where service connection has been granted only for defective hearing involving one ear, and the appellant does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service- connected ear is at level X or XI. 38 U.S.C.A. § 1160(a) (West 1999); 38 C.F.R. §§ 4.85, 4.87, Codes 6100 to 6101 (1999). The evaluations derived from the schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1999). Hearing loss claims are evaluated by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluation. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Pursuant to 38 C.F.R. § 4.85(a) (1999), examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. A numeric designation of impaired efficiency is assigned based upon the results of the above-mentioned tests. 38 C.F.R. § 4.85, 4.87 (1999). The April 1998 VA audiological examination shows a pure tone threshold average in the service connected right ear of 20 decibels with speech recognition ability of 100 percent. Such findings correspond to auditory Level I designation. The nonservice- connected left ear is not totally deaf. Thus, a compensable rating is not warranted. 38 C.F.R. Part 4, Diagnostic Code 6100 (1999). 3. Extra-schedular Consideration In exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1998). There is no indication of marked interference in the pursuit of his college education or periods of frequent hospitalization. Therefore, the Board concludes that extra- schedular consideration under 38 C.F.R. § 3.321(b) is not warranted in this case. In rendering these decision, the Board does not find that any of the other applicable provisions of Chapters 3 and 4, 38 C.F.R. (1998), which provide a basis for granting an increased rating for the veteran's service-connected right ear hearing loss and tinnitus. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board further finds that the ratings currently in effect are the highest warranted during the appeal period for both tinnitus and right ear hearing loss. Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). ORDER Entitlement to a rating in excess of 10 percent tinnitus and a rating in excess of 0 percent (non-compensable) for right ear hearing loss is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals