Citation Nr: 0002175 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-08 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased evaluation for bilateral high frequency hearing loss, currently rated as 10 percent disabling. 2. Entitlement to an effective date earlier than July 3, 1999, for the grant of a 10 percent evaluation for bilateral high frequency hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from March 1960 to March 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision from the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the veteran's claim and appeal has been assumed by the Phoenix, Arizona VARO. In November 1997, the Board denied a compensable evaluation for a right inguinal hernia and remanded the issue of entitlement to a compensable evaluation for bilateral high frequency hearing loss for further development, specifically, a VA examination. The VA examination was conducted in July 1999, and, in August 1999, the RO granted a 10 percent evaluation for bilateral hearing loss, effective July 3, 1999, the date of the VA examination. The veteran expressed his disagreement with the 10 percent evaluation, and the case has since been returned to the Board for further appellate review. The issue of entitlement to an effective date earlier than July 3, 1999, for the grant of a 10 percent evaluation for bilateral high frequency hearing loss is addressed in the remand portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The July 1999 VA examination revealed that the veteran has Level V hearing in his right ear, and Level IV hearing in his left ear. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent for bilateral high frequency hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Tables VI, VII, Diagnostic Code 6101 (effective prior to June 10, 1999); 38 C.F.R. §§ 4.85, 4.86(a), 4.87, Tables VI, VIa, VII, Diagnostic Code 6100; 64 Fed. Reg. 25202-25210 (May 11, 1999) (effective June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The pertinent evidence of record shows that the RO granted service connection for bilateral high frequency hearing loss with the assignment of a non-compensable rating, effective April 1, 1980. This decision was not appealed. In May 1994, the veteran raised a claim of entitlement to an increased (compensable) rating for his bilateral high frequency hearing loss. On VA audio examination in October 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 60 60 LEFT 30 30 45 50 65 Puretone threshold average was 51 in the right ear and 47 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear. In January 1999, the veteran underwent audiological testing. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 60 60 70 80 LEFT 40 50 60 65 90 Puretone threshold average was approximately 68 in the right ear and 66 in the left ear. See 38 C.F.R. § 4.85(d) (1999). Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 84 percent in the left ear. In July 1999, a VA examination was conducted of the veteran's hearing acuity. Certified pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 70 80 LEFT 35 45 55 75 75 Puretone threshold average was 68 percent in the right ear and 62 percent in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life, with specific reference to employment. 38 C.F.R. § 4.10. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the VA Rating Schedule that addresses the ear and other sense organs was recently amended, effective June 10, 1999. 64 Fed. Reg. 25202 (1999). Thus, the regulatory criteria governing the evaluation of the veteran's bilateral hearing loss changed while his claim was pending. 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 will apply unless Congress provided otherwise. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the previous regulations, evaluations of bilateral defective hearing ranged from noncompensable to 100 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 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110 (effective before June 10, 1999). Under the previous regulations, Table VIa was used only when the Chief of the Audiology Clinic certified that language difficulties or inconsistent speech audiometry scores made the use of both puretone average and speech discrimination inappropriate. 38 C.F.R. § 4.85(c) (effective before June 10, 1999). The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (effective after June 10, 1999). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c) (1999). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (1999). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b) (1999). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (finding that entitlement need not be established by a fair preponderance of the evidence). Analysis Initially, the Board notes that the veteran's claim is found to be well-grounded under 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). 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). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Following a review of the record, the Board finds that the probative evidence shows that the veteran is not entitled to an evaluation in excess of 10 percent for bilateral high frequency hearing loss under either the previous or amended regulations. Under Table VI of both the previous and amended regulations, the veteran's hearing level was Level I in both ears during the October 1994 VA examination, and was Level IV in the right ear and Level IV in the right ear during the July 1999 VA examination. Under Table VII of both the previous and amended regulations, Level IV hearing in both ears allows for a 10 percent evaluation. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Codes 6100 and 6101. A rating in excess of 10 percent is not warranted under Table VIa under either the previous or amended regulations. Table VIa under the previous regulations is not for application because it was not certified that there were language difficulties or inconsistent speech audiometry scores that made the use of both puretone average and speech discrimination inappropriate. See 38 C.F.R. § 4.85(c) (1999). Under the current regulations, Table VIa can be applied to the veteran's right ear because pure tone results for the right ear revealed puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) have been found to be at 55 decibels or more. It cannot be applied to the left ear because puretone threshold was not 55 or more at each of the four specified frequencies. See 38 C.F.R. §4.86(a) (1999). Nonetheless, a rating in excess of 10 percent for bilateral hearing loss is not warranted even with application of Table VIa under the current regulations. Under Table VIa, the veteran's puretone threshold average for the right ear is Level V. As was stated above, the puretone threshold average of the left ear is Level IV. Under Table VII of the amended regulations, Level V hearing in the poorer ear and Level IV hearing in the better ear allows for a 10 percent evaluation. 38 C.F.R. §§ 4.85 and 4.86, Tables VI, VIa, and VII (1999). Therefore, the Board finds that an evaluation greater than 10 percent for the veteran's bilateral sensorineural hearing loss disability is not warranted under the previous or amended regulations. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Following a full review of the record, the Board finds that the evidence is not so evenly balanced as to require application of the benefit of the doubt in favor of the veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Additional Matters Extraschedular Consideration The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board notes that the RO provided the veteran with the provisions of 38 C.F.R. § 3.321(b)(1), but that it did not actually consider his claim in light thereof. 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 which the VA Undersecretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board further notes that neither the veteran nor his representative have raised the issue of 38 C.F.R. § 3.321(b)(1) on appeal in terms of bilateral high frequency hearing loss. Having reviewed the record with the above mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to a rating in excess of 10 percent for bilateral sensorineural hearing loss is denied. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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 or by the Court 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. 1999) (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. As was stated previously, the RO assigned a 10 percent rating for bilateral high frequency hearing loss in August 1999, with an assigned effective date of July 3, 1999. Both the veteran and representative have submitted statements that can reasonably be construed as disagreement with the assigned effective date for the 10 percent evaluation of bilateral hearing loss. 38 C.F.R. § 20.201 (1999). There is no indication that the veteran was ever provided with a Statement of the Case (SOC) pertaining to the assignment of the effective date. When there has been an initial RO adjudication of a claim and an NOD has been filed as to its denial, the veteran is entitled to an SOC, and the RO's failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); see also Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the above, and to ensure full compliance with due process requirements, this case is remanded for the following development: 1. The veteran should be notified that he may submit additional evidence and argument in support of the issues on appeal in accordance with 38 U.S.C.A. § 5103(a) (West 1991). All pertinent evidence received should be associated with the claims file. 2. The RO will take such development or review action as it deems proper regarding the issue of entitlement to an effective date earlier than July 3, 1999 for the grant of a 10 percent evaluation for bilateral high frequency hearing loss. 3. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case. RONALD R. BOSCH Member, Board of Veterans' Appeals