Citation Nr: 0002294 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-13 770A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased (compensable) original disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant; spouse ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, which granted a claim by the veteran seeking entitlement to service connection for hearing loss, assigning a noncompensable (0 percent) disability rating. The veteran agreed with the grant of service connection, but appealed the disability rating assignment, contending that a higher rating was warranted. It is noted that the appellant appeared at a hearing before the undersigned Member of the Board on November 18, 1999 at which time the appellant and his spouse testified with respect to the claim now at issue before the Board. A transcript of that hearing has been associated with the record on appeal. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been developed. 2. Service-connected bilateral hearing loss was recently manifested by average puretone thresholds, at 1000, 2000, 3000, and 4000 Hertz, of 48 decibels in the right ear and 46 decibels in the left ear, with speech recognition ability of 96 percent correct bilaterally. 3. The evidence does not show an exceptional nor unusual disability picture, such as frequent hospitalization or marked interference with employment, rendering impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an increased (compensable) original disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code (DC) 6100 (1998); 38 C.F.R. § 4.85-4.87, DC 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the veteran's claim is well grounded because he has established service-connection for hearing loss and has appealed the initial grant of less-than- complete benefits. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995) (where a veteran appeals the RO's initial assignment of a rating, for a service-connected disorder, that constitutes less than a complete grant of benefits permitted under the rating schedule, he has established a well-grounded claim). Because the veteran's claim is well grounded, VA has a duty to assist with the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that the veteran was provided recent VA audiological examination and Travel Board hearing, and was given the opportunity to submit evidence in support of his claim. Overall, the Board finds no evidence in the claims file indicating that there may be pertinent evidence available but not yet of record. Thus, the Board finds that no further assistance is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). II. Regulations Initially, the Board notes that the regulations pertaining to the rating of service-connected hearing loss under the Schedule for Rating Disabilities, 38 C.F.R. Part IV (Rating Schedule), were amended, effective June 10, 1999. See 64 FR 25202 (May 11, 1999). This change occurred during the pendency of the veteran's appeal. The United States Court of Appeals for Veterans Claims has held that, where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been conducted, the version of the law or regulation most favorable to the veteran shall be applied. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Here, the Board finds that neither set of regulations is more favorable to the veteran. The regulations were amended only to ensure that current medical terminology and unambiguous criteria were used and to reflect current medical advances. See 64 FR 25202 (May 11, 1999). The tables used to assign the Roman numerals and, then, to assign the appropriate disability rating remain unchanged. Id. The amended regulations do include additional provisions that pertain to hearing loss of 55 decibels or more in each of the 4 specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and to hearing loss with a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b) (1998), as amended by 64 FR 25202 (May 11, 1999). However, these provisions are not pertinent in this case. The veteran does not have hearing loss of 55 decibels in all 4 respective frequencies, nor a 30 decibel loss at 1000 Hertz and a 70 decibels loss at 2000 Hertz. Overall, the Board finds that the outcome of this case is the same under either set of regulations. Under either the old or amended regulations, evaluations of hearing loss range from noncompensable (0 percent) to 100 percent based on the severity of organic impairment of hearing acuity as noted 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. To evaluate the degree of disability from service- connected defective hearing, the revised rating schedule establishes 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, DC 6100 (1998); 38 C.F.R. §§ 4.85-4.87, DC 6100 (1999). When the issue involves a claim for an increased rating for hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. Id. It should be emphasized that "assignment of 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, 349 (1992). In order to evaluate the level of disability and any changes in condition, it is nevertheless necessary to consider the complete medical history of the veteran's conditions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, this is not applicable in an appeal from a rating assigned by an initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). III. Evidence The veteran's service medical records show that he had hearing loss upon induction into service. A December 1963 induction medical examination report shows that he had the following puretone thresholds upon entry into service: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 0 0 N/A 40 LEFT N/A 0 0 N/A 40 Hearing loss is also shown by a December 1965 service audiogram report and a February 1966 discharge report. These documents indicate that the veteran had high-frequency sensorineural hearing loss that existed prior to service, but was aggravated by service. A February 1966 physical profile record shows that the veteran was placed on permanent "2" profile due to partial loss of hearing, both ears. The veteran's November 1966 separation medical report reflects the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 15 50 LEFT 5 0 5 15 50 It reflects that the veteran had a high-frequency hearing loss defect. A December 1996 VA audiological examination report indicates the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 65 85 LEFT 15 15 25 65 80 Average puretone thresholds were 48 decibels in the right ear and 46 decibels in the left ear. Speech recognition was 96 percent correct bilaterally. Diagnosis was normal hearing from 250 to 2000 Hertz, bilaterally, sloping to a moderately severe to profound hearing loss from 3000 to 8000 Hertz in the right ear and to a moderately severe to severe hearing loss in the left ear. Speech discrimination was "very good," bilaterally. An October 1997 private audiological report shows the results of audiometric testing in graph form. The result are consistent with the December 1996 VA examination report. An undated CompuHealth examination summary shows that the veteran had apparent hearing loss bilaterally. Audiometric testing results showed the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 70 75 LEFT 10 20 25 65 70 The veteran testified before the undersigned member of the Board at the RO in November 1999. During the hearing, he stated that his hearing loss was not correctable and that a hearing aid would destroy his low-frequency hearing. He indicated difficulty hearing his spouse and the radio, television, and telephone. The veteran's representative argued that VA regulations pertaining to the rating of hearing loss do not take into consideration the "real world," and that he was against the current type of rating system. He requested extraschedular consideration for the veteran's hearing loss. IV. Analysis Applying the recent audiometric test results of the December 1996 VA evaluation report to Table VI of the Rating Schedule, the Roman numeric designation is I for the left ear and I for the right ear. 38 C.F.R. § 4.85, Table VI (1999). When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the result is a noncompensable (0 percent) disability rating for the veteran's service-connected hearing loss. 38 C.F.R. § 4.85, Table VII (1999). A noncompensable rating is also warranted based on the CompuHealth audiological results. The October 1997 private audiological results are consistent with this finding. Overall, no audiological evidence of record contains data indicating hearing loss of sufficient severity to warrant an increased (compensable) disability evaluation. The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected hearing loss; however, as noted above, in Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992), the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) held that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to numeric designations assigned after audiometric evaluations are rendered. Based on the application of the rating criteria to the audiometric evidence in this case, the Board finds that there is no evidence of record to support an increased (compensable) disability evaluation under VA rating criteria. Therefore, a compensable disability rating for the veteran's service- connected bilateral hearing loss may not be granted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.85-4.87, DC 6100 (1998); 38 C.F.R. §§ 4.85-4.87, DC 6100 (1999). The Board notes that the veteran appealed an initial disability rating assignment. This necessitates that the Board consider whether or not he was entitled to an increased disability rating at any time since the effective date of his initial grant of service connection, even if only temporarily. Fenderson, supra,(separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings) (citations omitted); see 38 C.F.R. §§ 3.400, 3.500 (1998). In this case, as stated above, no evidence of record, consisting of results of audiometric evaluation, indicate hearing loss of compensable degree. Thus, his disability is not entitled to a "staged rating." See Fenderson, supra. As stated above, the veteran's accredited representative requested that he be considered for an extraschedular rating. The law provides that: The Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). While the Board does not have the authority to actually assign an extraschedular rating, the regulations do not preclude the Board from considering whether a referral to the appropriate officials for assignment of an extraschedular rating is warranted. Floyd v. Brown, 9 Vet. App. 88 (1996); see also VAOPGCPREC 6-96 (August 16, 1996). In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court held that 38 C.F.R. § 3.321(b)(1) did not preclude the Board from affirming an RO conclusion that a claim did not meet the criteria for extraschedular submission, nor from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the appellant, because the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased rating claim before the RO. Bagwell, 9 Vet. App. at 339. In this case, the Board finds no exceptional circumstances rendering inapplicable the schedular disability rating standards. The Rating Schedule reflects the average impairment in earning capacity resulting from service- connected disabilities, 38 C.F.R. § 4.1 (1999), and no evidence in the claims file suggests that the veteran's hearing loss falls outside that contemplated by the Rating Schedule. Specifically, the evidence does not show hospitalization for hearing loss. In addition, marked interference with employment is not shown. The evidence shows that, after service, the veteran worked for VA for 28 years, most recently as a chief financial officer, before retiring. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); 38 U.S.C. § 1155 (1999); 38 C.F.R. §§ 3.321(b), 4.1 (1999). In light of the above, the veteran's claim is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER An increased (compensable) original disability rating for service-connected bilateral hearing loss is denied. A. BRYANT Member, Board of Veterans' Appeals