Citation Nr: 0003142 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-11 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION The veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. A. Mancini, Associate Counsel INTRODUCTION The veteran served on active duty from April 1971 to September 1979 and from September 1981 to April 1997. This matter comes to the Board of Veterans Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in Albuquerque, New Mexico. FINDING OF FACT A June 1997 VA examination shows that the veteran has an average pure tone threshold of 31 decibels in the right ear, with speech recognition ability of 92 percent, and average pure tone threshold of 33 decibels in the left ear, with speech recognition ability of 94 percent. CONCLUSION OF LAW The criteria for a compensable schedular evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (effective June 10, 1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks a compensable evaluation for his service- connected bilateral hearing loss. In the interest of clarity, the Board will first discuss the pertinent law and VA regulations. The Board will next address the factual background of this case, followed by an analysis of this issue. Relevant law and VA regulations Increased disability ratings - in general Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. § Part 4 (1999). Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through 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 (1991). The requirements set forth in these regulations for evaluation of the complete medical history of the veteran's condition operate to protect veterans against adverse decisions based on a single, incomplete or inaccurate report, and to enable the 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. 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. See 38 C.F.R. §§ 4.1, 4.2 (1998); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) ("the Court") held that evidence to be considered in the appeal of an initial assignment of a rating for a disability, such as here, was not limited to that reflecting the then-current severity of the disorder. 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 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). Schedular Criteria for Bilateral Hearing Loss Effective June 10, 1999, during the pendency of this appeal, the VA's Schedule, 38 C.F.R. Part 4, was amended with regard to evaluating hearing impairment and other diseases of the ear. 64 Fed. Reg. 25208, 25209 (1999) (codified at 38 C.F.R. §§ 4.85-4.87). The Court has held that where 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). Prior to June 10, 1999, the severity of hearing loss was determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, DC 6100 through 6110 (1998). Effective June 10, 1999, the severity of hearing loss continues to be determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, DC 6100 through 6110. See also 64 Fed. Reg. 25208 and 25209, published at 38 C.F.R. § 4.85-4.87 (effective June 10, 1999). Under both the new and old regulations, evaluations of bilateral defective hearing 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 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second). The Schedule allowed for such audiometric test results to be translated into a numeric designation ranging from Level I, for essentially normal acuity, to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. The evaluations derived from the schedule are intended to make proper allowance for improvement by hearing aids. See 38 C.F.R. § 4.85-4.87 (1998); See also 64 Fed. Reg. 25208 and 25209, published at 38 C.F.R. § 4.85 (effective June 10, 1999). Although the RO did not specifically refer to the change in the regulation, the Board concludes that this is not prejudicial in this case as the change in regulation was not a substantive change regarding the portion of the regulations pertinent to this veteran's claim. Consequently, the change has no effect on the outcome of this claim. See Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board finds, therefore, that it may proceed with a decision in this case without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additional law and VA regulations will be discussed where appropriate below. Entitlement to a compensable evaluation for service-connected bilateral hearing loss. Factual Background The veteran's service medical records reflect high frequency bilateral hearing loss. In November 1996, the veteran underwent an audiogram. Upon testing, pure tone thresholds, in decibels, were noted to be as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 35 50 LEFT 20 30 30 50 In April 1997, the veteran was evaluated at the WBAMC audiology clinic. Upon testing, pure tone thresholds, in decibels, were noted to be as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 40 50 LEFT 25 30 30 55 The examiner diagnosed bilateral, symmetrical high frequency sensorineural hearing loss. The examiner commented that a review of the veteran's records revealed a mild to moderate high frequency sensorineural hearing loss, which represented a progressive high frequency loss over the past 10-12 years. The examiner wrote "possible candidate for amplification." In June 1997, a VA audio evaluation was conducted. The veteran complained of having difficulty hearing some words in conversation. He also complained of constant tinnitus. Upon testing, pure tone thresholds, in decibels, were noted to be as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 35 50 LEFT 20 30 30 50 The veteran's pure tone average was noted as 31 decibels in the right ear and 33 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear. The VA examiner stated that middle ear measurements revealed normally compliant tympanometric configurations bilaterally consistent with normal nonpathological middle ear systems. Acoustic reflexes were present at all four frequencies tested, although elevated at 4000 Hertz. The examiner noted no acoustic reflex decay. Otoacoustic emissions were consistent with the audiometric thresholds bilaterally. In the diagnosis section of the examination report, the examiner stated that the veteran presented with bilateral mild-to-moderate high frequency sensorineural hearing loss. The examiner also noted that the audiological records did not indicate the necessity for medical intervention. Analysis Initial matters - well groundedness of the claim/duty to assist/standard of proof Initially, the Board finds that the veteran's claim of entitlement to a compensable evaluation for his service- connected bilateral hearing loss is well grounded in accordance with 38 U.S.C.A. § 5107(a). