Citation Nr: 0007055 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-17 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from February 1971 to February 1975. The appellant has reported unverified service from June 1961 to June 1965 and from November 1966 to February 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 1995 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The appellant appeared at a hearing held at the RO on June 20, 1996. A transcript of that hearing has been associated with the record on appeal. This case was remanded by the Board in August 1997 to schedule a hearing before a Member of the Board. On February 22, 1999, a hearing was held before the undersigned, who is a Member of the Board who will be making the decision in this case and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). A transcript of that hearing has been associated with the record on appeal. FINDINGS OF FACT 1. The appellant's claim is plausible, and sufficient evidence has been obtained for correct resolution of this claim. 2. The appellant's bilateral hearing loss is currently manifested by puretone threshold averages of 48-55 decibels in the right ear and 49-55 decibels in the left ear, with speech recognition ability of 96-100 percent for the right ear and 92-94 percent for the left ear, resulting in Level "I" hearing for the right ear and Level "I" hearing for the left ear. CONCLUSIONS OF LAW 1. The appellant has stated a well-grounded claim for an increased evaluation for his bilateral hearing loss, and VA has satisfied its duty to assist him in development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a compensable disability rating for the appellant's service-connected bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background On the authorized VA audiological evaluation in February 1995, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 30 65 70 LEFT 5 15 25 70 85 Puretone average was 48 in the right ear and 49 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The examiner stated that the results demonstrated a high- frequency sensorineural hearing loss bilaterally. In February 1996 a VA hearing aid evaluation was done. It is not marked as adequate for rating purposes. At the June 1996 hearing, the appellant testified that he had had difficulty finding employment that did not expose him to loud noises. He stated that he had difficulty hearing others, particularly women, speak. He stated that he had difficulty hearing certain tones and sounds, such as a wristwatch alarm. He stated that background noise impaired further his ability to hear. At the February 1999 hearing, the appellant testified that he had received new VA hearing aids in September or November of 1998 following an audiologic evaluation. He stated also that, since February 1995, he had undergone treatment or audiologic evaluation in July 1996 at Madigan Army Medical Center and twice at the American Lake VA facility in Tacoma, Washington, including the evaluation in September or November 1998. He stated that his hearing loss made it difficult for him to hear others, especially women, speak. He stated that he had had difficulty at work and in school. He stated that he had difficulty understanding his spouse and his stepdaughter. He stated that he rarely watched television because he required the volume of the television to be too loud to be comfortable for other family members. At a July 1999 VA audio examination, the appellant wore VA hearing aids in both ears. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 40 75 75 LEFT 10 20 40 75 85 Puretone average was 55 for each ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. The examiner stated that the results demonstrated a moderately severe sensorineural hearing loss in the right ear and a moderate-severe to severe sensorineural hearing loss in the left ear. II. Legal Analysis The appellant's increased rating claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the appellant's contentions regarding the increased severity of his service-connected bilateral hearing loss. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). All relevant facts have been properly developed, and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Further, the instructions contained in the August 1997 Remand from the Board have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a (1999) (Schedule). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (1999). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). 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 the rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. "Reasonable doubt" means a doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). The appellant's bilateral hearing loss is rated under Diagnostic Code 6100. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999), including the rating criteria for evaluating a hearing loss disorder. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 1991). Therefore, the Board must evaluate the appellant's claim for an increased rating from June 10, 1999, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. In this case, neither rating criteria can be more favorable to the appellant's claim since the criteria are identical. The amended regulations did incorporate some explanatory comments concerning VA's method of evaluating a hearing loss disorder, and these comments will be discussed where appropriate. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (1999). Under these criteria, evaluations of bilateral hearing loss range from noncompensable 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 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d) (1999). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b), (e) (1999). Tables VI and VII are reproduced below. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). TABLE VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination Percent of Discrimination Average Puretone Decibel Loss 0-41 42- 49 50- 57 58- 65 66- 73 74- 81 82- 89 90- 97 98+ 92- 100 I I I II II II III III IV 84- 90 II II II III III III IV IV IV 76- 82 III III IV IV IV V V V V 68- 74 IV IV V V VI VI VII VII VII 60- 66 V V VI VI VII VII VIII VIII VIII 52- 58 VI VI VII VII VIII VIII VIII VIII IX 44- 50 VII VII VIII VIII VIII IX IX IX X 36- 42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VII Percentage Evaluations for Hearing Impairment LEVEL OF HEARING IN BETTER EAR XI 100 * X 90 80 IX 80 70 60 VII I 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VII I VII VI V IV III II I LEVEL OF HEARING IN POORER EAR The appellant has undergone VA audiometric examinations for compensation purposes in February 1995 and July 1999. The results of those audiograms, as indicated above, showed that the appellant's hearing loss is properly evaluated as zero percent disabling. Based on a 96 percent speech recognition score and a 48-decibel puretone threshold average as shown in February 1995, Table VI indicates a designation of Level "I" for the right ear. Based on a 92 percent speech recognition score and a 49-decibel puretone threshold average as shown in February 1995, Table VI indicates a designation of Level "I" for the left ear. When applied to Table VII, the numeric designations of "I" for the better ear and "I" for the poorer ear translated to a zero percent evaluation. Based on a 100 percent speech recognition score and a 55- decibel puretone threshold average as shown in July 1999, Table VI indicates a designation of Level "I" for the right ear. Based on a 94 percent speech recognition score and a 55-decibel puretone threshold average as shown in July 1999, Table VI indicates a designation of Level "I" for the left ear. Again, when applied to Table VII, the numeric designations of "I" for the better ear and "I" for the poorer ear translated to a zero percent evaluation. Therefore, the appellant's service-connected hearing loss is properly assigned a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII (1999). The appellant also underwent a VA audiometric examination in February 1996. However, that examination was an examination for hearing aid evaluation purposes and, consequently, is inadequate for rating purposes. The amended regulations added two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first new provision, that of 38 C.F.R. § 4.86(a), indicates that if puretone thresholds in any four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). The veteran's hearing loss does not fit within this provision. The second new provision, that of 38 C.F.R. § 4.86(b), indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision is likewise inapplicable to the veteran's hearing loss disability. Although the Board sympathizes with the appellant's difficulties due to hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the preponderance of the evidence is against his claim for a compensable disability rating for bilateral hearing loss. ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals