Citation Nr: 0000372 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-13 415A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a compensable evaluation for service-connected left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from July 1970 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1996 rating decision of the Honolulu, Hawaii, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's left ear hearing loss is currently manifested by a pure tone average threshold of 40 decibels at 1,000, 2,000, 3,000 and 4,000 Hertz and by a speech recognition ability of no less than 60 percent; the veteran's right ear is not service-connected and he is not deaf in both ears. CONCLUSION OF LAW The criteria for a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, 4.86, 4.87, Diagnostic Code 6100 (1997); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999); VAOPGCPREC 32-97 (August 29, 1997). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). 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 (1999). 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 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. 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). The severity of hearing loss disability is ascertained, for VA rating purposes, by application of the criteria set forth at 38 C.F.R. § 4.87 of VA's Schedule. Under these criteria, the degree of disability for bilateral service-connected hearing loss 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 (1995); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1997). However, if a claimant has service-connected hearing loss in one ear and nonservice- connected hearing loss in the other ear, the hearing in the ear having nonservice-connected loss should be considered normal for purposes of computing the service-connected disability rating, unless the claimant is totally deaf in both ears. VAOPGCPREC 32-97 (August 29, 1997). See also Boyer v. West, 11 Vet. App. 477 (1998). 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 (1992). When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). 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. The veteran has been afforded an examination and opportunity to present evidence and argument in support of his claim. 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). When rating disability evaluations, generally, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. 38 C.F.R. § 4.14 (1999). In this case, service connection is in effect for the left ear only and there is no competent evidence showing the veteran to be deaf in either ear. Therefore, any defective hearing in the right ear may not be used in rating hearing loss in the right ear. See 38 C.F.R. § 3.383 (1999). However because the Schedule uses numeric designations from I to XI for both ears in determining an evaluation, the Schedule assumes that there is defective hearing in both ears. As such, to comply with the provisions of 38 C.F.R. § 4.14 and the criteria for rating defective hearing set forth in the Schedule, auditory acuity in the right ear must be presumed to be Level I. The VA examination in October 1996 showed left ear speech discrimination percentages of 60, 70 and then 80, and an average pure tone threshold loss of 40 decibels in the left ear. Those results constitute Level V, VI or III hearing under the Schedule, respectively, depending on which speech discrimination percentage used. See 38 C.F.R. § 4.85 (1997); 38 C.F.R. § 4.87 (1999). Regardless, when combined with the Level I assigned to the veteran's right ear, the veteran's left ear hearing loss may be assigned no more than a zero percent evaluation under the Schedule. See 38 C.F.R. § 4.85(f)(1999); VAOPGCPREC 32-97 (August 29, 1997). The Board has also reviewed the veteran's service medical records, consistent with Fenderson, supra. However, such records do not reflect decibel losses worse than those shown on examination in October 1996 and do not contain any speech recognition information. Nor does the record contain other audiometric results for application to the Schedule. Here, the Board recognizes the veteran's arguments that he has difficulty hearing, to include hearing his supervisor at work. Despite such, disability evaluations for hearing impairment are 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 veteran's currently demonstrated left ear hearing loss does not warrant assignment of a compensable evaluation under the Schedule. Nor does the evidence reflect that consideration of the provisions of 38 C.F.R. § 3.321(b)(1) (1999) is in order. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. The evidence in this case fails to show that the veteran's service-connected left ear hearing loss, in and of itself, is causing marked interference with his employment, or that such requires frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. The Board notes that effective June 10, 1999, regulations applicable to hearing loss were revised. 63 Fed. Reg. 25206 (May 11, 1999). Because the veteran's claim was filed before the regulatory change occurred, he would be entitled to application of the version most favorable to her. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the numerical standards by which auditory acuity and speech recognition are measured were not altered and there were no changes that would require evaluating this veteran's hearing loss in a manner different from that previously used. Thus, the Board finds that there is no prejudice to the veteran with regard to the above determination. See Bernard v Brown, 4 Vet. App. 384 (1993). The Board further notes argument by the veteran's representative that the veteran has been prejudiced by testing procedures using repeat speech audiometry to obtain better scores. However, even with application of the worst results, the veteran's left ear hearing loss is noncompensable under the Schedule. As the preponderance of the competent evidence in this case clearly is against the claim, the provisions of 38 U.S.C.A. § 5107(b) (West 1991) are not for application. ORDER A compensable evaluation for service-connected left ear hearing loss is denied. JANE E. SHARP Member, Board of Veterans' Appeals