Citation Nr: 0000759 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-01 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to restoration of a 10 percent rating for bilateral hearing loss. 2. Entitlement to a current compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and son-in-law INTRODUCTION The veteran served on active duty from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 1996 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas, which reduced the rating for the veteran's service-connected bilateral hearing loss from 10 percent to 0 percent. At his February 1998 hearing, the veteran testified that he felt that his hearing had worsened in the preceding 6 months, and he raised the inextricably intertwined issue of an increased rating for hearing loss. The Board remanded the veteran's case in May 1998. The case is again before the Board for final appellate review. FINDING OF FACT At the time of the rating reduction, the veteran had, at worst, an average decibel loss of 61 in the right ear, with a speech recognition score of 84 percent. He had an average decibel loss of 54 in the left ear, with a speech recognition score of 86 percent. CONCLUSION OF LAW The September 1996 rating decision properly reduced the evaluation for hearing loss; restoration of a 10 percent evaluation for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.105, 4.85, Diagnostic Code 6100 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). VA must consider all regulations which are potentially applicable based upon the evidence and issues of record, whether or not they were raised by the veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Each disability must be viewed in relation to its history, with an emphasis placed upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). An evaluation of the veteran's disability must consider impairment of the veteran's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (1999). A claim may only be denied on its merits if a preponderance of the evidence is against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Under the benefit of the doubt doctrine, the veteran's claim must prevail when the evidence is in relative equipoise. Hence, when the record contains an approximate balance of evidence both for and against the claim, the claim must be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of bilateral hearing loss range from noncompensable to 100 percent, based on organic impairment of hearing acuity as measured by speech discrimination tests together with pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. To evaluate the degree of disability for bilateral hearing loss, the rating schedule establishes 11 auditory acuity levels, designated form level I for essential normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and Diagnostic Codes 6100-6110 (1997). The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1997). Factual background In a February 1958 rating decision, the RO granted service connection for bilateral hearing loss, and a noncompensable rating was assigned. The RO's February 1958 rating decision was based primarily on the veteran's service medical records, which showed a perceptive bilateral hearing loss during service. In a November 1992 rating decision, the RO increased the evaluation for the veteran's service-connected bilateral hearing loss to 10 percent. The RO's November 1992 rating decision was based on the results of October 1992 VA audiometric testing, which produced right ear pure tone thresholds of 20, 65, 70, and 75 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz, and left ear pure tone thresholds of 15, 55, 60, and 70 decibels at those same frequencies. Speech discrimination was measured at 76 percent for the right ear, and 82 percent for the left ear. In September 1994, VA audiometric testing at 1000, 2,000, 3,000, and 4,000 Hertz resulted in pure tone thresholds of 20, 65, 70, and 75 decibels for the right ear and 10, 55, 65, and 65 decibels for the left ear. Speech discrimination was measured at 80 percent for the right ear and 76 percent for the left ear. In September 1995, VA audiometric testing at 1000, 2,000, 3,000, and 4,000 Hertz resulted in pure tone thresholds of 20, 65, 70, and 75 decibels for the right ear and 10, 55, 65, and 65 decibels for the left ear. Speech discrimination was measured at 78 percent for the right ear and 76 percent for the left ear. This was not an examination for rating purposes. In January 1996, the veteran submitted a claim for an increased rating for his service-connected bilateral hearing loss. In May 1996, VA audiometric testing at 1000, 2,000, 3,000, and 4,000 Hertz resulted in pure tone thresholds of 20, 70, 80, and 80 decibels for the right ear and 15, 55, 65, and 70 decibels for the left ear. Speech discrimination was measured at 82 percent for the right ear and 88 percent for the left ear. He had an average decibel loss of 63 in the right ear and 51 in the left ear. In a September 1996 rating decision, the RO reduced the rating for the veteran's service-connected bilateral hearing loss from 10 percent to 0 percent, effective from December 1996. See 38 C.F.R. § 3.105(e) (1999). The 10 percent rating had been in effect since August 1992. Recent VA audiometric testing, performed in June 1997, resulted in pure tone thresholds of 20, 70, 80, and 75 decibels for the right ear and 15, 60, 65, and 75 decibels for the left ear. The veteran had an average decibel loss of 61 in the right ear, with a speech recognition score of 84 percent. He had an average decibel loss of 54 in the left ear, with a speech recognition score of 86 percent. At a February 1998 personal hearing, the veteran