Citation Nr: 0002001 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-45 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from November 1956 to May 1957. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously before the Board in March 1997, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. One of the issues before the Board in March 1997 was entitlement to a compensable evaluation for chronic otitis media. In an increased rating claim, a veteran is generally presumed to be seeking the maximum benefit available. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In this case, an August 1999 rating decision granted the maximum evaluation, 10 percent, available for chronic otitis media under Diagnostic Code 6200, and assigned an effective date of April 14, 1999. The veteran was notified of this decision, and did not file a notice of disagreement (NOD) with the effective date assigned. The Board further notes that there has been no indication that the veteran's service-connected chronic otitis media presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of extraschedular evaluations under 38 C.F.R. § 3.321(b)(1), or that the disorder results in either marked interference with employment or frequent hospitalization. Thus, the claim for an increased rating for chronic otitis media has been satisfied and no longer remains a matter in controversy. Consequently, the issue of entitlement to a compensable evaluation for bilateral hearing loss is the only issue before the Board at this time. Accordingly, the Board will limit its consideration to that issue. Lastly, the Board notes that it appears the veteran may wish to raise the issue of entitlement to service connection for tinnitus. As this claim has not been adjudicated by the RO, and as it is not inextricably intertwined with the issue certified on appeal at this time, it is referred back to the RO for appropriate initial consideration. See Parker v. Brown, 7 Vet. App. 116 (1994). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has Level II hearing in both ears. CONCLUSION OF LAW The schedular criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 6100 (Prior and subsequent to June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Historically, a June 1960 rating decision granted service connection for bilateral otitis media with defective hearing, and assigned a noncompensable evaluation. The RO granted a 10 percent rating for the veteran's service-connected bilateral ear disability in October 1964. A March 1970 rating decision continued the 10 percent evaluation of the veteran's otitis media, and assigned a separate noncompensable rating for bilateral hearing loss. This noncompensable evaluation of the veteran's service-connected bilateral hearing loss has remained in effect since that time. The veteran sought an increased evaluation of his service- connected bilateral hearing loss in October 1993, asserting that the disorder had increased in severity. He submitted two private medical reports in support of his claim. According to a September 1993 report from Dr. P., an audiology evaluation revealed that auditory thresholds at frequencies 500, 1000, and 2000 Hertz averaged 37 decibels in the right ear, and 38 decibels in the left ear. The veteran's speech discrimination scores "with ear muffs in quiet" were 96 percent in the right ear and 100 percent in the left ear. The pertinent diagnosis was bilateral hearing loss, primarily conductive in nature. A report for Dr. M., dated later that month, indicates that the veteran's hearing was 4/20 bilaterally. Bilateral hearing loss was diagnosed. A November 1993 VA audiology examination showed auditory thresholds at frequencies 1000, 2000, 3000, and 4000 Hertz were 30, 30, 40, and 50 decibels, respectively, in the right ear, and 30, 25, 35 and 40 decibels, respectively, in the left ear. An average pure tone threshold was 37.5 decibels in the right ear, and 32.5 decibels in the left ear. Speech recognition was 88 percent in the right ear, and 72 percent in the left ear. The final assessment was mild to moderate conductive hearing loss. Based on this evidence, a March 1994 rating decision continued the noncompensable evaluation of the veteran's service-connected bilateral hearing loss. The veteran filed a notice of disagreement with this decision in May 1994, and submitted a substantive appeal (Form 9) in October 1994, perfecting his appeal. During the January 1997 Travel Board hearing, the veteran testified that service connection had been in effect for his bilateral hearing loss for "many years." Transcript (T.) at 4. In addition, he reported that he had been wearing hearing aids for approximately four years. T. at 4-6. The veteran explained that while he does not have trouble hearing in a quiet environment, he experiences difficulty hearing when there is background noise. T. at 7-9. The Board remanded the case for additional development in March 1997. In particular, the Board directed the RO to obtain all relevant treatment records, and to schedule a VA audiology examination to determine the current level of the veteran's service-connected bilateral hearing loss. In support of his claim, the veteran submitted a March 1994 private medical record and uninterpreted audiogram in August 1997. In compliance with the March 1997 remand, the RO obtained VA outpatient records showing treatment for various disabilities, including hearing loss, from December 1992 to May 1997. A December 1997 VA audiological evaluation report notes auditory thresholds at frequencies 1000, 2000, 3000, and 4000 Hertz were 25, 25, 35, and 55 decibels, respectively, in the right ear, and 30, 25, 45 and 50 decibels, respectively, in the left ear. An average pure tone threshold was 35 decibels in the right ear, and 37.5 decibels in the left ear. Speech recognition was 94 percent in the right ear, and 72 percent in the left ear. The final assessment was mild to moderate mixed loss of hearing sensitivity from 3000 to 4000 Hertz in the right ear, and mild to moderate mixed loss of hearing sensitivity from 500 to 4000 Hertz in the left ear with an island of normal hearing at 2000 Hertz. Consequently, the RO continued the noncompensable evaluation of the veteran's service-connected bilateral hearing loss in November 1998. On VA audiological examination in April 1999, the veteran gave a 40-year history of decreased bilateral hearing acuity. Auditory thresholds at frequencies 1000, 2000, 3000, and 4000 Hertz were 30, 35, 45, and 55 decibels, respectively, in the right ear, and 40, 30, 30 and 25 decibels, respectively, in the left ear. An average pure tone threshold was 41.25 decibels in the right ear, and 31.25 decibels in the left ear. Speech recognition was 88 percent bilaterally. The final assessment was mild to moderate sensorineural hearing loss from 500 through 4000 Hertz in the right ear, and mild sensorineural hearing loss from 500 through 4000 Hertz in the left ear. Analysis The Board finds initially that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran is seeking an increased rating, an assertion of an increase in severity is sufficient to render the increased rating claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that during the pendency of this appeal, the regulations governing the schedular criteria for rating diseases of the ear and other sense organs were revised effective June 10, 1999. See 38 C.F.R. §§ 4.85-4.87a. Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the veteran applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). While the RO has not had an opportunity to review the veteran's claims under the amended regulations, and the veteran has not been advised of the changes, the Board may consider regulations not considered by the agency of original jurisdiction if the claimant will not be prejudiced by the Board's action in applying those regulations in the first instance. See VAOPGCPREC 11-97; Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Because of the particular circumstances presented in this case, the Board believes that a remand to afford the RO an opportunity to review the veteran's claim is not necessary. The pertinent regulations do not contain any substantive changes that affect this particular case, but add certain provisions that were already the practice of VA. 38 C.F.R. § 4.85. The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been changed. The revised regulatory provisions essentially addressed the question of whether the speech discrimination testing employed by VA in a quiet room with amplification of sounds accurately reflect the extent of hearing impairment. Based upon research, two circumstances were identified where alternative tables could be employed. One was where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels or greater. The second was where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86. Because the comparison of the audiometric findings with the schedular criteria is purely a mechanical function over which there can be no dispute, and as the record does not disclose thresholds meeting either criterion, there is no reason to return this issue to the RO for readjudication as the only substantive change in the revised regulation can not affect the outcome. The veteran has already been afforded the hearing tests required by the new regulations, and these were used by the RO in the evaluation of his claim. Therefore, the Board is able to evaluate this claim under the new regulations. To remand the case for the RO to apply the amended regulations would result in a pointless delay in the adjudication of the veteran's claim that can not conceivably lead to a more favorable outcome. Therefore, as there is no prejudice to the veteran in failing to remand this case for initial review of the amended regulations by the RO, the Board will proceed with appellate review under both versions of the regulations. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Under the regulations in effect prior to June 10, 1999, evaluations of bilateral defective hearing range 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 of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability for bilateral service- connected defective hearing, the rating schedule established 11 auditory acuity levels designated from level I for essentially normal hearing through level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110. Under the regulations in effect from June 10, 1999, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. The record shows that entitlement to service connection for bilateral hearing loss was established in a June 1960 rating decision. A noncompensable evaluation was assigned for this disability, which remains in effect. As indicated above, the evidence of record includes an April 1999 VA audiometric evaluation. The Board finds that entitlement to a compensable evaluation for bilateral hearing loss is not warranted under either the old or new regulations. The Board has considered the veteran's argument that his hearing loss has increased in severity. However, the evidence clearly weighs against the assignment of a compensable evaluation in this case. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss. The evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The April 1999 audiometric evaluation shows that the veteran has an average pure tone threshold of 41.25 decibels in the right ear, with speech discrimination of 88 percent. He has an average pure tone threshold of 31.25 decibels in the left ear with 88 percent speech discrimination in the left ear. The only possible interpretation of this examination under both the old and new regulations is that the veteran's hearing loss is at level II in both ears, and that, therefore, a compensable rating is not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the provisions of 38 C.F.R. § 4.85(g) and, as noted above, 38 C.F.R. § 4.86, but the results of the April 1999 VA examination clearly show that these provisions are no applicable in this case. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss. 38 C.F.R. § 3.102 (1999). Based upon current findings and on the review of the entire evidence in the veteran's claims folder, it is the conclusion of the Board that the veteran's bilateral hearing loss does not approach the level required for the assignment of a compensable evaluation. In view of the evidence of record, the provisions of 38 C.F.R. §§ 4.3 and 4.7 are not for application. His claim in this regard, therefore, must be denied. ORDER A compensable evaluation for bilateral hearing loss is denied. Richard B. Frank Member, Board of Veterans' Appeals