Citation Nr: 0003496 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-14 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Determination of initial rating for right ear hearing loss. 2. Determination of initial rating for perforation of the left eardrum. 3. Determination of initial rating for perforation of the right eardrum. ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from July 1975 to March 1981, and from October 1981 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In his August 1998 Form 9, the veteran stated that a rating of 15 percent for his service-connected back disability would be satisfactory. In a rating decision dated in March 1999, the RO granted a rating of 20 percent for residuals of a compression fracture of the thoracic spine currently evaluated as 10 percent disabling. As the RO noted in the rating decision, this was a full grant of benefit sought on appeal. Thus, the appeal was ended at that point in time, and the issue is not now before the Board. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. During the June 1998 VA audiological examination, the four-frequency puretone average was 34 decibels in the right ear. Speech audiometry revealed speech recognition of 96 percent in the right ear. 3. The veteran is not service-connected for left ear hearing loss, and is not totally deaf in that ear. 4. The veteran has healed perforations of the left and right eardrums. 5. There is no evidence of record to show that this case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.85, Diagnostic Code 6100 (1999). 2. The criteria for a compensable rating for perforation of the left eardrum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.87, Diagnostic Code 6211 (1999). 3. The criteria for a compensable rating for perforation of the right eardrum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.87, Diagnostic Code 6211 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During VA examinations during the appeals period, right ear hearing acuity was measured as follows: HERTZ 1000 2000 3000 4000 June 1998 25 30 35 45 Sept. 1999 20 30 35 40 The four-frequency average was 34 decibels in June 1998, and 31 decibels in September 1999. Speech audiometry revealed speech recognition ability of 96 percent in the right ear in June 1998, and of 100 percent in the right ear in September 1999. During the June 1998 VA examination, the left tympanic membrane was normal. The right tympanic membrane was deformed and thickened, and the examiner believed that there was a healed perforation of the tympanic membrane; the examiner indicated that he didn't detect any significant impairment of function. During the September 1999 VA examination, the veteran was diagnosed as having a small amount of tympanosclerosis anterior/inferior and posterior/inferior right, but no particular evidence of a healed perforation on the right; there was a small amount of scarring of the tympanic membrane, but not of "any great significance." The left ear showed more scarring than on the right with a small amount of tympanosclerosis anterior/inferior left to posterior-inferior left. There was also evidence of a small, healed central perforation behind the handle of the left malleus. Analysis As a preliminary matter, the Board notes that the veteran has presented well-grounded claims for increased disability evaluations within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran's claims that his conditions are, and have been, more severe than currently evaluated are plausible. The Board is also satisfied that all relevant facts pertinent to these issues have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him as mandated by law. 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, the Board has reviewed all the evidence of record pertaining to the history of the disabilities at issue and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Id. at 8. Therefore, at the time of an initial rating, separate evaluations can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 9. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Schedule for Rating Disabilities (rating schedule). 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that 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 most favorable to the appellant will apply, unless Congress provided otherwise. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In Rhodan v. West, 12 Vet. App. 55 (1998), the Court noted that, where compensation is awarded or increased "pursuant to any Act or administrative issue, the effective date of such an award or increase...shall not be earlier than the effective date of the Act or administrative issue." See 38 U.S.C.A. § 5110(g)(West 1991). As such, the Court found that this rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. The portion of the VA Schedule for Rating Disabilities concerning diseases of the ear and other sense organs (impairment of auditory acuity), was amended in May 1999, effective June 10, 1999. See 64 Fed. Reg. 25202-25210 (May 11, 1999). When a change occurs in an applicable statute or regulation after a claim has been filed but before a final decision has been rendered, the U.S. Court of Appeals for Veterans Claims (Court) has held that VA must apply the version of the statute or regulation which is most favorable to the claimant, unless Congress has expressly provided otherwise or has authorized VA to provide otherwise and VA has done so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Therefore, when the pertinent rating criteria have been revised during the pendency of an appeal to the Board involving a claim for an increased rating for a service-connected disability, a determination must be made by the Board as to whether a particular amended regulation is more favorable to a claimant than the previously existing regulation. In VA O.G.C. Prec. Op. No. 11-97 (Mar. 25, 1997), the VA General Counsel addressed questions relating to the application of amended rating schedule provisions in appeals pending before the Board involving claims for increased ratings for service-connected mental disorders. While the answers provided in that opinion relate specifically to the amendments made to the portion of the rating schedule addressing mental disorders, the reasoning and analysis set forth in the opinion are equally applicable to other amendments made to the rating schedule, including the recent changes made to the portion of the schedule addressing diseases of the ear and other sense organs. In regard to the question of whether an amendment made to the rating schedule contains liberalizing criteria, it was held by the General Counsel that questions as to whether an amendment is more beneficial to a claimant than a previously existing provision must be resolved on a case-by-case basis. The determination as to whether a particular amended regulation is more favorable to a claimant than the previously existing regulation may depend upon the facts of the particular case. In the present case, the RO has considered the veteran's claims under both the old and new regulations, and the applicable schedular criteria are substantively equivalent for purposes of adjudication of the veteran's claim. There is no prejudice to the veteran in adjudication of the case by the Board. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Right Ear Hearing Loss Evaluations for service-connected disabilities are assigned upon meeting certain schedular criteria. 38 U.S.C.A. § 1155. Evaluations of unilateral defective hearing range from noncompensable to 10 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 of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from unilateral service-connected defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and the appellant does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. See Boyer v. West, 12 Vet. App. 142 (1999). In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6101. Otherwise, a noncompensable rating is appropriate. Id. Since the results of the June 1998 audiological examination reflect lower hearing acuity than the September 1999 results, and are thus most favorable to the veteran's claim, the Board will use these results in adjudication of the claim. In the present case, left ear hearing loss is not total and is not service-connected. Accordingly, for purposes of rating the veteran's right ear hearing loss, the hearing acuity of the left ear is considered to be normal, Boyer, or level I. The four-frequency puretone average was 34 decibels in the right ear. Speech audiometry revealed speech recognition of 96 percent in the right ear. This is evaluated as level I hearing loss in the right ear. 38 C.F.R.§ 4.85, Table VI. Level I hearing loss in the right ear combined with level I hearing loss in the left ear is rated as noncompensably (0 percent) disabling. 38 C.F.R. §§ 4.85, 4.87, Table VII, Diagnostic Code 6100. In sum, there is no medical evidence to show that the veteran has met the schedular criteria for a compensable rating for right ear hearing loss at any time during the appellate period. Accordingly, the claim for a compensable initial rating for right ear hearing loss is denied. Increased Ratings Perforation Left and Right Eardrum Under 38 C.F.R. § 4.87a, Diagnostic Code 6211 (1998), and 38 C.F.R. § 4.87, Diagnostic Code 6211 (1999), perforation of the tympanic membrane is rated as noncompensably disabling. A zero percent rating is the maximum schedular rating for this disability. In the present case, the veteran has healed perforations of the left and right tympanic membranes. Since the maximum schedular rating for this disability is 0 percent for each eardrum, a higher initial rating for this disability may not be granted. Extra-Schedular Consideration The Board has considered whether the disabilities at issue in this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 3.321(b). There is no evidence of record to show that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In light of the foregoing, the Board finds that this case does not warrant extraschedular consideration. 38 C.F.R. § 3.321(b) (1999). ORDER Entitlement to a compensable initial rating for right ear hearing loss is denied. Entitlement to a compensable initial rating for perforation of the left eardrum is denied. Entitlement to a compensable initial rating for perforation of the right eardrum is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals