Citation Nr: 0003780 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-34 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from February 1950 to February 1954, and from May 1954 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Albuquerque, New Mexico. FINDING OF FACT The veteran's hearing loss is currently manifested by pure tone average thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz of 42 decibels in the right ear and 25 decibels in the left ear, and by a speech recognition ability of 94 percent in each ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, 4.86, 4.87, Diagnostic Code 6100 (1997); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). The severity of hearing loss disability is ascertained, for VA rating purposes, by application of the criteria set forth at 38 C.F.R. § 4.87 of the Schedule. Under these criteria, the degree of disability for bilateral service-connected hearing loss disability is determined by application of a rating schedule that establishes eleven auditory acuity levels, ranging from Level I (for essentially normal acuity) through Level XI (for profound deafness). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 through 6110 (1999). As described by the Court, the assignment of disability ratings in hearing cases is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1999). Factual Background In a decision dated in September 1973, the RO established service connection and assigned a zero percent evaluation for bilateral hearing, effective July 1, 1973. That evaluation has remained in effect to date. In June 1997, the RO received the veteran's claim for an increased evaluation. At the time of a VA rating examination conducted in September 1997, audiologic evaluation revealed pure tone thresholds, in decibels, as follows: EAR 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz RIGHT 25 20 65 60 LEFT 15 15 35 35 The average puretone threshold at the above frequencies was noted to be 42 decibels in the right ear and 25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The impression was bilateral, mild, low-frequency conductive loss and bilateral sensorineural high frequency hearing loss. The examiner noted that the veteran's hearing loss remained stable. In December 1997, the veteran was given a hearing aid audiologic evaluation, which revealed pure tone thresholds, in decibels, as follows: EAR 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz RIGHT 25 20 65 60 LEFT 15 15 35 35 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. Hearing aids were authorized. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where a claim is well grounded, VA has a duty to assist the veteran, to include by scheduling contemporary examination. In this case the veteran was examined by VA in September 1997 in connection with the instant appeal. His representative argues that several years have passed and that it is likely the veteran's hearing acuity has decreased. The representative therefore requests that the case be remanded for another examination. The Court has, however, recently held that the veteran must come forward with at least some evidence that there has in fact been a material change in his or her disability when that veteran seeks a rating increase. A bald, unsubstantiated claim for an increase in disability rating is not evidence of a material change in that disability and is insufficient to trigger the agency's responsibility to request a reexamination. Glover v. West, No. 99-7015 (Fed. Cir. Aug. 2, 1999). In this instance, the only other material evidence since the September 1997 VA examination is a November 1997 report of VA evaluation that includes audiometric results that are identical to those shown in September 1997. Moreover, the September 1997 examiner termed the veteran's hearing loss "stable." As such, the Board finds no material evidence of any change in the veteran's disability status to justify further examination. Thus, no additional development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Parenthetically, the Board notes that the veteran is free to reapply for an increase based on evidence of a material change in his hearing acuity. As regulations provide that increased ratings are awarded as of the date of receipt of claim or the date entitlement arose, whichever is later; or the date an increase was factually ascertainable if a claim is received within one year from such date (otherwise date of receipt of claim), the veteran is not prejudiced by the decision herein below. See 38 C.F.R. § 3.400(o) (1999), The veteran contends that, inasmuch as he must wear hearing aids, a higher rating is warranted. However, when hearing is tested for rating purposes, as the veteran's was in September 1997, it is tested without any hearing aids. Thus, the disability rating assigned is for the degree of hearing loss present before any improvement from hearing aids. There is no provision for assigning a percentage rating based merely on the use of hearing aids. The report of the September 1997 rating examination shows pure tone average thresholds of 42 decibels in the right ear and 25 decibels in the left ear at 1,000, 2,000, 3,000 and 4,000 Hertz, and a speech recognition ability of 94 percent bilaterally. Such represents a Level I hearing loss in each ear. When the left and right ears are combined, the veteran's hearing loss warrants no more than a zero percent evaluation under 38 C.F.R. § 4.87, Diagnostic Code 6100. The results of testing in December 1997, when the veteran was given a hearing aid evaluation, are identical. The Board is not free to ignore regulations that provide for evaluation of hearing loss based on numeric designation. See Lendenmann v. Principi, 3 Vet. App. 345. Accordingly, no increase is warranted. 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). However, the numerical standards by which auditory acuity and speech recognition are measured were not altered and there were no changes that would require evaluating this veteran's hearing loss in a manner different from that previously used. Thus, the Board finds that there is no prejudice to the veteran with regard to the above determination. See Bernard v Brown, 4 Vet. App. 384 (1993). An increased rating, therefore, is not warranted at this time. The preponderance of the probative evidence in this case clearly is against the claim so application of the provisions of 38 U.S.C.A. § 5107(b) is not warranted. ORDER A compensable evaluation for bilateral hearing loss is denied. JANE E. SHARP Member, Board of Veterans' Appeals