Citation Nr: 0003186 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-28 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty for over 22 years and retired in December 1977. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Service connection has been in effect for a left ear hearing loss since rating action in May 1978. A noncompensable rating was assigned at that time and has been in effect ever since. As noted in the November 1998 remand decision, service connection was established for right ear hearing loss in June 1998. A noncompensable rating was assigned. In the remand decision, the Board noted that the RO had treated the veteran's claims for increased ratings for hearing impairment as separate issues rather than as a bilateral hearing loss. The Board requested that the RO readjudicate the issue on the basis of a bilateral hearing loss and provide the veteran with a proper supplemental statement of the case. The development requested has been accomplished and the case is once again before the Board. FINDING OF FACT The veteran has level I hearing impairment in each ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.85, 4.87, Diagnostic Code (DC) 6100 (1998); 64 Fed. Reg. 25202-25210 (1999) (to be codified at 4.85). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Ratings A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Additionally, the Board observes that in a claim involving disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Factual Background The veteran contends that his hearing loss is more severe than what the VA perceives it to be. At a recent personal hearing, the veteran noted that he wore hearing aids in both ears. The Board notes that the criteria for rating diseases of the ear were amended effective June 10, 1999. 64 Fed. Reg. 25202- 25210 (1999). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version more favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the amendment made no change to the method of determining the percentage evaluation for hearing impairment. Tables VI, VIa and VII remain the same. The amendments include reorganizing sections 4.85 and 4.86 for the sake of clarity. The amended regulations provide for two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under section 4.85, because the speech discrimination test may not reflect the severity of communicative functioning these veterans experience. 64 Fed. Reg. 25202, 25203 (to be codified at 38 C.F.R. § 4.86 (1999)). However, the evidence demonstrates that the veteran's hearing loss is not one of these exceptional patterns of hearing impairment. Under the former and amended rating 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 speech discrimination tests, together with the average hearing threshold levels 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 for bilateral service- connected hearing loss, the rating schedule establishes eleven (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 and Codes 6100-6110 (1998); 64 Fed. Reg. 25202, 25206- 25209 (to be codified at 38 C.F.R. § 4.85 (1999)). 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 (1992). As noted earlier, the veteran was granted service connection for a left ear hearing loss in 1978. He was granted service connection for a right ear hearing loss in 1998. The veteran is appealing his initial noncompensable rating for a bilateral hearing loss. On the authorized audiological evaluation in February 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 30 35 45 LEFT 20 20 35 55 60 Speech audiometry revealed speech recognition ability of 94 percent in each ear and an average decibel loss of 31 in the right ear and 42 in the left ear. The diagnosis was moderate high frequency sensorineural hearing loss, bilaterally. The veteran testified at a personal hearing in October 1997 that he had been issued hearing aids by VA for both ears. Following the November 1998 Board remand determination, another VA audiometric examination was conducted. On the authorized audiological evaluation in February 1999, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 35 45 LEFT 25 25 45 55 65 Speech audiometry revealed speech recognition ability of 94 percent in each ear and an average decibel loss in the right ear of 35 and an average decibel loss in the left ear of 48. Mild to moderate high frequency sensorineural hearing loss in the right ear and moderate to moderately severe high frequency sensorineural hearing loss in the left ear was noted. Analysis The audiometric examinations of record reflect a level I hearing impairment in each ear. See 38 C.F.R. §§ 4.85, 4.87, Tables VI and VII. The mechanical application of the Rating Schedule to these findings warrants a noncompensable evaluation pursuant to DC 6100. The appellant reported that he now wears hearing aids in both ears reflecting the severity of his impairment. The Board points out, however, that the noncompensable evaluation contemplates the use of hearing aids. As such, the Board finds that the preponderance of the evidence is against the claim, and an increased evaluation is not warranted. 38 U.S.C.A. § 5107, Lendenmann, supra. The Board also finds that the current evaluation contemplates the symptomatology and resulting impairment demonstrated in the medical evidence of record. The Board concurs with the RO that there are no unusual or exceptional factors such as to warrant an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) (1) (1999). ORDER An increased evaluation for bilateral hearing loss is denied. Richard B. Frank Member, Board of Veterans' Appeals