Citation Nr: 0000112 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 99-03 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to a compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from September 1972 to March 1976. This appeal arises from a November 1998 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right ear hearing loss and evaluated the disability as noncompensable, effective February 1998. Additionally, service connection for left ear hearing loss was denied. In December 1998, the veteran revoked his appointment of North Carolina Division of Veterans Affairs as his accredited representative and appointed Disabled American Veterans (DAV) as his representative at that time. The veteran was scheduled for a videoconference hearing with a member of the Board of Veterans' Appeals (Board) in October 1999. The veteran canceled this hearing. The Board finds that the evidence of record raises the issue of entitlement to service connection for tinnitus. See VA Form 646, dated in July 1999. This matter is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. The veteran's claim that he has left ear hearing loss due to service is not accompanied by any medical evidence to support that allegation. 2. The veteran's claim for service connection for left ear hearing loss is not plausible. CONCLUSION OF LAW The veteran's claim for entitlement to service connection for left ear hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for left ear hearing loss The threshold question as to the issue of entitlement to service connection for left ear hearing loss is whether the veteran has presented a well-grounded claim. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The veteran must satisfy three elements for a claim for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Second, there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. See Layno v. Brown, 6 Vet.App. 465, 469 (1994) and Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991). Lastly, there must be evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as shown through medical evidence. See Lathan v. Brown, 7 Vet.App. 359, 365 (1995) and Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). See also Caluza v. Brown, 7 Vet.App. 498, 506 (1995). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). For the reasons discussed below, the Board finds that the veteran has not presented a well-grounded claim for entitlement to service connection for left ear hearing loss. Service medical records show that the veteran was treated for earaches and otitis media. In May 1973, physical examination of the ears proved normal. In February 1976, during a separation examination, he had decibel losses of 30 at 3,000 and 4,000 hertz. After service, the first audiology examination of record was in 1990, many years after service. Audiology examinations from 1990 to 1998 showed left ear decibel losses of 60 at 3,000 and 4,000 hertz. He underwent a service medical facility audiology examination in January 1998. A history of 22 years of civilian service with a base laundry and base maintenance as a machine operator and laborer exposed to power tools was noted. Also noted was four years of active duty as a diesel mechanic. He complained of tinnitus secondary to noise exposure to 18 wheel trucks, forklifts and table saws for seven years and working at the base maintenance and base laundry for a seven-year period. He also indicated that he had noise exposure in service from 50- caliber weapons. The assessment was moderate high frequency hearing loss of the left ear at 3,000 to 6,000 hertz. He had excellent speech discrimination in the left ear and screening tests were negative for retrocochlear pathology. An audiometric examination was conducted for VA in April 1999. A history was recorded of working with large equipment and around loud gunfire in the military. Audiometric test results revealed moderate to severe bilateral hearing loss. Under applicable criteria, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the veteran claims that he has left ear hearing loss as a result of service. As for left ear hearing loss as a result of service, the veteran must first show competent evidence of a current disability (a medical diagnosis). Here, the evidence demonstrates that the veteran currently has a left ear hearing loss disability. He has been diagnosed with moderate high sensorineural hearing loss in 1998 and moderate to severe hearing loss in 1999, both of which satisfy the criteria of 38 C.F.R. § 3.385. Accordingly, he has satisfied the first element of a well-grounded claim. The second element necessary to establish a well-grounded claim requires evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. In the case of sensorineural hearing loss, if it is shown to a degree of at least 10 percent within one year of service discharge, it may be presumed to be of service onset. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the present case, the veteran has presented no medical or lay evidence of a hearing loss in service, as defined by 38 C.F.R. § 3.385. The first medical evidence indicative of hearing loss was in 1990, in an audiology examination performed in connection with the veteran's employment. Therefore, the veteran has not satisfied the second element of a well-grounded claim. Lastly, there must be evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as shown through medical evidence. Here, the only indication that the veteran has a left ear hearing loss caused as a result of service is the veteran's own assertion. The only person who has presented this opinion is the veteran himself. Since the veteran is a layman, he has no competence to give medical opinions on diagnosis or etiology, and his statements do not serve to make the claim as to left ear hearing loss well grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v Derwinski, 2 Vet.App. 494 (1992). Based on the foregoing, a plausible claim for service connection for left ear hearing loss is not established. ORDER Service connection for left ear hearing loss is denied. REMAND Evaluation of right ear hearing loss At the outset, it is important to note that the veteran's claim for a compensable evaluation for right ear hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. In this case, the veteran has asserted that his right ear hearing loss is more severe than currently evaluated; thus, his claim for an increase is well grounded. In a November 1998 rating decision, service connection for right ear hearing loss was granted. A noncompensable evaluation was awarded, effective February 17, 1998, the date of the claim. The veteran disagreed with the noncompensable evaluation in a notice of disagreement (NOD) of December 1998. The decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) in Fenderson v. West, 12 Vet. App. 119 (1999) distinguished between a veteran's dissatisfaction with the initial rating assigned following the grant of service connection, and a claim for an increased rating for a service-connected condition. The Court discussed that in the case of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The Court also reiterated that on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet.App. 35, 38 (1993). The Court also made clear that its holding in Francisco v. Brown, 7 Vet.App. 55, 58 (1994), (which indicates that when an increase in the disability rating is at issue, the present level of disability is of primary importance), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. The current appeal regarding the evaluation of right ear hearing loss is from the initial rating that established service connection and assigned a noncompensable evaluation. Staged rating have not been considered in this case. The veteran's hearing loss has been evaluated under the provisions of 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. It is observed, however, that during the pendency of this appeal, VA issued new regulations for evaluating impairment of auditory acuity. These became effective June 10, 1999. 62 Fed. Reg. 25,202-25,210 (May 11, 1999). The Court has held that, where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See also Baker v. West, 11 Vet.App. 163, 168 (1998); Dudnick v. Brown, 10 Vet.App. 79 (1997) (per curiam order), holding that, although certain new rating criteria became effective after the appellant filed his appeal with the Court, VA and the Court are required to apply the amendments to the extent that they are more favorable to the claimant than the earlier provisions. The regulatory amendments noted above were not in effect at the time the RO issued its decision assigning a noncompensable evaluation for the veteran's hearing loss or confirming this evaluation and, therefore, would not have been applied by the RO. In view of that, the Board must consider whether or not the veteran would be prejudiced if the Board were to proceed with appellate consideration of the claim without first giving the RO the opportunity to consider the new regulations. In this regard, the Board notes that the criteria for evaluating hearing impairment in effect prior to May 1999, call for the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. 38 C.F.R. § 4.85. These results are then charted on Table VI and Table VII, as set out in the Rating Schedule. In order to establish entitlement to an increased evaluation for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The Board has compared the previous versions of Table VI and Table VII, and the new versions of these tables, and finds that there has been no discernable change in them. Further, it is noted that the revisions in the language in 38 C.F.R. § 4.85 do not change the method by which Tables VI and VII are interpreted, but only describe, in greater detail, how they are applied. As to the provisions of section 4.86, in effect prior to May 1999, it only provided information regarding the fact that the evaluations derived from the Rating Schedule were intended to make proper allowance for improvement by hearing aids. Currently, it addresses exceptional patterns of hearing loss. The exceptional patterns addressed in that section are when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the April 1999 hearing evaluation conducted for VA, the veteran's right ear pure tone threshold at 1000 hertz was 20 decibels and at 2000 hertz was 70 decibels. Thus, if the Board were able to apply the revised rating criteria to the April 1999 rating criteria, the veteran would clearly fall within an exceptional pattern of hearing impairment. Therefore, the veteran would be prejudiced by the Board proceeding to the merits of the claim at the present time. Adjudication of the veteran's claim for increase must include consideration of both the old and the new criteria and that criteria which is most favorable to the veteran's claim must be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board notes, however, that consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The Court, addressing a similar matter, stated that the effective date rule contained in 38 U.S.C.A. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law, since the Secretary's legal obligation to apply the effective date of the revised regulations prevents the application, prior to that date, of the liberalizing law rule stated in Karnas. That is, for any date prior to June 10, 1999, neither the RO nor the Board could apply the revised rating schedule to a claim. Rhodan v. West, 12 Vet. App. 55 (1998). Thus, this case is REMANDED to the RO for the following: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for the service-connected right ear hearing loss since April 7, 1999, if any. After securing the necessary release, the RO should obtain copies of all records from the identified treatment sources. 2. Thereafter, the veteran should be afforded VA ear and audiometric examinations in order to determine the severity of his service-connected right ear hearing loss. All indicated testing should be performed. The claims folder must be made available to the examiners prior to the examinations so that pertinent aspects of the veteran's medical history may be reviewed. The examiners should specifically state whether the claims folder was reviewed. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be taken. 4. Thereafter, the RO should again review the veteran's claim. This should include consideration of both the old and new criteria for rating hearing loss in accordance with the decisions of the Court in the Karnas and Rhodan cases. The RO should also consider the appropriateness of staged ratings, in accordance with the decision of the Court in Fenderson. If the benefit sought on appeal is denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals