Citation Nr: 0006097 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-25 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from January 1964 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1996 rating decision from the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which continued a noncompensable evaluation for service-connected left ear hearing loss. By rating decision in July 1997, the RO granted service connection for right ear hearing loss with a noncompensable evaluation, effective from May 6, 1997. The Board notes that the veteran also filed timely notices of disagreement to the August 1996 RO decision, which granted service connection for tinnitus with a noncompensable evaluation, effective from March 30, 1996, and to the November 1996 RO decision, which denied entitlement to nonservice-connected disability pension benefits. However, on his VA Form 9, substantive appeal, received in July 1997, the veteran withdrew both of these issues from consideration. A notice of disagreement may be withdrawn in writing before a timely substantive appeal is filed. 38 C.F.R. § 20.204(a) (1999). In addition, the Board notes that by rating decision in May 1999, the RO granted entitlement to nonservice- connected disability pension benefits. Therefore, the issues of a compensable initial evaluation for service-connected tinnitus and entitlement to nonservice-connected disability pension benefits are not currently before the Board. FINDING OF FACT The veteran's service-connected hearing loss is manifested by average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, demonstrating Level I hearing in the right ear and Level II-IV hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.85, Tables VI, VIA & VII, Diagnostic Code 6100, and 4.86 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran filed an initial claim for VA benefits for service connection for hearing loss in June 1971. By rating decision in October 1971, the RO granted service connection for high-frequency deafness with a noncompensable evaluation, effective from May 29, 1971. By rating decision in May 1985, the RO noted that service connection was in effect for left ear hearing loss, but not for right ear hearing loss. In April 1996, the veteran requested that his hearing loss be re-evaluated as it had become worse. A July 1996 VA audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 40 55 LEFT 10 5 50 50 60 The average pure tone threshold in the right ear was 30 and in the left ear 41. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 84 percent in the left ear. The audiologist noted that the veteran demonstrated high frequency sensorineural hearing loss bilaterally. In his VA Form 9, substantive appeal, received in July 1997, the veteran stated that it was almost impossible for him to hear in a crowded room and to ascertain the direction from which a noise was coming. A March 1999 VA audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 50 60 LEFT 20 25 65 70 75 Average pure tone threshold in the right ear was 39 and in the left ear 59. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 82 percent in the left ear. II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1998). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). In determining the disability evaluation, the 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 conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1998). The Board notes that effective June 10, 1999, during the pendency of this appeal, the VA's schedule for rating disabilities, 38 C.F.R. Part 4, was amended with regard to rating hearing impairments and other diseases of the ear. 64 Fed. Reg. 25208 (codified at 38 C.F.R. § 4.85-4.87). Because the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him, within the confines of 38 C.F.R. § 3.114(a) (1999). See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO has notified the veteran of the revised regulations, by letter dated in July 1999. The RO indicated that the change in the regulation had no effect on the outcome of the veteran's claim. Thus, the Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of the original and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394 (1993). The severity of hearing loss is ascertained, for VA rating purposes, by application of the criteria set forth at 38 C.F.R. § 4.87 of the Schedule. Evaluations of bilateral 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 of 1,000, 2,000, 3,000 and 4,000 hertz. Audiometric test results can be translated into a numeric designation ranging from level I to level XI to evaluate the degree of disability from hearing loss. The degree of disability is determined by application of a rating schedule that establishes eleven auditory acuity levels, ranging from Level I (for essentially normal acuity) through Level XI (for profound deafness). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 through 6110 (1998). The assignment of disability ratings in hearing cases is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. The July 1996 audiological evaluation showed an average pure tone threshold in the right ear of 30 decibels and of 41 decibels in the left ear, and speech discrimination of 94 percent in the right ear and 84 percent in the left ear. This constitutes level I hearing in the right ear and level II hearing in the left ear and is entitled to an evaluation of 0 percent. 38 C.F.R. §§ 4.85, 4.87 Tables VI & VII, Diagnostic Code 6100. The March 1999 audiological evaluation showed an average pure tone threshold in the right ear of 39 decibels and of 59 decibels in the left ear, and speech discrimination of 94 percent in the right ear and 82 percent in the left ear. This constitutes level I hearing in the right ear and level IV hearing in the left ear and is entitled to an evaluation of 0 percent. 38 C.F.R. §§ 4.85 Tables VI & VII, Diagnostic Code 6100. Under the revised regulation, 38 C.F.R. § 4.85, Table VIA may be used for exceptional patterns of hearing impairment. Either Table VI or VIA may be used, whichever results in a higher numeral, when: 1) The pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or 2) The pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (1999). The results of neither of the veteran's audiological evaluations meet these criteria. ORDER Entitlement to a compensable evaluation for service-connected bilateral hearing loss is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals