Citation Nr: 0007723 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-17 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 60 percent disabling. 2. Entitlement to an increased original evaluation for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from December 1952 to December 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1998 rating decision of the Winston-Salem, North Carolina, 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 91 decibels in the right ear and 91 decibels in the left ear, with speech recognition ability of 48 percent in the right ear and 46 percent in the left ear. 2. The veteran's service connected tinnitus does not present such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for service connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code (DC) 6100 (1998); DC 6100 (1999). 2. The criteria for a disability rating in excess of 10 percent for service connected tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.87a, DC 6260 (1998), DC 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are 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 veteran's claims are well grounded because he has claimed that the disabilities have worsened since they 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 veteran's claims are well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claims. 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 1998. 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). 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). 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). However, this is not applicable in an appeal from a rating assigned by an initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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 veteran was initially granted service connection for bilateral hearing loss by rating decision dated February 1975. His hearing loss was evaluated as 60 percent disabling at that time. In February 1998, the veteran filed a claim seeking an increase in his disability evaluation for bilateral hearing loss as well as a new claim for service connection for tinnitus. His claim for an increase in disability rating for bilateral hearing loss was denied by rating decision dated in June 1998, but his claim for service connection for tinnitus was granted and a rating of 10 percent assigned. The veteran timely appealed both issues, seeking an increased rating for both bilateral hearing loss and tinnitus. The veteran's VA audiometric examination conducted in April 1998 shows that at the 1000, 2000, 3000 and 4000 Hertz frequency levels he has puretone thresholds of 90, 90, 90, and 95 decibels respectively in the right ear and 80, 90, 95, and 100 decibels respectively in the left ear. The veteran has a speech discrimination score on the Maryland CNC test of 48 percent in the right ear and 46 percent in the left ear. Applying the audiometric test results of the April 1998 VA evaluation report to Table VI of the Rating Schedule, the Roman numeric designation is IX for the right ear and IX for the left ear. 38 C.F.R. § 4.85, Table VI . When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the result is a compensable rating of 60 percent for the veteran's service connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, DC 6100. Under the new regulations the disability rating would be the same. The veteran 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 IX for the right ear and IX 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 60 percent for the appellant's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, DC 6100. Under both the new and the old regulations, the highest schedular rating for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260 (1998); 38 C.F.R. § 4.87, DC 6260 (1999). Therefore, the only way for the veteran to be granted a disability rating higher than the current 10 percent is by applying an extraschedular rating. 38 C.F.R. § 3.321(b) (1999). Application of the extraschedular provisions is not warranted for either bilateral hearing loss or tinnitus in this case. There is no objective evidence that the veteran's service connected bilateral hearing loss or service connected tinnitus present such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board further notes that the veteran appealed the initial assignment of a 10 percent disability rating for his service- connected tinnitus. This necessitates that the Board consider not only whether he is currently entitled to an increased disability rating, but also whether or not he was entitled to an increased disability rating at any time since the effective date of his initial grant of service connection, even if only temporarily. Fenderson v. West, 12 Vet. App. 119, 126 (separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings) (citations omitted); see 38 C.F.R. §§ 3.400, 3.500 (1998). After review of the record, the Board finds no basis for a temporary increased rating. The veteran was granted a 10 percent evaluation effective from the date of his original claim and as discussed above, application of an extraschedular rating is not warranted. In light of the above, increased evaluations for bilateral hearing loss and tinnitus must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b). ORDER An increased evaluation in excess of 60 percent for bilateral hearing loss is denied. An increased evaluation in excess of 10 percent for tinnitus is denied. A. BRYANT Member, Board of Veterans' Appeals