testified his hearing had worsened during the last several years, and that he wears hearing aids in both ears. He further testified he has trouble recognizing voices, has difficulty when several people speak at the same time, and has difficulty when there is background noise, such as a washing machine or automobile traffic. The veteran's son-in-law testified the veteran has trouble hearing ordinary speech, and that the speaker must be facing the veteran in order to be understood. In a written statement, dated in February 1998, the veteran's wife stated she often must repeat things to the veteran two or three times before he can understand her. She also stated the veteran must play the television very loudly in order to hear it, he has difficulty hearing people on the telephone, and that he cannot hear his grandchildren. Analysis - Restoration Initially, the Board notes the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, VA has a duty to assist the veteran with the development of evidence to support his claim. 38 U.S.C.A. § 5107(a). In this regard, the Board is satisfied that all relevant facts have been developed, and the duty to assist the veteran has been fulfilled. The evidence of record establishes that restoration of a 10 percent rating for the veteran's service-connected bilateral hearing loss is not warranted. The VA audiometric examination, performed in June 1997, resulted in an average decibel loss of 61 in the right ear, along with an 84 percent speech discrimination score. According to 38 C.F.R. § 4.85, Table VI (1997), these test results translate into a numeric designation of III for the right ear. For the left ear, the average decibel loss of 54 and the 86 percent speech discrimination score translate into a numeric designation of II. When applied to Table VII of 38 C.F.R. § § 4.85 (1997), the numeric designations of III in the right ear and II in the left ear translate into a 0 percent evaluation for the veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Diagnostic Code 6100. The May 1996 VA audiometric examination results, which are sufficient for rating purposes of the veteran's auditory acuity, lead to the same conclusion. At that time, the average decibel loss for the right ear was 63, with an 82 percent speech discrimination score. According to Table VI, these test results translate into a numeric designation of IV for the right ear. For the left ear, the average decibel loss of 51 and the 88 percent speech discrimination score translate into a numeric designation of II. When applied to Table VII, the numeric designations of IV in the right ear and II in the left ear translate into a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes the veteran's personal assertion and hearing testimony that his bilateral hearing loss has worsened during the last several years. The veteran's statements and hearing testimony are competent evidence to the extent that they concern observable symptoms. As a lay person, however, he is not qualified to render a medical diagnosis or opinion as to the severity of his disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board also recognizes the veteran's assertion, made on a VA-Form 9 dated in December 1996, that a VA audiologist told him his bilateral hearing loss has not improved. The veteran's assertion as to what a doctor may have told him, however, is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 609 (1992). Furthermore, the United States Court of Appeals for Veterans Claims (Court) has held that the assignment of a disability rating for hearing impairment is accomplished by mechanically applying the rating schedule and numeric designations to the results of audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, a mechanical application of the rating schedule to the results of the two most recent audiometric examinations establishes a noncompensable rating is warranted. In situations such as this, the provisions of 38 C.F.R. § 4.7 are not for application. Hence, although the Board recognizes the veteran's assertions and those of his family, his appeal must be denied. The Board specifically notes that the veteran's bilateral hearing loss was rated at 10 percent for less than five years. Therefore, the provisions of 38 C.F.R. § 3.344 (1999) do not apply in this case. ORDER Entitlement to restoration of a 10 percent evaluation for bilateral hearing loss is denied. REMAND The Board notes that effective June 10, 1999, regulations applicable to hearing loss were revised. 63 Fed. Reg. 25206 (May 11, 1999). Because the veteran's claim was filed before the regulatory change occurred, he would be entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the new criteria, 38 C.F.R. § 4.86(b) provides that 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. The veteran was afforded examinations in 1999. At the time of the July 1999 audiological examination, the puretone threshold of the right ear was 25 decibels at 1000 Hertz and 70 decibels at 2000 Hertz. In September 1999, the puretone threshold of the right ear was 20 decibels at 1000 Hertz and 70 decibels at 2000 Hertz. In the October 1999 supplemental statement of the case, the RO did not cite to the new criteria, nor is there any explanation about Table VIa. For due process reasons, remand of this case is necessary for the RO's initial consideration of the new rating criteria. The RO should again review the record and adjudicate the veteran's claim in light of the new criteria that became effective on June 10, 1999, including 38 C.F.R. § 4.86(b) (1999). If the benefit sought is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified by the RO M. SABULSKY Member, Board of Veterans' Appeals