Citation Nr: 0006703 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-14 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Bunch, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to October 1968, February 1975 to February 1978, and November 1978 to November 1992. This appeal arises before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) from a rating decision of March 1998 from the Montgomery, Alabama, Regional Office (RO). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. On a VA audiological examination in December 1997, the average puretone thresholds were 54 decibels for the right ear and 29 decibels for the left ear. Speech recognition was 84 percent correct for the right ear and 88 percent correct for the left ear. The veteran has level II hearing loss in his left ear and level II loss in his right ear. CONCLUSION OF LAW The schedular criteria for a rating evaluation greater than zero percent for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.86, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. A claim that a disorder has become more severe is well grounded where the disorder was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board further finds that all relevant facts have been properly developed, and that the duty to assist the veteran, mandated by § 5107(a), has been satisfied. Where entitlement to VA 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 review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.41, 4.42 (1999), the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet.App. 55 (1994). The severity of hearing loss is ascertained, for VA rating purposes, by the application of criteria set forth at 38 C.F.R. § 4.85 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (hereinafter Schedule). 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 for the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85 (1999), Tables VI, VII, Diagnostic Codes 6100 to 6110. Additionally, the United States Court of Appeals for Veterans Appeals (Court) has noted that hearing loss disability evaluations are assigned "by a mechanical application of the rating schedule to the numerical designation assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). The VA has changed the regulations pertaining to the evaluation of hearing loss since the arrival of the veteran's appeal at the Board. These changes became effective June 10, 1999. When a 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 most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has not had the opportunity to evaluate the veteran's claim under the new regulations. However, 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 the VA. 64 FR 25202, May 11, 1999, to be codified at 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. Therefore, the Board is able to evaluate this claim under the new regulations without prejudice to the veteran, and will proceed with consideration of the appeal. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). A review of the record shows that a VA audiological examination conducted in March 1993 showed bilateral sensorineural hearing loss. In August 1993, the RO granted service connection for the bilateral hearing loss and assigned a noncompensable rating, which has remained in effect. The veteran was seen at a VA outpatient clinic for various disorders from 1996 to 1998 to include hearing loss. A September 1997 VA audiological examination revealed findings which were interpreted showing moderate high frequency hearing loss sensorineural hearing loss in the left ear and mild to profound mixed hearing loss in the right ear. In October 1997 progressive hearing loss was reported. A VA audiological examination was conducted in December 1997. The medical history indicated that the veteran's main complaint was bilateral hearing loss. He felt he had the most difficulty understanding speech in group noise, and on television, especially when the voices are on the right side. The veteran was in the Vietnam conflict for one year where he was involved heavily with infantry while in combat. He was also exposed to excessive noise of a motor pool for three years where he was exposed to M-113 anti-personnel carriers. VA audiological examination showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 65 65 LEFT 20 15 15 40 45 The puretone thresholds average for the right ear was reported as "55" decibels. The correct average 54 decibels. The average for the left ear was 29 decibels. This report also shows that the speech recognition was 84 percent correct in the right ear and 88 percent correct in the left ear. The diagnosis of the audiometric examination indicated a mild to moderately severe conductive hearing loss from 500 hertz through 2,000 hertz and a moderately severe hearing loss at 4,000 hertz with a mixed component in the right ear. He showed a mild to moderate high frequency sensorineural loss in the left ear. By mechanical application of the criteria in Table VI of 38 C.F.R. § 4.85, the degree of hearing loss disability in the veteran's right ear is classified as Level II, and the degree of hearing loss disability in the left ear is classified as Level II. Therefore, under Table VII of 38 C.F.R. § 4.85, a zero percent evaluation must be assigned under diagnostic code 6100. The Board is aware that the veteran is competent to allege that he is worse or that a higher evaluation should be assigned. While the veteran is qualified to report his symptoms, he is not competent, in the absence of evidence demonstrating that he has medical training or expertise, to render medical findings or opinions. Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). However, the medical evidence demonstrates that his condition is more consistent with an evaluation rated as zero percent disabling. Taking into consideration all of the available medical evidence and the mechanical application of the criteria set forth in the Schedule, it is the finding of the Board that an evaluation greater than zero percent rating is not warranted. The preponderance of the evidence is against the veteran's claim, and there is no doubt to be resolved. The veteran indicates that he uses hearing aids. The need for hearing aids, while a point for consideration, does not establish that the hearing loss is sufficient to warrant a compensable rating. The evaluations derived from this Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1999). Accordingly, it is the Board's judgment that an increased rating for the bilateral hearing loss is not warranted. In rendering this determination, the Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). However, the evidence does not reflect the degree of impairment resulting from the bilateral hearing loss more nearly approximates the criteria for the next higher evaluation pursuant to 38 C.F.R. § 4.7 (1999). Additionally, the evidence is not in equipoise as to warrant the consideration of the benefit of the doubt rule. 38 C.F.R. § 4.3 (1999). ORDER Entitlement to an increased rating evaluation for bilateral hearing loss is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals