Citation Nr: 0005531 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 92-06 353A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating greater than 50 percent for non-psychotic organic brain syndrome (OBS) due to brain trauma with headaches and dizziness. 2. Entitlement to a compensable disability rating for bilateral hearing loss with right tympanoplasty. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1979 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case returns to the Board following a July 1998 remand to the RO. The issues of entitlement to an increased evaluation for non- psychotic OBS with headaches and dizziness and entitlement to TDIU are addressed in the REMAND portion of the decision, below. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. At present, the veteran has Level II hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss with right tympanoplasty have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.85, Diagnostic Code 6100, Tables VI and VII (1999); 38 C.F.R. § 4.87, Diagnostic Code 6101, Tables VI and VII (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The RO originally awarded service connection for bilateral hearing loss with right tympanoplasty in a June 1982 rating decision. At that time, it assigned a noncompensable (0 percent) disability rating. In November 1991, the veteran submitted an informal claim for increased evaluations for his service-connected disabilities. In connection with that claim, the veteran was afforded a VA audiological examination in December 1991. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVE. RIGHT ----- 45 55 80 80 65 LEFT ----- 35 25 55 65 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. It was noted that the veteran would require hearing aids for effective communication. In a January 1992 rating action, the RO denied an increased rating hearing loss. The veteran timely appealed that decision. The veteran testified at a personal hearing in September 1992. He offered no testimony as to his hearing loss disability. Pursuant to the Board's remand, the veteran was afforded a VA audiology examination in April 1999. Evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVE. RIGHT ----- 35 60 75 85 64 LEFT ----- 25 25 50 60 40 Speech audiometry revealed speech recognition ability of 100 percent in both ears. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's bilateral hearing loss is evaluated as noncompensable. During the pendency of the veteran's appeal, VA promulgated new regulations amending the rating criteria for hearing impairment, effective June 10, 1999. See 64 Fed. Reg. 25,202 - 25,210 (codified at 38 C.F.R. pt. 4). Generally, where the 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 most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding Karnas. Rhodan v. West, 12 Vet. App. 55, 57 (1998). The Board notes that the RO considered the amendments to the regulations in its August 1999 supplemental statement of the case, such that the veteran is not prejudiced by the Board's current consideration of his claim. Bernard, 4 Vet. App. at 392-94. In any event, after careful review of the regulations in question, the Board finds that the changes are not significant to this particular veteran's claim and that the amended regulation is not more favorable to the veteran than the previous version. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average pure tone decibel loss and speech discrimination percentage scores. 38 C.F.R. § 4.87, Table VI (1998); 38 C.F.R. § 4.85(b), Table VI (1999). Disability ratings are assigned by combining a level of hearing loss in each ear. 38 C.F.R. § 4.87, Table VII (1998); 38 C.F.R. § 4.85(e), Table VII (1999). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (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). In this case, applying the results of both VA examinations to Table VI yields a Roman numeral value of II for the right ear and I for the left ear. Applying these values to Table VII, the Board finds that the veteran's hearing loss is evaluated as 0 percent disabling. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss with right tympanoplasty. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Code 6100 (1999); 38 C.F.R. § 4.87, Code 6101 (1998). ORDER Entitlement to a compensable disability rating for bilateral hearing loss with right tympanoplasty is denied. REMAND In the July 1998 remand, the Board observed that the claims folder was missing both VA and private medical records. The remand instructed the RO to contact the veteran in writing and request that he provide the complete names and addresses of any VA or private health care providers who provided medical or psychiatric care for OBS since April 1992. The RO was to secure records of that treatment after obtaining the necessary releases. In August 1998, the RO sent a letter to the veteran with substantially similar language as that set forth in the remand instructions. The RO did not receive a response to this letter. In any event, VA is charged with constructive, if not actual, knowledge of evidence generated by VA. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the RO must secure the veteran's VA treatment records, despite the veteran's failure to respond to the August 1998 letter. The Board notes that the veteran indicated in his November 1991 claim for an increase that he was receiving outpatient treatment at the Hines VA medical facility. Because entitlement to TDIU is predicated on a veteran's total service-connected disability, the Board finds that the two issues are inextricably intertwined, such that the Board cannot adjudicate the TDIU claim until the claim for an increased rating for OBS is resolved. Therefore, the appeal with respect to entitlement to TDIU is held in abeyance pending disposition of the other claim. In addition, the VA records may be relevant to the veteran's claim of unemployability. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should attempt to obtain the veteran's VA outpatient treatment records from the VA facility in Hines, Illinois, from November 1990 to the present. These records should be associated with the claims folder. 2. After completing any necessary development in addition to that specified above, the RO should readjudicate the veteran's claim for an increased disability evaluation for non-psychotic OBS with headaches and dizziness and the claim for entitlement to TDIU. If the disposition of either claim remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals