Citation Nr: 0001255	
Decision Date: 01/14/00    Archive Date: 01/27/00

DOCKET NO.  97-33 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to an increased (compensable) evaluation for 
bilateral hearing loss disability.


WITNESS AT HEARING ON APPEAL

Appellant


INTRODUCTION

The veteran served on active duty from January 1979 to August 
1994.

This case comes before the Board of Veteran's Appeals (Board) 
from a rating decision rendered in March 1997 by the Atlanta, 
Georgia, Regional Office (RO) of the Department of Veterans 
Affairs (VA).



FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of 
the veteran's claim has been developed.

2. The veteran's bilateral hearing loss disability is 
manifested by average pure tone threshold loss of 24 decibels 
in the right ear and 34 decibels in the left ear, and by 
speech recognition of 96 percent, bilaterally. 


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral 
hearing loss disability are not met.  38 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Code 
6100 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran's claim is "well 
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 
1991); that is, he has presented a claim that is plausible.  
(See Proscelle v. Derwinski, 2 Vet. App. 629 (1992), with 
regard to the application of the well-grounded standard for 
claims for increased compensation.)  He has not alleged the 
existence of any records of probative value that may be 
obtained, and which are not already associated with his 
claims folder.  The Board accordingly finds that the duty to 
assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), 
has been satisfied.  

Service connection for bilateral hearing loss was granted by 
the Atlanta RO in February 1995, following review of evidence 
that included the veteran's service 

medical records and the report of an October 1994 VA 
audiometric examination.  The RO assigned a noncompensable 
rating, based on the impairment demonstrated on the VA 
examination report.  The veteran currently contends that his 
hearing acuity has decreased, and that an increased rating 
for his service-connected bilateral defective hearing is 
warranted.

Disability evaluations are based upon the average impairment 
of earning capacity as contemplated by VA's Schedule for 
Rating Disabilities (Schedule).  38 U.S.C.A. § 1155 (West 
1991); 38 C.F.R. Part 4 (1999).  Evaluations of bilateral 
defective hearing range from noncompensable to 100 percent 
based on organic impairment of hearing acuity as measured by 
the results of controlled speech discrimination test, 
together with the average hearing threshold level as measured 
by pure tone audiometry tests in the frequencies 1000, 2000, 
3000 and 4000 cycles per second.  To evaluate the degree of 
disability from defective hearing, the revised rating 
schedule establishes eleven auditory acuity levels, from 
level I for essentially normal acuity through XI for profound 
deafness.  38 C.F.R. § 4.85, Part 4 (1999), Diagnostic Code 
6100.

The Board notes that, during the pendency of the veteran's 
appeal, the criteria for evaluating hearing impairment were 
amended, effective as of June 10, 1999.  The United States 
Court of Appeals for Veterans Claims, formerly the United 
States Court of Veterans Appeals (Court), has held that, for 
the purpose of appeals, where the law or regulation changes 
after a claim has been filed or reopened but before the 
administrative or judicial appeal process has been concluded, 
the version more favorable to the appellant should be applied 
unless provided otherwise by statute.  Karnas v. Derwinski, 1 
Vet. App. 308, 312-313 (1991).  Therefore, the Board will 
evaluate the veteran's symptomatology pursuant to both the 
criteria in effect prior to June 10, 1999, and the criteria 
in effect subsequent to that date, to determine which may be 
more favorable to the veteran.

The report of the most recent clinical evaluation by VA of 
the veteran's hearing acuity, conducted in February 1997, 
shows that right ear hearing was manifested by 

pure tone thresholds of 15, 40, 30 and 10 decibels at 1000, 
2000, 3000 and 4000 hertz, respectively, and by speech 
recognition of 96 percent.  It also shows that hearing in the 
left ear was manifested by pure tone thresholds of 25, 45, 35 
and 30 decibels at 1000, 2000, 3000 and 4000 hertz, 
respectively, and by speech recognition of 96 percent.

Under the current criteria set forth in the Schedule, the 
veteran's right ear hearing loss disability is assigned Level 
I, as is his left ear hearing loss disability.  38 C.F.R. 
§ 4.85, Table VI (1999); see 38 C.F.R. § 4.86 (1999).  This 
degree of bilateral hearing loss disability, as determined by 
the Schedule as set forth at 38 C.F.R. § 4.85, Table VII 
(1999), does not warrant the assignment of a compensable 
evaluation.  38 C.F.R. § 4.85; Diagnostic Code 6100 (1999). 

Similarly, under the criteria in effect prior to June 10, 
1999, the degree of hearing loss in each ear is assigned 
Level I.  38 C.F.R. § 4.87, Table VI (1998).  As with the 
current criteria, this degree of bilateral hearing loss 
disability does not warrant the assignment of a compensable 
rating.  38 C.F.R. § 4.87; Diagnostic Code 6100 (1998).  

The veteran has asserted that he does not hear as well as he 
did before, and his assertion is credible.  In determining 
the actual degree of disability, however, the objective 
examination is more probative of the degree of impairment.  
Moreover, the Court has noted that the assignment of 
disability ratings for hearing impairment is derived by 
mechanical application of the numeric designations assigned 
after audiometric evaluations are rendered.  Lendenmann v. 
Principi, 3 Vet.App. 345, 349 (1992).  In this case, the 
numeric designations do not produce a disability evaluation 
that would warrant the assignment of a compensable rating.  
38 C.F.R. Part 4 Diagnostic Code 6100 (1999). Accordingly, 
the noncompensable evaluation currently in effect accurately 
reflects the degree of the veteran's bilateral hearing 
impairment.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, §§  
4.85, 4.87 Diagnostic Code 6100 (1999).


The Court has also held that the Board is precluded by 
regulation from assigning an extra-schedular rating under 38 
C.F.R. § 3.321(b)(1) (1999) in the first instance. Floyd v. 
Brown, 9 Vet. App. 88 (1996).  The Court has further held 
that the Board must address referral under 38 C.F.R. § 
3.321(b)(1) only where circumstances are presented that the 
Director of VA's Compensation and Pension Service might 
consider exceptional or unusual.  Shipwash v. Brown, 8 
Vet.App. 218, 227 (1995). Having reviewed the record with 
these mandates in mind, the Board finds no basis for further 
action on this question.

In reaching this decision as to the issue of entitlement to a 
compensable evaluation for bilateral hearing loss disability, 
the Board has considered the complete history of the 
disability in question as well as the current clinical 
manifestations and the impact the disability may have on the 
earning capacity of the veteran.  38 C.F.R. §§ 4.1, 4.2 
(1999).  Additionally, as the positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter is not evenly balanced and the 
preponderance of the evidence is against the veteran's claim, 
the resolution of doubt in his favor is not warranted.  38 
U.S.C.A. § 5107(b).


ORDER

A compensable evaluation for bilateral hearing loss 
disability is denied.



		
	M. S. SIEGEL
	Acting Member, Board of Veterans' Appeals