Citation Nr: 0004332 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-11 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE What evaluation is warranted for the period from May 18, 1997, for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In September 1998, the Board granted a 10 percent rating for bilateral tinnitus. Thus, that issue is no longer on appeal. In the same decision, the Board remanded the issue of an original rating for bilateral hearing loss. The RO, after readjudicating the claim based on the requested development continued a 30 percent evaluation for bilateral hearing loss from May 18, 1997 to March 27, 1999, and assigned a 40 percent evaluation on and after March 27, 1999. The case has returned to the Board for appellate review. There is no indication that the veteran has withdrawn his appeal. In a claim for an increased rating the appellant is generally presumed to be seeking the maximum benefit allowed by law. AB v. Brown, 6 Vet. App. 35 (1993). Hence, it follows that such a claim remains in controversy when less than the maximum available benefit is awarded. The claims file has now been returned to the Board for further appellate review. FINDINGS OF FACT 1. From May 18, 1997 to March 27, 1999, the veteran had level VI hearing in the right ear and level VII in the left. 2. Since March 27, 1999, the veteran has had level VI hearing in the right ear and level VIII in the left. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 30 for bilateral hearing loss during the period from May 18, 1997 to March 27, 1999 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.385, 4.7, 4.14, 4.85- 4.87, Diagnostic Code 6100 (1999). 2. The schedular criteria for an evaluation in excess of 40 for bilateral hearing loss since March 27, 1999 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.385, 4.7, 4.14, 4.85-4.87, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is appealing the original disability evaluation assigned following an award of service connection, and, as such, the claim is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In such a case as this it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After reviewing the evidence, which includes various VA examination reports, the Board is satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). 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 Board notes that effective June 10, 1999, the VA revised the criteria for evaluating Diseases of the Ear and Other Sense Organs. 38 C.F.R. § 4.87, Diagnostic Codes 6100 to 6110 (1999); 38 C.F.R. § 4.85, Diagnostic Code 6100, 64 Fed. Reg. 25208-09 (1999). However, the changes in regulations pertaining to evaluations for hearing loss are not pertinent to the veteran's disability rating. The Board notes that the RO has not had a chance to evaluate the veteran's claim under both the old and new rating criteria. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991) (where the law or regulations change while a case is still pending, the version most favorable to the claimant applies, absent congressional intent to the contrary). However, as the changes made do not reflect any substantive change in the evaluation of the veteran's disabilities, the Board concludes that there is no prejudice to the veteran by evaluating his bilateral hearing loss for the first time under both sets of regulations. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Evaluations of defective hearing range from noncompensable to 100 percent. This is 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 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.87, Diagnostic Codes 6100 to 6110; 38 C.F.R. § 4.85, Diagnostic Code 6100, 64 Fed. Reg. 25208- 09. Turning to the case at hand, the Board notes that in March 1998 the RO granted the veteran service connection for bilateral hearing loss and assigned a 30 percent disability rating effective May 18, 1997. The veteran timely appealed this decision. Subsequently, in April 1999, the RO continued the 30 percent rating for bilateral hearing loss effective from May 18, 1997, but assigned a 40 percent rating effective March 27, 1999. The statements of the veteran regarding the effect that the bilateral hearing loss has had on his life have been noted. In evaluating service-connected hearing impairment, however, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the Maryland CNC controlled speech discrimination test together with the results of the pure tone audiometry test. See 38 C.F.R. § 3.385 (1998); 38 C.F.R. §§ 3.385, 4.85(a) (1999). The Board may not consider speech recognition scores that have not been conducted with the required Maryland CNC Test. The results are then analyzed using the tables contained in 38 C.F.R. § 4.87. The claims file reveals that the veteran has recently been tested for hearing loss. Rating in excess of 30 percent prior to March 27, 1999 The veteran submitted the results of a private audiogram dated in May 1997. The audiogram results with pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 60 65 - 80 68 LEFT 60 75 - 75 70 The speech recognition threshold was 60 bilaterally. The private examiner, however, did not indicate whether he used the Maryland CNC controlled speech discrimination test. The Board may not consider speech recognition scores that have not been conducted with the required Maryland CNC Test. See 38 C.F.R. § 3.385 (1998); 38 C.F.R. §§ 3.385, 4.85(a) (1999). Therefore, by law, the Board may not consider this examination when evaluating the veteran's bilateral hearing disability. In December 1997, VA examined the veteran's hearing loss. The VA examination report shows the veteran's pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 65 70 75 75 71 LEFT 60 70 75 75 70 The Maryland CNC speech recognition results were 74 in the right ear and 62 in the left ear. This corresponds to level VI hearing in the right ear and level VII in the left ear, and a 30 percent rating. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100. In May 1998, the VA examined the veteran's hearing loss again. The VA examination report shows the veteran's pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 60 70 75 75 70 LEFT 65 75 80 75 73 The Maryland CNC speech recognition results were 70 in the right ear and 66 in the left ear. This also corresponds to level VI hearing in the right ear and level VII in the left ear, and a 30 percent rating. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100. Therefore, there is no medical evidence of record prior to March 27, 1999 warranting a rating in excess of 30 percent. Accordingly, the Board finds that an evaluation in excess of 30 percent for bilateral hearing loss prior to March 27, 1999 is not warranted. Rating in excess of 40 percent on and after March 27, 1999 Most recently, VA examined the veteran's hearing loss in March 1999. The VA examination report shows the veteran's pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 65 65 75 75 70 LEFT 55 70 80 80 71 The Maryland CNC speech recognition results were 68 in the right ear and 54 in the left ear. This corresponds to level VI hearing in the right ear and level VIII in the left ear, and a 40 percent rating. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100. Therefore, there is no medical evidence warranting a rating in excess of 40 percent on or after March 27, 1999. Accordingly, the Board finds that an evaluation in excess of 40 percent for bilateral hearing loss on or after March 27, 1999 is not warranted. Conclusion To reiterate, in reaching this decision the Board acknowledges the veteran's statements regarding the adverse impact the bilateral hearing loss has had on his life. Nevertheless, when the findings reported on the VA audiometric examination reports are applied to the mechanical formula of the rating schedule, a rating in excess of 30 percent prior to March 27, 1999, and a rating in excess of 40 percent on and after March 27, 1999 are not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting a higher rating for the veteran's bilateral hearing loss either prior to or since March 27, 1999. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). ORDER An evaluation in excess of 30 percent prior to March 27, 1999 is denied. An evaluation in excess of 40 percent on and after March 27, 1999 is denied. DEREK R. BROWN Member, Board of Veterans' Appeals