Citation Nr: 0007484 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-01 827 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE The propriety of the initial noncompensable rating assigned for the service-connected bilateral hearing loss. ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from January 1962 to December 1963. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the RO. The Board remanded the case in August 1999 for further development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected bilateral hearing disability is not shown to be manifested by worse than Level III hearing impairment in either ear. CONCLUSION OF LAW The criteria for the assignment of an increased (compensable) rating for the service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85. (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran claims that a service-connected disability is more severely disabling than as rated, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's bilateral hearing disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. VA regulations require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When the issue involves a claim for an increased rating for hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. 38 C.F.R. § 4.85, Tables VI and VII. It should be emphasized that "[a]ssignment of disability ratings for hearing impairment 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). However, to evaluate the level of disability and any changes in condition, it is nevertheless necessary to consider the complete medical history of the veteran's conditions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, by regulatory amendment effective June 10, 1999, changes were made to the schedular criteria for evaluation of hearing loss. See 64 Fed. Reg. 25208, 25209 (1999). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Board is therefore required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the veteran's bilateral hearing loss is warranted. The effective date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. Rhodan v. West, 12 Vet. App. 55, 57 (1998). The Board notes that the differences between the former criteria and the revised criteria in this case are relatively minor and do not affect the outcome of the case. The Board also observes that, in a February 2000 supplemental statement of the case, the RO provided both versions of the criteria to the veteran and informed him that his disability had been considered under both the new and old criteria and that each version resulted in the same evaluation. A July 1997 VA report of audiological examination noted that the veteran had normal hearing sensitivity from 250 through 500 hertz (Hz) with mild to profound sloping sensorineural hearing loss in the right ear and mild to severe sloping sensorineural hearing loss in the left ear. The report also noted that the veteran had reported that he had experienced very mild, infrequent, bilateral tinnitus episodes of short duration. The report noted that the veteran's right ear average pure tone decibel loss was 70 and speech discrimination was 88 percent. This combination of decibel loss and speech discrimination is assigned a "III" under Table VI of 38 C.F.R. § 4.85 in both the amended regulation (new version) and the version in effect prior to June 10, 1999 (old version). The veteran's left ear hearing loss showed pure tone decibel loss findings which translate of an average of 61 and speech discrimination of 90 percent, which is also assigned a "III" under both the new and old versions of Table VI of 38 C.F.R. § 4.85. When these two determinations are rated under both versions of Table VII of 38 C.F.R. § 4.85, it is apparent that a compensable rating is not for application given these findings. The record also included a September 1997 private medical audiological report, as submitted by the veteran. The report listed speech reception levels of 44 DB in each ear and speech discrimination levels of 80 percent in the right ear and 82 percent in the left ear. An April 1998 VA report of audiological examination noted that the veteran was issued hearing aids after the July 1997 examination and that the veteran reported that he had not experienced tinnitus since he began to wear them. Additionally, the report noted that the veteran had reported no significant change in his audiological history since the July 1997 examination. The report noted diagnoses of mild to profound sloping sensorineural hearing loss in the right ear and mild to severe sloping sensorineural hearing loss in the left ear. The report noted the veteran's right ear average pure tone decibel loss as 70 and speech discrimination of 84 percent, which is assigned a "III" under both the new and old versions of Table VI of 38 C.F.R. § 4.85. The veteran's left ear hearing loss showed average pure tone decibel loss of 60 and speech discrimination of 96 percent, which is assigned a "II" under both versions of Table VI of 38 C.F.R. § 4.85. When these two determinations are rated under both versions of Table VII of 38 C.F.R. § 4.85, it is apparent that a compensable rating is not for application given these findings. A January 1999 VA report of audiological examination did not include a reading of decibel loss at the 3000 Hz level or average pure tone decibel loss for either ear. The report listed the speech discrimination of each ear as 84 percent. A January 1999 VA outpatient treatment record noted that the veteran's hearing aids were adequate and appropriate and that he would be retested in one year. A January 2000 VA report of audiological examination noted that the veteran had reported that no significant changes had occurred since the April 1998 or January 1999 evaluations. The report also noted that the veteran indicated that he had experienced tinnitus "on a very limited and inconsistent basis." The report noted diagnoses of mild to profound sloping sensorineural hearing loss in the right ear and mild to severe sloping sensorineural hearing loss in the left ear. The report recorded the veteran's right ear average pure tone decibel loss as 69 and speech discrimination as 84 percent, which is assigned a "III" under both versions of Table VI of 38 C.F.R. § 4.85. The veteran's left ear hearing loss showed average pure tone decibel loss of 59 and speech discrimination of 86 percent, which is also assigned a "III" under both versions of Table VI of 38 C.F.R. § 4.85. When these two determinations are rated under Table VII of 38 C.F.R. § 4.85, it is apparent that a compensable rating is not for application under either version of the regulation given these findings. Although the veteran's contentions as to the severity of his disorder are credible, the Board once again stresses that, under Lendenmann, there is little leeway in making a determination as to the disability rating warranted for hearing loss. The Board must apply the results of the veteran's audiological examinations to the ratings schedule mechanically. Lendenmann at 349. In the veteran's January 1998 Substantive Appeal, he requested consideration for an "exceptional case." He explained that he was a food service supervisor in a prison and that hearing correctly was critical for safety reasons, such as prisoner assignments and movement. He had earlier asserted that he could not get a promotion because of his hearing. However, the veteran has presented no evidence to support these assertions by showing that he has an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased (compensable) rating for the service-connected bilateral hearing loss. ORDER The claim for an increased rating for the service-connected bilateral hearing loss is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals