Citation Nr: 0001508 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-41 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from March 1948 to August 1968. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a December 1995 rating action in which the RO denied the veteran an increased (compensable) rating for left ear hearing loss. The effective date of the grant of service connection was June 1995. The veteran filed an NOD in August 1996, and the RO issued an SOC the same month. The veteran filed a substantive appeal in September 1996. In March 1997, the veteran testified before a hearing officer at the VARO in Columbia. A supplemental statement of the case (SSOC) was issued that same month. The veteran's appeal subsequently came before the Board, which, in a November 1998 decision, remanded the appeal to the RO for additional development. An SSOC was issued in April 1999. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Upon VA examination conducted in March 1999, the veteran's hearing acuity in his left ear was manifested by an average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz of 58 decibels (dB), and speech discrimination ability was 84 percent. 3. Application of the puretone average and speech discrimination scores to table VI results in the designation of (III) for the left ear, which, when applied to table VII, results in a percentage evaluation for hearing impairment of zero percent (i.e., noncompensable). 4. The test findings for hearing loss in the left ear do not show findings indicative of a compensable level of disability, at any time since the date of the initial claim based upon hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met at any time since the filing of the claim for service connection, under either the rating criteria in effect prior to, or the rating criteria in effect on and after June 10, 1999. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Codes 6100-6110 (1998 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the claims file reflects that, in July 1968, the veteran was medically examined for purposes of separating from active service. Upon audiometric testing, pure tone thresholds, in decibels, were reported, in box 71 of the Report of Medical Examination form, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 15 LEFT 0 10 40 25 35 In box 74 of the Report of Medical Examination form, it was noted, "#71 Hearing loss, lt [left] ear. NCD [not considered disqualifying]." In June 1995, the veteran filed a VA Form 21-526 (Veteran's Application for Compensation or Pension), in which he claimed service connection for tinnitus and for hearing loss of the left ear. In August 1995, the veteran was medically examined for VA purposes. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 40 50 50 LEFT 25 40 60 55 55 The average puretone thresholds, in the range from 1000 to 4000 cycles per second (hertz, or Hz), were 44 on the right and 53 on the left. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. The veteran denied the presence of tinnitus, and the examiner's summary noted mild to moderate bilateral sensorineural hearing loss. In an August 1995 rating action, the RO service connected the veteran for left ear hearing loss. The veteran's claim for service connection for tinnitus of the left ear was denied. In December 1995, the RO received additional service medical records pertaining to the veteran. In a rating action that same month, the RO denied the veteran's claim for an increased (compensable) rating for left ear hearing loss. In August 1996, the veteran filed an NOD, in which he noted that he was disagreeing with the December 1995 rating action concerning his claim for "loss of hearing bilateral." He also enclosed a copy of the above-described July 1968 service separation examination, and indicated his belief that it "disputes your V.A. audiology exam conducted on 8 Aug 95." In March 1997, the veteran testified before a hearing officer at the VARO in Columbia. Under questioning he stated that, since 1995, the hearing in his left ear had become worse. He reported that, in a crowded room, he could not hear people if they were speaking to him on his left side, although if they spoke in a raised voice he could make out some words. The veteran further reported that he was not experiencing any pain in his left ear. In addition to his testimony, the veteran submitted evidence into the record at the hearing. This consisted of a audiology examination, dated in March 1997, from Audiology Associates of Spartanburg. The examiner, in this instance, charted the veteran's test results on a graph rather than recording them through numerical findings. The hearing levels reported appear to be 25/40/40/50/55 decibels (right ear) and 30/45/65/60/65 decibels (left ear) (these interpretations are approximations from the graph), at the 500/1000/2000/3000/4000 hertz levels. It was noted that a three-frequency ANSI P/T average resulted in 35 dB HL [hearing loss] in the right ear, and 47 dB HL in the left. It appears those averages were computed using the threshold levels at 250, 500, and 1000 Hz. Speech recognition scores were not recorded. Thereafter, following the Board's remand in November 1998, the veteran again underwent VA examination. He reported that he suffered from bilateral hearing loss, left greater than the right, with his hearing most affected in crowds. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 40 50 No report LEFT 30 45 60 65 60 The average puretone thresholds, in the range from 1000 to 4000 cycles per second (hertz, or Hz), were 45 on the right and 58 on the left. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 84 percent in the left ear. The veteran additionally reported that he did not suffer from tinnitus. The examiner's summary noted mild to moderate sensorineural hearing loss in the right ear, and a moderate to moderately severe sensorineural hearing loss in the left ear. II. Analysis The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim, which is plausible. This finding is based in part on the veteran's assertion that his service-connected left ear hearing loss is more severe then previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); 38 C.F.R. §§ 4.1, 4.2 (1999). Before addressing the merits of this case, the Board notes that, during the pendency of the appeal, VA issued new regulations for evaluating diseases of the ears and other sense organs, effective June 10, 1999. See 64 Fed. Reg. 25,202 through 25,210 (May 11, 1999). The new regulations were codified at 38 C.F.R. §§ 4.85-4.87a (1999). The RO did not apply the revised criteria in its evaluation of the veteran's service-connected left ear hearing loss. In these circumstances where new regulations are promulgated, it is the usual practice to remand the issue to the RO to afford the appellant due process, in the sense that consideration is given to both the new and the old rating criteria by the RO in the first instance. However, we are cognizant that the pertinent regulatory amendments did not result in any substantive changes relevant to this appeal. Essentially, the old and new regulations for evaluating disability from a hearing loss disorder are identical. See 64 Fed. Reg. 25,202 (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). Thus, where there has been no significant change in the substantive criteria directly affecting the appeal, the Board has determined that there is no prejudice to the appellant in proceeding to consider the issue. A remand of the issue would only needlessly delay consideration of the appellant's claim, without any benefit to the appellant. The Board further notes that the medical record is fully developed and the veteran has had ample opportunity to advance argument and evidence as to the functional limitations produced by his service-connected disability. Accordingly, there is no prejudice in the Board reviewing the claim on the merits. See Bernard v. Brown, 4 Vet.App. 384 (1993). Therefore, the Board will proceed with the analysis of the merits of the veteran's claim of an increased rating for left ear hearing loss. Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991). See also Baker v. West, 11 Vet.App. 163, 168 (1998). In reviewing this case, the Board must therefore evaluate the veteran's left ear hearing loss under both the old and current regulations to determine whether he is entitled to a compensable evaluation under either set of criteria. In this case, neither set of rating criteria can be more favorable to the veteran's claim, since the criteria are essentially identical. We note that, in particular, under the new regulations, the title of Table VI was changed from "Numeric Designations of Hearing Impairment" (38 C.F.R. § 4.87 (1998)) to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" (38 C.F.R. § 4.85 (1999)). Moreover, Table VII reflects that hearing loss is now rated under a single Code, that of Diagnostic Code 6100, regardless of the percentage of disability. Furthermore, the amended regulations added 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 that some veterans experience. See 64 Fed. Reg. 25,203 (May 11, 1999). Under 38 C.F.R. § 4.86(a), if puretone thresholds in the 1000, 2000, 3000, and 4000 Hertz frequencies are 55 dB's or more, an evaluation could be based upon either Table VI or Table VIa, whichever results in a higher evaluation. In addition, under section 4.86(b), when a puretone threshold is 30 dB or less at 1000 Hertz, and is 70 dB or more at 2000 Hertz, an evaluation could also be based either upon Table VI or Table VIa, whichever results in a higher evaluation. In the present case, the severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (1999). Under these criteria, evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a) and (d) (1999). To evaluate the degree of disability for service-connected left ear 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, Diagnostic Code 6100 (1999). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet.App. 9 (1998); Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is "V" for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the veteran's disability rating. In this case, given that the veteran's impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service- connected ear will be assigned a Roman Numeral designation for hearing impairment of "I", subject to the provisions of 38 C.F.R. § 3.383. In reviewing the evidence, we note that the veteran's most recent VA audiological evaluation, in March 1999, revealed an average puretone threshold hearing level of 58 dB for the left ear, with a speech discrimination score of 84 percent. Application of these scores to table VI results in designation of "III" for the left ear. When this designation of impaired efficiency is applied to table VII, with the right ear (the better ear), designated "I", the percentage evaluation for hearing impairment is zero percent, i.e., noncompensable, under Diagnostic Code 6100. The Board has also considered sections 4.86(a) and (b) with respect to the veteran's claim. We find, however, that the most recent evidence does not reflect puretone thresholds in the 1000, 2000, 3000, and 4000 Hertz frequencies at 55 dB's or more; or a simultaneous puretone threshold of 30 dB or less at 1000 Hertz and a puretone threshold of 70 dB or more at 2000 Hertz. We observe that the current noncompensable (zero percent) disability rating has been in effect since the date of receipt of the veteran's original claim based upon hearing loss, i.e., June 1995. The Court of Appeals for Veterans Claims has addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. See Fenderson v. West, 12 Vet.App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, supra, as to the primary importance of the present level of disability, was not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings can be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. In view of the Court's holding in Fenderson, the Board has considered whether the veteran was entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. However, upon reviewing the longitudinal record in this case, we find that, at no time since the filing of the veteran's claim for service connection, in June 1995, has his left ear hearing loss been more disabling than as currently rated under this decision. The Board thus concludes that, while the veteran sincerely believes his hearing is more severe than the current schedular rating assigned, the evidence of record reflects that the current noncompensable rating for left ear hearing loss is appropriate. ORDER Entitlement to a compensable rating for left ear hearing loss is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals