Citation Nr: 0000703 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-20 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from September 1951 to August 1974. This case arises before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was scheduled for a hearing before a Member of the Board in May 1999; however, the veteran, in electing not to attend the hearing, canceled his hearing request prior to the scheduled hearing date. As part of an October 1997 letter to VA, the veteran appears to raise the issue of entitlement to service connection for tinnitus. As this issue has not been adjudicated by the RO, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's service-connected bilateral hearing loss is currently manifested by a puretone threshold average of 50 decibels in the right ear and 58 decibels in the left ear, with speech recognition ability of 84 percent for the right ear and 82 percent for the left ear; the veteran has level II hearing impairment in the right ear and level IV hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an increased (compensable) evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (effective prior to June 10, 1999); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100; 64 Fed. Reg. 25202-25210 (May 11, 1999) (effective June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the evidence of record shows that the veteran complains of, in essence, decreased hearing. Specifically, he asserts that he has difficulty understanding speech in background settings and complains of intolerance to loud sounds. See VA audio examination report dated in July 1997. Initially, the Board finds that the veteran's claim for an increased rating for his service-connected bilateral hearing loss 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. He has not alleged that any records of probative value that may be associated with his claims folder and which have not already been sought are available. The Board notes that generally claims for increased evaluations are considered to be well grounded. Specifically, 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). It is accordingly found that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The Board notes that, during the pendency of this appeal, 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). 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). The new regulations were not in effect when the 1997 rating decision was made, and the RO has not considered the new regulations. Also, the veteran has not been given notice of the new regulations. However, it is not necessary to remand this claim since he is not prejudiced by the Board's consideration of the new regulations in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). The amended regulations did not result in any substantive changes. Essentially, the old and new regulations for evaluating a hearing loss disorder are identical. See 64 Fed. Reg. 25202 (May 11, 1999) (discussing the method of evaluating hearing loss based on the results of puretone audiometry results and the results of a controlled speech discrimination test, and indicating that there was no proposed change in this method of evaluation). In this case, neither rating criteria can be more favorable to the veteran's claim since the criteria are identical. The amended regulations did incorporate some explanatory comments concerning VA's method of evaluating a hearing loss disorder, and these comments will be discussed where appropriate. As noted above, the veteran claims that his bilateral hearing loss disability has worsened and warrants an increased disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). As previously indicated, when a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas, supra. Therefore, the Board must evaluate the veteran's claim for an increased rating from June 10, 1999, under both the old criteria in the Schedule and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. However, the Board again points out that as the old and new regulations for evaluating a hearing loss disorder are identical, neither rating criteria can be more favorable to the instant claim since the criteria are identical. (The Board notes that the provisions of 38 C.F.R. § 4.86(a) and (b), which were added by the change in regulation that became effective on June 10, 1999, are not pertinent in the instant case.) The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (1998). Under these criteria, evaluations of hearing loss 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 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85(a) and (d) (1999), as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). To evaluate the degree of disability from defective hearing, the Schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b) and (e) (1998), as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). See Lendenmann, supra. The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). In the instant case, the record shows that entitlement to service connection for "defective hearing" was granted, at a noncompensable evaluation level, by the RO by means of a rating decision dated in April 1975, following review of the veteran's service medical records and the report of a December 1974 VA examination. The noncompensable evaluation assigned by the RO in April 1975 has remained in effect since that rating action. On VA audiological evaluation in October 1981, the veteran's right ear auditory thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) were 15, 30, 60, and 60 dBs, respectively. These results translate to an average puretone threshold of 41.25 decibels (dBs). Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear. The veteran's left ear auditory thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz were 15, 30, 65, and 60 dBs, respectively. These results translate to an average puretone threshold of 42.5 dBs. Speech audiometry testing revealed speech recognition ability of 96 percent in the left ear. The report also noted that the veteran should continue to wear his hearing aid. A VA Summary Report of Examination for Loss of Organic Hearing Acuity, dated later in October 1981, included a diagnosis of bilateral high frequency sensorineural type hearing loss, moderate in the right ear and moderate to severe in the left. On VA audiological evaluation in March 1989, the veteran's right ear auditory thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz were 20, 45, 70, and 70 dBs, respectively. An average puretone threshold of 51 dBs was provided. Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear. The veteran's left ear auditory thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz were 20, 45, 65, and 75 dBs, respectively. An average puretone threshold of 51 dBs was provided. Speech audiometry testing revealed speech recognition ability of 98 percent in the left ear. A letter submitted by a private ear, nose, and throat specialist, dated in April 1989, shows that the veteran complained of continuing hearing loss deterioration. The physician also recommended that the veteran be seen for hearing aid evaluation. As part of a VA Form 21-4138, Statement in Support of Claim, dated in May 1997, the veteran noted that he had been treated for his hearing problems at the VA outpatient clinic in Pensacola, Florida. He also pointed out that he had received hearing aids from that medical facility. In May 1997, treatment records dated from January 1996 to the present were sought from that facility by VA. In June 1997, the RO was informed that the veteran had not been treated at the Pensacola, Florida, outpatient clinic during the above-noted time frame. The report of a VA audiometric examination conducted in July 1997, the most recent medical evidence of record, shows that the veteran complained of bilateral hearing loss since 1974. He noted that he had difficulty understanding speech in background settings and complained of intolerance to loud sounds. The diagnosis was mild to severe sensorineural hearing loss in the right ear and moderate to profound sensorineural hearing loss in the left ear. Audiological evaluation accomplished the day of the examination revealed that right ear puretone thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz were 20, 50, 65, and 65 dBs, respectively. These results translate to an average puretone threshold of 50 dBs. Speech audiometry testing revealed speech recognition ability (Maryland CNC) of 84 percent in the right ear. The veteran's left ear auditory thresholds in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz were 25, 60, 75, and 70 dBs, respectively. These results translate to an average puretone threshold of 57.5 dBs. Speech audiometry testing (Maryland CNC) revealed speech recognition ability of 82 percent in the left ear. In this case, the average puretone decibel loss for the veteran's right ear, achieved by adding the loss at 1,000, 2,000, 3,000, and 4,000 Hz and dividing by four, was 50. The percent of discrimination was 84. By intersecting the column in Table VI (38 C.F.R. § 4.85) for average puretone decibel loss falling between 50 and 57 with the line for percent of discrimination from 84 to 90, the resulting numeric designation for the right ear is II. The average puretone decibel loss for the veteran's left ear, upon the rounding up of the number 57.50, which was achieved by adding the loss at 1000, 2000, 3000, and 4000 Hz and dividing by four, was 58. The percent of discrimination was 82. The resulting numeric designation for the left ear is IV. See also 38 C.F.R. § 4.85, Table VI. Reference is then required to Table VII (38 C.F.R. § 4.85) for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of II for the better ear and IV for the poorer ear, the point of intersection on Table VII requires assignment of a noncompensable evaluation under Diagnostic Code 6100. The RO has applied the rating schedule accurately, and there is no basis under law for the assignment of a higher evaluation. Audiometric testing results are dispositive evidence for a claim for an increased disability rating for hearing loss. The amended regulations added two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first new provision, that of 38 C.F.R. § 4.86(a), indicates that if puretone thresholds at each of the four frequencies of 1,000, 2,000, 3,000, and 4,000 Hz are 55 dBs or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. Id. The second new provision, that of 38 C.F.R. § 4.86(b), indicates that when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dBs or more at 2,000 Hz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. The amended regulations changed the title of Table VIa from "Average Puretone Decibel Loss" to "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average." See 64 Fed. Reg. 25202 (May 11, 1999). Neither of these new provisions applies to the veteran's situation. Although some of the puretone thresholds shown on the July 1997 VA examination were 55 dBs or greater, such findings were not present in all four of the frequencies of 1,000, 2,000, 3,000, and 4,000 Hz. Furthermore, the audiometric evaluation did not show puretone thresholds of either 30 decibels or less at 1,000 Hz or 70 dBs or more at 2,000 Hz in either ear. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board sympathizes with the veteran's difficulties due to hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the preponderance of the evidence is against his claim for a compensable disability rating for bilateral hearing loss. ORDER Entitlement to an increased (compensable) evaluation for bilateral hearing loss is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals