Citation Nr: 0000640 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 96-16 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss with otosclerosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran retired in March 1972 after more than twenty years of active service. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1994 rating decision from the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), which determined that a 10 percent evaluation was warranted for bilateral hearing loss with otosclerosis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. VA audiometric testing dated in May 1998 revealed pure tone threshold averages of 43 in the right ear and 105 in the left ear, and speech recognition ability of 94 percent in the right ear and zero percent in the left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for bilateral hearing loss with otosclerosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Upon VA examination dated in August 1954, audiometric testing revealed pure tone thresholds, in decibels, as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 40 LEFT 20 25 20 40 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. In a September 1954 rating decision, the RO determined that a 10 percent evaluation was warranted for perceptive deafness on the right. Service medical records reflect the veteran underwent a right stapedectomy in November 1969 and a left stapedectomy in February 1972. Upon separation examination dated in September 1971, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 20 25 40 LEFT 50 40 30 25 20 Upon VA examination dated in July 1972, diagnoses of bilateral otosclerosis and bilateral conduction type deafness with additional high frequency hearing loss were noted. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 45 LEFT 15 10 20 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 86 percent in the left ear. In an August 1972 rating decision, the RO determined that a noncompensable evaluation was warranted for postoperative bilateral deafness with bilateral otosclerosis. VA audiology evaluation dated in June 1983 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 25 55 LEFT 20 10 25 65 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. At his February 1984 RO hearing, the veteran testified that his hearing improved after his operations, but had begun to decrease lately. (Transcript, page 2). Upon VA examination dated in September 1989, an assessment of mild to moderate mixed hearing loss on the right and moderate to severe high frequency primarily sensorineural hearing loss on the left was noted. The examiner noted that the audiometric configuration was consistent with bilateral acoustic trauma. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 30 30 50 LEFT 25 15 30 60 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. At his May 1990 RO hearing, the veteran testified that he was unsatisfied with the way in which his hearing evaluations were conducted. (Transcript, pages 1-3). In a January 1991 decision, the Board determined that a compensable evaluation for bilateral deafness with postoperative bilateral otosclerosis was not warranted. VA treatment records dated from November 1993 to January 1994 reflect complaints of sudden hearing loss in the left ear and tinnitus in November 1993. An audiological record dated in November 1993 reflects an uninterpreted audiological graph and an impression of mild to profound sensorineural hearing loss with excellent word recognition in the right ear and moderate to profound mixed hearing loss with poor word recognition in the left ear was noted. Treatment records also reflect an assessment of probable seasonal rhinitis. The veteran was hospitalized and treated with hydrocortisone injections in November 1993. VA outpatient treatment records dated from January 1994 to October 1997 reflect continued treatment for hearing loss. A January 1994 radiology report of the temporal bones revealed no significant abnormalities. An uninterpreted audiological report dated in May 1994 reflects an impression of profound sensorineural hearing loss in the left ear and mild to severe mixed hearing loss in the right ear. It was noted that there was no significant change from a previous audiological examination. Tinnitus was noted in a January 1994 treatment record. A February 1994 record reflects that the veteran's left stapes prosthesis was removed. A postoperative diagnosis of purulent fistula was noted. Complaints of tinnitus were also noted. An April 1994 medical report reflects that the veteran underwent placement of a left ear stapes prosthesis and middle ear exploration. Upon VA audiological evaluation dated in July 1994, the examiner noted that the veteran was hospitalized in November 1993 for sudden hearing loss in the right ear with no improvement. It was also noted that a computed axial tomography scan was performed in January 1994 and the veteran subsequently had an explosion in February 1994. Diagnoses of bilateral otosclerosis and status post bilateral stapedectomies and sensorineural hearing loss in the right ear and no hearing in the left ear were noted. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 40 65 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of zero percent in the left ear. In an August 1994 rating decision, the RO determined that a 10 percent evaluation was warranted for bilateral hearing loss with bilateral otosclerosis, effective November 1993. At his May 1995 RO hearing, the veteran testified that the VA examinations did not adequately portray his hearing loss as they were conducted in a soundproof atmosphere. (Transcript, page 1). The veteran testified to difficulty hearing in normal environments such as restaurants and while driving. (Transcript, pages 2-3). The veteran also testified that the transmitter in his left ear picked up noise and made his discrimination of sound difficult. (Transcript, page 4). The veteran also reported difficulty understanding high voices. (Transcript, page 6). An uninterpreted VA audiological record dated in May 1995 reflects impressions of profound sensorineural hearing loss with no responses in the left ear and mild to profound mixed high frequency hearing loss in the right ear. An uninterpreted November 1996 audiology report reflects an impression of mild to severe mixed hearing loss in the right ear with excellent word recognition ability and profound hearing loss in the left ear. It was noted that the results were unchanged from May 1995. An October 1997 uninterpreted audiology report reflects an impression of mild to profound mixed hearing loss in the right ear and no response to stimuli at equipment limits in the left ear. Upon VA examination dated in May 1998, the veteran reported that the hearing in his right ear was gradually deteriorating. The veteran also reported difficulty with all conversations. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 45 55 LEFT 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of zero percent in the left ear. Bilateral and periodic tinnitus was also noted. At his November 1999 hearing before a member of the Board, the veteran testified that he had difficulty conversing with others while in the car and in restaurants as well as difficulty hearing the phone ring. (Transcript, page 5). The veteran also testified that he did not feel that the VA audiology examinations were accurate because they took place in soundproof booths. (Transcript, pages 5-6). The veteran asserted that there was a discrepancy between a March 1995 statement of the case and a 1994 VA examination. (Transcript, page 8). Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). Evaluations of defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with average hearing thresholds, with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes 11 auditory acuity levels, designated level I, for essentially normal acuity, through level XI for profound deafness. See 38 C.F.R. § 4.85 (1999). Disability evaluations for hearing impairment are derived by mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA has amended the regulations pertaining to the evaluation for hearing loss since the arrival of the veteran's appeal at the Board. These changes became effective June 10, 1999. When a 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 more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has not had the opportunity to evaluate the veteran's claim under the new regulations. However, in this case, the Board believes that a remand to afford the RO an opportunity to review the veteran's claim is not necessary. The pertinent regulations do not contain any substantive changes that affect this particular case, but add certain provisions that were already the practice of VA. See 64 FR 25202, May 11, 1999, codified at 38 C.F.R. § 4.85. The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been changed. The revised regulatory provisions also addressed the question of whether the speech discrimination testing employed by VA in a quiet room with amplification of sounds accurately reflect the extent of hearing impairment. Based upon research, two circumstances were identified where alternative tables could be employed. One was where the pure tone thresholds in each of the frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater. The second was where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hertz and below, and 70 decibels or more at 2000 Hertz. See 64 FR 25209, May 11, 1999, codified at 38 C.F.R. § 4.86. The record does not disclose thresholds in the right ear meeting either of these criteria. Although the left ear does meet these criteria, the Board has determined that application of either of these criteria does not result in any change in the level assigned to the left ear. As noted above, the most recent audiometric examination dated in May 1998 at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz revealed pure tone thresholds, in decibels, of 35, 35, 40, 45, and 55, respectively, for a pure tone threshold average (the average of the pure tone thresholds at the frequencies of 1000, 2000, 3000, and 4000) of 43 in the right ear. Speech discrimination of the right ear was noted as 94 percent. Such audiometric findings reflect level I hearing in the right ear. See 38 C.F.R. § 4.85 (1999). The most recent audiometric examination of the veteran's left ear in May 1998 at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz revealed pure tone thresholds, in decibels, of 105, 105, 105, 105, and 105, respectively, for a pure tone threshold average of 105 in the left ear. Speech discrimination of the left ear was noted as zero percent. Such audiometric findings reflect level XI hearing in the left ear. See 38 C.F.R. § 4.85 (1999). Upon application of the findings of level I hearing in the right ear and level XI hearing in the left ear, the veteran's hearing acuity currently warrants a 10 percent evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). In light of the foregoing, the preponderance of the evidence is against the veteran's claim of entitlement to an evaluation in excess of 10 percent for bilateral hearing loss, and the doctrine of reasonable doubt does not apply. The Board is cognizant of the veteran's contention that a discrepancy exists between a March 1995 statement of the case and a 1994 VA audiological evaluation. The Board concurs with the veteran that a discrepancy does exist between the March 1995 statement of the case and the audiological findings as reported on the July 1994 audiological evaluation report. However, the correct application of the numerical findings reported on the July 1994 audiological evaluation report does not warrant a different finding as to the disability evaluation warranted. The Board also notes that a discrepancy exists as to the left ear pure tone thresholds reported in the signed May 1998 audiological evaluation and in the May 1998 report of audiological evaluation. The signed May 1998 audiological evaluation reflects pure tone thresholds, in decibels, of 105 at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz with a pure tone threshold average of 105. However, the May 1998 report of audiological evaluation reflects pure tone thresholds, in decibels of 105, 105, 0, 0, and 0 at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz respectively, with a pure tone threshold average of 26. Viewing the evidence in the light most favorable to the veteran, the Board has relied upon the signed May 1998 audiological evaluation reflecting a pure tone average of 105 in reaching this decision. The Board also notes that the signed May 1998 audiological evaluation is consistent with previous medical evidence reflecting a profound hearing loss in the left ear. Finally, the Board is also cognizant of the veteran's contention that the VA audiology examinations do not accurately reflect his hearing disability in everyday life. However, the Board is bound by the regulations regarding the assignment of disability ratings for hearing impairment. Thus, in the absence of competent medical evidence of additional hearing loss in the right ear, an evaluation in excess of 10 percent for bilateral hearing loss with otosclerosis is not warranted at this time. ORDER An evaluation in excess of 10 percent for bilateral hearing loss with otosclerosis is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals