Citation Nr: 0002812	
Decision Date: 02/04/00    Archive Date: 02/10/00

DOCKET NO.  94-42 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a higher initial rating for service-connected 
bilateral hearing loss, currently rated as noncompensable.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

K. Johnson, Associate Counsel






INTRODUCTION

The veteran served on active duty from September 1966 to 
April 1990.  

This matter came to the Board of Veterans' Appeals (Board) 
from a November 1990 decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Philadelphia, 
Pennsylvania, which granted the claim of entitlement to 
service connection for bilateral hearing loss.  In that same 
decision, the RO also denied the claims of service connection 
for malaria and rash on the feet.  In November 1991, VA 
received the veteran's notice of disagreement with these 
matters, and a statement of the case was issued that 
December.  The veteran's substantive appeal was received in 
March 1992.  

In December 1993, the RO granted the claim of service 
connection for tinea pedis, and in March 1999, the RO granted 
the claim of service connection for residuals of malaria.  
Appellate action regarding these decisions has not been 
initiated.  Therefore, the Board no longer has jurisdiction 
over the issues.  See Grantham v. Brown, 114 F.3d 1156 (Fed. 
Cir. 1997).  


FINDINGS OF FACT

1.  All available relevant evidence necessary for disposition 
of the veteran's appeal has been obtained by the RO.

2.  The veteran has level I hearing bilaterally, and at worst 
has had level II hearing in one ear and level I in the other.  

3.  The puretone threshold at each specified frequency of 
1000, 2000, 3000, and 4000 Hertz, is not 55 decibels or more, 
and is not both 30 decibels or less at 1000 Hertz, and 70 
decibels or more at 2000 Hertz.

4.  The veteran does not suffer from deafness and the degree 
of his hearing loss is not comparable to deafness.


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-
connected bilateral hearing loss have not been met.  38 
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.7; 
38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 
(effective prior to June 10, 1999); 38 C.F.R. § 4.85, 4.86, 
Diagnostic Code 6100 (effective June 10, 1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The service medical records document findings of high 
frequency sensorineural hearing loss.  

In a June 1990 VA examination report, it was noted that the 
veteran's auditory canals were clear, and that the tympanic 
membranes were intact and freely mobile.  Weber revealed no 
lateralization, and Rinne was positive bilaterally.  It was 
indicated that Schwabach decreased bilaterally when compared 
with the examiner.  The examiner noted, on the basis of 
history, a diagnosis of high tone sensorineural hearing loss.  

On the authorized audiological evaluation in July 1990, pure 
tone thresholds, in decibels, were as follows:








HERTZ



1000
2000
3000
4000
Average
RIGHT
10
0
60
90
40
LEFT
0
5
40
80
31

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear, and of 98 percent in the left ear.  

By rating decision of November 1990, service connection was 
granted for bilateral hearing loss.  The disability was rated 
as noncompensable.  

In a November 1992 VA examination report, it was noted that 
the veteran's auditory canals were clear, and that the 
tympanic membranes were intact and freely mobile.  Weber 
revealed no lateralization, and Rinne was positive 
bilaterally.  It was mentioned that Schwabach decreased 
bilaterally when compared with the examiner, markedly so on 
the right and less on the left.  The examiner noted a 
diagnosis of bilateral sensorineural hearing loss, worse on 
the right than the left.  

On the authorized audiological evaluation in December 1992, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
70
90
LEFT
10
10
15
40
80

The four frequency average was 46 for the right ear and 36 
for the left ear.  Speech audiometry revealed speech 
recognition ability of 90 percent in the right ear and 92 
percent in the left ear.  The examiner determined that the 
veteran exhibited hearing within normal limits through the 
speech frequencies accompanied by severe high frequency 
sensorineural hearing loss in the right ear and moderately 
severe high frequency sensorineural hearing loss in the left 
ear.  Acoustic immittance testing revealed adequate middle 
ear functioning bilaterally.  The examiner commented that 
there could be some benefit from at least a trial period of 
amplification and recommended that the veteran wear ear 
protection if he ever worked in hazardous noise conditions 
again.  

On the authorized audiological evaluation in January 1994, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
75
90
LEFT
10
10
5
40
85

The examiner reported that the four frequency average equaled 
45 for the right and 35 for the left.  Speech audiometry 
revealed speech recognition ability of 92 percent in the 
right ear and 94 percent in the left ear.  The examiner 
determined that the veteran exhibited hearing within normal 
limits through the speech frequencies accompanied by severe 
high frequency sensorineural hearing loss bilaterally.  
Acoustic immittance testing revealed adequate middle ear 
functioning in both ears.  The benefit from binaural 
amplification was noted.  

In a February 1994 examination report, it was noted that the 
veteran's auditory canals were clear, and that the tympanic 
membranes were intact and freely mobile.  Weber revealed no 
lateralization, and Rinne was positive bilaterally.  It was 
noted that Schwabach decreased bilaterally when compared with 
the examiner.  The examiner noted a diagnosis of moderately 
severe bilateral sensorineural hearing loss.  

On the authorized audiological evaluation in January 1999, 
pure tone thresholds, in decibels, were as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
75
90
LEFT
20
10
10
50
85

The examiner noted that the four frequency average equaled 48 
for the right ear and 39 for the left ear.  Speech audiometry 
revealed speech recognition ability of 92 percent in the 
right ear and of 96 percent in the left ear.  The examiner 
concluded that the pure tone air and bone conduction test 
results revealed severe, high frequency sensorineural hearing 
loss bilaterally.  Acoustic immittance testing revealed 
adequate middle ear functioning bilaterally.  Acoustic 
reflexes were absent with contralateral stimulation.  Speech 
reception thresholds were in agreement with pure tone 
results.  The examiner commented that the test results 
indicated the continued need for binaural amplification.  

II.  Legal Analysis

The Board finds that the veteran's claim is well-grounded.  
38 U.S.C.A. § 5107(a) (West 1991).  The United States Court 
of Appeals for Veterans Claims (Court) has held that, when a 
veteran claims that a service-connected disability has 
increased in severity, the claim is well grounded.  
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  The Board is 
also satisfied that all relevant facts have been properly 
developed and that VA has fulfilled its duty to assist the 
veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 
3.103(a).  

Disability evaluations are based upon the average impairment 
of earning capacity resulting from a disability.  38 U.S.C.A. 
§ 1155 (West 1991).  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).  Consideration is to be given to all other 
potentially applicable provisions of 38 C.F.R. Parts 3 and 4, 
whether or not they have been raised by the veteran, as 
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Service connection is currently in effect for bilateral 
hearing loss, and is rated as noncompensable under the 
provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999).  
Since the initial grant of service connection for bilateral 
hearing loss and the veteran's initiation of his appeal, 
amendments were made to the rating criteria used to evaluate 
the service-connected disability at issue.  64 Fed. Reg. 
25206-25209 (1999).  The new rating criteria took effect on 
June 10, 1999.  

The Court has stated that where the 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 appellant will apply unless 
Congress provides otherwise.  Karnas v. Derwinski, 1 Vet. 
App. 308 (1990).  The Court has further stated that when the 
Board addresses in its decision a question that was not 
addressed by the RO, the Board must consider the question of 
adequate notice of the Board's action and an opportunity to 
submit additional evidence and argument.  If not, it must be 
considered whether the veteran has been prejudiced thereby.  
Bernard v. Brown, 4 Vet. App. 384, 393 (1993).  In addition, 
if the Board determines that the claimant has been prejudiced 
by a deficiency in the statement of the case, the Board 
should remand the case to the RO pursuant to 38 C.F.R. § 
19.9, specifying the action to be taken.  Bernard v. Brown, 4 
Vet. App. 384, 394 (1993).  

In this case, the changes do not significantly affect the 
veteran's case since the tables used to rate the disability 
have essentially remained unchanged in substance.  Hence, the 
Board will not remand the case to the RO for initial 
consideration of the veteran's entitlement to a higher rating 
for this disability under the revised regulatory criteria.

Under the old and new version of 38 C.F.R. § 4.85, Diagnostic 
Code 6100, evaluations for 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 level as measured by pure tone audiometric tests in 
the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz.  To 
evaluate the degree of disability for bilateral service-
connected defective hearing, the rating schedule establishes 
11 auditory acuity levels, designated from level I for 
essential normal acuity through level XI for profound 
deafness.  

Audiometric findings from the last VA audiological 
evaluation, in January 1999, translate into literal 
designations of level I hearing bilaterally, which does not 
support the assignment of a compensable evaluation as per the 
old and new version of Diagnostic Code 6100.  In making this 
determination, the Board has considered the evidence of 
record, which consists of VA audiograms since the veteran's 
separation from service.  Such evidence is consistent with 
the hearing acuity reflected on the most recent VA 
examination in January 1999.  The December 1992 audiogram 
shows the greatest degree of hearing loss, with level II 
hearing on the right and level I on the left.  But this still 
calls for a 0 percent rating under 38 C.F.R. § 4.85(h), Table 
VII, Diagnostic Code 6100, and their predecessors.

The Board has also considered the veteran's contentions 
contained in the record that his hearing loss is more severe 
than demonstrated, and that the noncompensable evaluation 
does not adequately reflect the severity of his bilateral 
hearing loss.  Although the veteran's contention is credible, 
it may not serve to establish entitlement to a higher rating 
for hearing loss because "...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).  Here, such mechanical 
application establishes that a noncompensable rating is 
warranted.  

It is noted that the veteran uses amplification.  However, 
under the prior version of 38 C.F.R. § 4.86, it is provided 
that the evaluations derived from the schedule are intended 
to make proper allowance for improvement by hearing aids, and 
that examination to determine this improvement is therefore 
unnecessary.  

The revised version of 38 C.F.R. § 4.86 addresses the matter 
of exceptional patterns of hearing impairment.  When the 
puretone threshold at each of the four specified frequencies 
(1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 
the rating specialist will determine the Roman numeral 
designation for hearing impairment from either Table VI or 
Table VIa, whichever results in the higher numeral.  Each ear 
will be evaluated separately.  38 C.F.R. § 4.86(a) (1999).  
When the puretone threshold is 30 decibels or less at 1000 
Hertz, and 70 decibels or more at 2000 Hertz, the rating 
specialist will determine the Roman numeral designation for 
hearing impairment from either Table VI or Table VIa, 
whichever results in the higher numeral.  That numeral will 
then be elevated to the next higher Roman numeral.  Each ear 
will be evaluated separately.  38 C.F.R. § 4.86(b) (1999).  
However, given the results of the audiological evaluations of 
record, these provisions of the current version of 38 C.F.R. 
§ 4.86 are not applicable.  

The current version of 38 C.F.R. § 4.85(g) provides that 
reference should be made to 38 C.F.R. § 3.350 to determine 
whether the veteran may be entitled to special monthly 
compensation due to either deafness, or to deafness in 
combination with other specified disabilities.  Here, such 
consideration is not necessary since the findings of record 
do not establish that the veteran suffers from deafness or 
that the degree of hearing loss is comparable to deafness.

In this case, the veteran is in disagreement with the initial 
rating assigned for his bilateral hearing loss.  Thus the 
Board must consider the rating, and, if indicated, the 
propriety of a staged rating, from the initial effective date 
forward.  See Fenderson v. West, 12 Vet. App. 119 (1999).  
With regard to the disability at issue, the Board finds that 
the evidence does not demonstrate that there was in increase 
or decrease in the disability that would suggest the need for 
staged ratings since each of the evaluations of record call 
for a 0 percent rating.

In light of the application of the available rating criteria 
in the Diagnostic Code, the Board finds that the veteran's 
disability picture does not approximate the criteria 
necessary for a higher disability evaluation.  38 C.F.R. § 
4.7 (1999).  Here, the preponderance of the evidence is 
against the veteran's claim, therefore the application of the 
benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 
5107 (West 1991) is inappropriate in this case.


ORDER

Entitlement to a compensable evaluation for service-connected 
bilateral hearing loss has not been established, and the 
appeal is denied. 



		
	J. E. Day
	Member, Board of Veterans' Appeals