Citation Nr: 0003566	
Decision Date: 02/11/00    Archive Date: 02/15/00

DOCKET NO.  97-34 717	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1. Entitlement to service connection for right ear hearing 
loss.  

2. Entitlement to an initial compensable rating for left ear 
hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel



INTRODUCTION

The veteran served on active duty from May 1959 to May 1979.  
This case comes to the Board of Veterans' Appeals (Board) on 
appeal of a June 1997 rating decision of the New Orleans, 
Louisiana, Regional Office (RO) of the Department of Veterans 
Affairs (VA).


FINDINGS OF FACT

1.  There has been no establishment of an etiologic nexus 
between currently demonstrated right ear hearing loss and 
service.

2.  The medical evidence of record shows the veteran has 
Level IV auditory acuity, left ear.


CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for right 
ear hearing loss is not well grounded.  38 U.S.C.A. § 5107 
(West 1991).

2.  The criteria for an initial compensable rating for left 
hear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 
5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 
6100 (1998); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection for Right Ear Hearing Loss

In order to establish service connection for a claimed 
disability, the facts, as shown by the evidence, must 
demonstrate that a particular disease or injury resulting in 
current disability was incurred during active service or, if 
preexisting active service, was aggravated therein.  
38 U.S.C.A. §§ 1110, 1131 (West 1991).  In addition, certain 
chronic diseases, including sensorineural hearing loss, may be 
presumed to have been incurred during service if they first 
become manifest to a compensable degree within one year of 
separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 
1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999).  If a 
condition noted during service is not shown to be chronic, 
then generally a showing of continuity of symptoms after 
service is required for service connection.  38 C.F.R. § 
3.303(b) (1999).

The threshold question to be answered concerning this issue 
is whether or not the veteran has presented evidence of a 
well-grounded claim; that is, one which is plausible, 
meritorious on its own, or capable of substantiation.  
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 
(1990).  In the absence of evidence of a well-grounded claim, 
there is no duty to assist the veteran in developing the 
pertinent facts and the claim must fail.  Epps v. Gober, 
126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. 
Ct. 2348 (1998).

In order for a claim to be well grounded, there must be 
competent evidence of current disability, evidence of the 
incurrence or aggravation of a disease or injury during 
service, and a nexus between the in-service injury or disease 
and the current disability.  That means that for a claim of 
service connection, there must be evidence of a current 
disability, disease or injury during service and a link 
between the two.  Furthermore, the evidence needed to 
establish service connection for any particular disability, 
must be competent.  That is, an injury during service may be 
verified by medical or lay witness statements; however, the 
presence of a current disability requires a medical 
diagnosis; and, where an opinion is used to link the current 
disorder to a cause or symptoms during service, a competent 
opinion of a medical professional is required.  Caluza v. 
Brown, 7 Vet. App. 498 (1995).  A well-grounded claim may 
also be established where a chronic disease is shown in 
service or during an applicable presumptive period or where 
continuity of symptomatology is demonstrated during service.  
Savage v. Gober, 10 Vet. App. 489 (1997).  

The veteran contends that he was told at the time of his 
discharge from service that he had a hearing loss that was 
the result of his exposure to jet aircraft engine noise 
during service.  Review of his examination at the time of 
separation from military service shows that he did have a 
hearing loss, but it was noted in the left ear only.  
"Audiometric testing measures threshold hearing levels (in 
decibels (dB)) over a range of frequencies (in Hertz (Hz)); 
the threshold for normal hearing is from 0 to 20 dB, and 
higher threshold levels indicate some degree of hearing 
loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993), citing 
CURRENT MEDICAL DIAGNOSIS AND TREATMENT 110-11 (Stephen A. 
Schroeder et al. eds., 1988).  Audiometric testing in the 
right ear at service separation showed air conduction 
thresholds of -5 dB in all tested frequencies from 500 to 
4000 Hz and a threshold of 0 dB at 6000 Hz.  In fact, the 
only elevated threshold level shown in the right ear during 
the entire 20 year period of the veteran's service was noted 
on audiometric testing in October 1970, when a level of 30 dB 
at 6000 Hz was reported.  As this was followed by repeated 
findings of normal hearing on testing performed in 1972, 
1974, and 1976, it is not considered sufficient to render the 
claim plausible on the basis of continuity of symptomatology.  

Audiometric evaluations performed in 1996, 1997, and 1999 are 
the earliest demonstration of sensorineural hearing loss of 
the right ear shown in the record.  There is no medical 
opinion associated with any of these evaluations that relates 
the right ear hearing loss to service, including the exposure 
to jet aircraft engines during service.  For his claim to be 
well grounded, the veteran would have to submit competent 
medical evidence of causality between incidents of service and 
the disability for which he is claiming service connection.  
Grivois v. Brown, 6 Vet. App. 136 (1994).  As this has not 
been presented, the claim is not well grounded and must be 
denied.  

II.  Evaluation of Left Ear Hearing Loss

It is initially noted that this claim on appeal is well 
grounded and the facts relevant to this issue have been 
properly developed.  Accordingly, the statutory obligation of 
the VA to assist the veteran in the development of his claim 
has been satisfied.  38 U.S.C.A. § 5107(a).  See Caffrey v. 
Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 
Vet. App. 629, 631- 32 (1992) (the mere allegation that a 
service-connected disability has become more severe is 
sufficient to establish a well-grounded claim for an increased 
rating). 

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 
(1999).  Separate diagnostic codes identify the various 
disabilities.  The standards for rating impairment of auditory 
acuity are set forth at 38 C.F.R. § 4.85.  Evaluations of 
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.  In order to evaluate the degree 
of disability from service-connected defective hearing, the 
revised rating schedule establishes 11 auditory acuity levels 
designated from Level I for essentially normal acuity through 
Level XI for profound deafness.  38 C.F.R. § 4.85(b).  
Disability evaluations for hearing loss are derived 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).

In the present case, the veteran's defective hearing is rated 
under Diagnostic Code 6100.  During the pendency of the 
veteran's appeal the criteria for rating defective hearing 
were revised, effective June 10, 1999.  When a law or 
regulation changes during the pendency of an appeal, the Board 
must evaluate the veteran's disability under the version most 
favorable to the claimant, absent congressional intent to the 
contrary.  Karnas v. Derwinski, 1 Vet. App. 308 (1991).  The 
RO reviewed the veteran's claim under both the "old" and "new" 
criteria.  Accordingly, the Board concludes that the veteran 
will not be prejudiced by the Board's review of his claim on 
appeal because due process requirements have been met.  
VAOGCPREC 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 
Vet. App. 384, 393-94 (1993); Karnas, 1 Vet. App. at 312-13.

A private medical record dated in 1996, shows sensorineural 
hearing loss.  A VA audiometric examination conducted in 
February 1997, found the average pure tone threshold at 1,000, 
2,000, 3,000, and 4,000 hertz was 52 decibels in the left ear, 
with speech recognition at 76 percent.  A VA audiometric 
evaluation conducted in August 1999, found the average pure 
tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 53 
decibels in the left ear with speech recognition ability 80 
percent correct in the left ear.  

As the veteran's impaired hearing in his right ear is not 
service-connected, the right ear is assigned a Roman Numeral 
designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  
Applying both the former and the revised criteria, the veteran 
has Level IV hearing in the left ear.  38 C.F.R. § 4.87, Table 
VI (1998); 38 C.F.R. § 4.85, Table VI (1999).  Entering the 
category designations for each ear into Table VII produces a 
noncompensable disability percentage under Diagnostic Code 
6100, under both the former and revised criteria.  

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.  
Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the 
Board notes that this claim is based on the assignment of an 
initial rating for a disability following an initial award of 
service connection for that disability.  In Fenderson v. 
West, 12 Vet. App. 119 (1999), the Court held that the rule 
articulated in Francisco did not apply to the assignment of 
an initial rating for a disability following an initial award 
of service connection for that disability.  Id.; Francisco, 7 
Vet. App. at 58.  

The Board has recharacterized the issue on appeal in order to 
comply with the recent opinion by the Court in Fenderson.  As 
in Fenderson, the RO in this case has also misidentified the 
issue on appeal as a claim for an increased disability rating 
for the veteran's service-connected left ear hearing loss, 
rather than as a disagreement with the original rating award 
for this disorder.  However, the statement of the case and 
the supplemental statements of the cases have provided the 
veteran with the appropriate, applicable law and regulations 
and an adequate discussion of the basis for the RO's 
assignment of an initial disability evaluation for the 
veteran's service-connected left ear hearing loss.  
Consequently, the Board sees no prejudice to the veteran in 
recharacterizing the issue on appeal to properly reflect the 
veteran's disagreement with the initial disability evaluation 
assigned to his service-connected left ear hearing loss.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993). 

In this case, the RO granted service connection and originally 
assigned a noncompensable evaluation for left ear hearing loss 
as of the date of receipt of his claim, i.e., October 31, 
1996.  See 38 C.F.R. § 3.400 (1999).  After review of the 
evidence, there is no medical evidence of record that would 
support a compensable rating for the disability at issue at 
any time subsequent to this date.  Id.; Fenderson v. West, 12 
Vet. App. 119 (1999).  


ORDER

The claim for service connection for right ear hearing loss 
is denied.  An initial compensable evaluation for hearing 
loss in the left ear is denied.  



		
	JOY A. MCDONALD
	Acting Member, Board of Veterans' Appeals