Citation Nr: 0003967 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-10 234A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from June 1976 to June 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1997 rating decision of the Washington, DC, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran's service-connected bilateral hearing loss results in an average puretone threshold at 71 decibels in the right ear and 82 decibels in the left ear, with speech recognition ability of 78 percent in the right ear, and 94 percent in the left ear. 2. Service-connected bilateral hearing loss was recently manifested by puretone thresholds of 55 or above at 1000, 2000, 3000, and 4000 Hertz in both the right and left ears. CONCLUSION OF LAW The criteria for a 30 percent disability rating, and no more, for service-connected bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85- 4.87, Diagnostic Code (DC) 6100 (1998); 38 C.F.R. § 4.85- 4.86, DC 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the appellant's claim is well grounded because he has claimed that the disability has worsened since it was last rated; medical evidence has been submitted which the appellant believes supports his contention. See Procelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). Because the appellant's claim is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999). In his regard, the Board notes that the veteran was provided an audiometric examination in April 1997. Additionally, the Board finds no evidence in the claims file indicating that there may be pertinent evidence available but not yet of record. Thus, the Board finds that no further assistance is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Initially, the Board notes that the regulations pertaining to the rating of service-connected hearing loss under the Schedule for Rating Disabilities, 38 C.F.R. Part IV (Rating Schedule), were amended, effective June 10, 1999. See 64 FR 25202 (May 11, 1999). This change occurred during the pendency of the veteran's appeal. The United States Court of Appeals for Veterans Claims has held that, where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been conducted, the version of the law or regulation most favorable to the veteran shall be applied. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Here, the Board finds that the amended set of regulations is more favorable to the appellant. The amended regulations include provisions that pertain to hearing loss of 55 decibels or more in each of the 4 specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and to hearing loss with a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b) (1998), as amended by 64 FR 25202 (May 11, 1999). These provisions are pertinent in this case. The appellant does have hearing loss of 55 decibels or more in all 4 respective frequencies in each ear. The Board finds that the outcome of this case is more favorable to the appellant under the new regulations. Under either the old or amended regulations, evaluations of hearing loss range from noncompensable (0 percent) to 100 percent based on the severity of organic impairment of hearing acuity as noted 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 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from service- connected defective hearing, the revised rating schedule establishes 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, DC 6100 (1998); 38 C.F.R. §§ 4.85-4.86, DC 6100 (1999). When the issue involves a claim for an increased rating for hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. Id. It should be emphasized that "assignment of disability ratings for hearing impairment are derived 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). In order to evaluate the level of disability and any changes in condition, it is nevertheless necessary to consider the complete medical history of the appellant's conditions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding claims for VA benefits, "when 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 claimant." 38 U.S.C.A. § 5107(b) (West 1991). The appellant's VA audiometric examination conducted in April 1997 show that at the 1000, 2000, 3000, and 4000 Hertz frequency levels he has puretone thresholds of 65, 55, 80 and 85 decibels respectively in the right ear, and 80, 75, 80, and 95 decibels respectively in the left ear. The appellant has a speech discrimination score on the Maryland CNC test of 78 percent in the right ear and 94 percent in the left ear. Applying the audiometric test results of the April 1997 VA evaluation report to Table VI of the Rating Schedule, the Roman numeric designation is IV for the right ear and III for the left ear. 38 C.F.R. § 4.85, Table VI (1999). When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the result is a compensable rating of 10 percent for the appellant's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, DC 6100 (1999). The appellant, however, fares better under the new regulations. The appellant has puretone thresholds of 55 decibels or above in both ears at all four relevant frequencies (1000, 2000, 3000, and 4000 Hertz). The regulation provides that when the puretone threshold at each of these frequencies is 55 decibels or above, the Roman numeric designation will be determined using either Table VI or Table VIa, whichever results in a higher numeral. 38 C.F.R. § 4.86 (1999). Using Table VIa, the Roman numeric designation is VI for the right ear and VII for the left ear. 38 C.F.R. § 4.85, Table VIa (1999). When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the result is a compensable rating of 30 percent for the appellant's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, DC 6100 (1999). In light of the above, an evaluation of 30 percent is granted for the appellant's bilateral hearing loss. ORDER An increased evaluation of 30 percent for service-connected bilateral hearing loss is granted, subject to the controlling criteria applicable to the payment of monetary awards. A. BRYANT Member, Board of Veterans' Appeals