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Upon the submission of a well-grounded claim, the VA has a duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107. In the instant case, the veteran has been provided with a recent VA audio evaluation, and there is no indication that there are additional records that have not been obtained and which would be pertinent to the present claim. In his July 1998 substantive appeal, the veteran stated that he believed he had a more substantial hearing loss than indicated in the 1997 VA examination, and requested another VA hearing evaluation. He stated that the VA examination was conducted in a controlled environment (soundproof room) with the use of earphones. He indicated that he was sure his hearing under normal living environments warranted a higher evaluation. The Board points out that the veteran has not contended that the audiological examination was inadequate, merely that he would not be able to hear as much if ambient noise was present. The VA Schedule for Rating Disabilities specifically calls for hearing evaluation by audiological examination. See 38 C.F.R. § 4.85(a). The veteran's contention that he would not be able to hear as much in a noisier environment is irrelevant in the context of the type of evaluation which is required to be conducted in order to determine a proper schedular evaluation. The matter of an extraschedular rating will be considered below. The Board concludes that no further development is required in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). Once the evidence has been assembled, it is the Board's responsibility to weigh the evidence. When there is an approximate balance of 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); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Schedular evaluation The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The recent VA audiological evaluation, conducted in June 1997, reveals an average pure tone threshold of 31 decibels in the right ear and a speech recognition score of 92 percent in the right ear. The audio evaluation also reveals an average pure tone threshold of 33 decibels in the left ear, and a speech recognition score of 94 percent in the left ear. Applying these values to the rating schedule under both the new or old regulation results in a numeric designation of Level I hearing in both ears. Under Diagnostic Code 6100, a noncompensable evaluation is assigned where hearing is at Level I in both ears. Therefore, the results of the June 1997 audio evaluation do not support a compensable evaluation for bilateral hearing loss. 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (Effective June 10, 1999). The Board further notes that the April 1997 evaluation at the WBAMC audiology clinic results in a numeric designation of Level I hearing in both ears. Under Diagnostic Code 6100, a noncompensable evaluation would similarly be assigned based on this April 1997 examination. The Board recognizes that in the case of an appeal of an initial rating assignment, inquiry must be made upon all medical and lay evidence of record reflecting the severity of the veteran's disability since the submission of the claim. See Fenderson, 12 Vet. App. at 119. Thus, the Board has also considered whether the results of the veteran's November 1996 audiological evaluation warrant a compensable evaluation. The Board has calculated the pure tone threshold average pursuant to 38 C.F.R. § 4.85. The veteran's November 1996 audio evaluation reveals an average pure tone threshold of approximately 31 decibels in the right ear, and an average pure tone threshold of approximately 32 decibels in the left ear. Applying these values to the rating schedule under both the new or old regulation results in a numeric designation of Level I hearing in both ears. As noted above, under Diagnostic Code 6100, a noncompensable evaluation is assigned where hearing is at Level I in both ears. Thus, the results of the November 1996 evaluation also fail to support a compensable evaluation for bilateral hearing loss. 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.85- 4.87, Diagnostic Code 6100 (Effective June 10, 1999). Extraschedular evaluation The Court has held that the question of an extraschedular rating is a component of the veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996). Bagwell stands for the proposition that the Board may deny extraschedular ratings, provided that adequate reasons and bases are articulated. See also VAOPGCPREC 6-96 (finding that the Board may deny extraschedular ratings, provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure). Bagwell left intact, however, a prior holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996) which found that when an extraschedular grant may be in order, that issue must be referred to those "officials who possess the delegated authority to assign such a rating in the first instance," pursuant to 38 C.F.R. § 3.321. The Board notes that the RO concluded in the August 1998 Supplemental Statement of the Case that there was no evidence of marked interference with employment or frequent periods of hospitalization to render impractical the application of the regular schedular standards. The Board will, accordingly, consider the provisions of 38 C.F.R. § 3.321(b)(1). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). In this case, the veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The evidence of record does not show that the veteran's service-connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The record in this case does not demonstrate that the veteran's service-connected bilateral hearing loss disability markedly interferes with employment or that he has required frequent periods of hospitalization for this disability. The record reflects that the veteran stated in July 1998 that his hearing has deteriorated to the point that it interferes with his pursuit of a college degree and further employment in his field of expertise, air traffic control. He stated that he conversed with an official at the Department of Defense (DOD) who is responsible for hiring air traffic controllers. The veteran indicated that after discussing the results from the compensation and pension examination with the DOD official, that official gave his "unofficial opinion" that the veteran's chances for employment [as an air traffic controller] were "marginal at best." It does not appear from the record that the veteran has, in fact, sought employment in the field of air traffic control. Moreover, the veteran is compensated at the 10 percent level for another hearing-related disability, tinnitus; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board points out that the record does not show that neither the veteran or the DOD official possesses the requisite knowledge, skill, experience, training, or education to qualify as a medical expert. Their hypothetical statements as to the veteran's hearing loss (as opposed to tinnitus or any other factor) causing marked interference with employment as an air traffic controller cannot be considered competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). There is also no evidence that the veteran has required any hospitalization for his hearing loss disability. Thus, the evidence of record does not reflect any factor which takes the veteran outside of the norm, or which presents an exceptional or unusual disability picture. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) Accordingly, the Board determines that the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Final comments The Board wishes to make clear it has no reason to doubt the veteran's statement that he is having difficulty hearing, particularly in noisy environments. The Board points out, as noted above, that service connection is in effect for tinnitus and a 10 percent disability rating has been assigned. In summary, the objective clinical evidence does not support a compensable evaluation for bilateral hearing loss. As discussed above, the level of hearing that has been demonstrated on objective evaluation is not consistent with a compensable evaluation under the regulation. See Lendenmann, 3 Vet. App. 349. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for a compensable evaluation for bilateral hearing loss. The benefit sought on appeal is accordingly denied. ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. Barry F. Bohan Member, Board of Veterans' Appeals