Citation Nr: 0007395 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-34 006 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for bilateral defective hearing, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs INTRODUCTION The veteran served on active military duty from March 25, 1943, to January 31, 1973; he had 8 months and 11 days of other service prior to March 25, 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Huntington, West Virginia RO satellite rating board. REMAND Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria); 38 C.F.R. § 4.85 (1998); 38 C.F.R. § 4.85 (1999). The provisions of the rating criteria governing the evaluation of service-connected hearing loss were changed on June 10, 1999. 64 Fed. Reg. 25209 (May 11, 1999). Nevertheless, the criteria in effect both before and after the change have established eleven auditory acuity levels designated from I to XI. Whether viewing the old or new criteria, Tables VI and VII as set forth in § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85 (1998); 38 C.F.R. § 4.85 (1999). In instances where, because of language difficulties, the Chief of the Audiology Clinic certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa of § 4.85 is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c) (1998); 38 C.F.R. § 4.85(c) (1999). Under the criteria that became effective in June 1999, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (1999). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (1999). In conjunction with the veteran's claim for an increased rating, he underwent VA audiometric evaluation in October 1996. His puretone thresholds were 45, 80, 75, and 65 decibels in the right ear, and 60, 55, 65, and 70 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz, respectively. He had speech discrimination scores of 64 percent correct in the right ear and 76 percent correct in the left ear. Thereafter, the veteran submitted test results obtained at the Riverside Regional Medical Center almost a year later in August 1997. He asserts that these later results reflect a decrease in hearing acuity since the October 1996 VA examination. The Board agrees that the later evidence suggests a worsening of the veteran's service-connected hearing loss. His speech recognition scores were lower and puretone thresholds in certain tested frequencies appeared to be higher. However, as the veteran noted, the results at the Riverside Regional Medical Center were not complete enough to apply the rating criteria used to evaluate hearing loss. Therefore, given the veteran's report of worsening hearing acuity, and the August 1997 medical evidence that tends to support his allegation, the Board finds that further evidentiary development is warranted in order to ascertain the current level of disability experienced by the veteran. Additionally, given the change in the criteria, at least as to the manner of rating now required by 38 C.F.R. § 4.86 (1999), further action by the RO with these rating criteria changes in mind would be helpful. This case is REMANDED to the RO for the following actions: 1. The veteran should be scheduled for audiometric testing of the type that complies with the provisions of 38 C.F.R. § 4.85 (1999), and that includes findings necessary to apply pertinent rating criteria. 2. The RO should thereafter re- adjudicate the claim for an increased rating. Both old and new rating criteria should be considered, with those more favorable to the veteran's claim being applied. 38 C.F.R. §§ 4.85, 4.86, 4.86a, 4.87 (1998); 38 C.F.R. §§ 4.85, 4.86 (1999). If the benefit sought is not granted, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice; however, the veteran is free to supplement the record with additional evidence and/or argument. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).