Citation Nr: 0006702 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-14 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Dissatisfaction with the initial non-compensable rating assigned following a grant of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from June 1967 to March 1970, with subsequent periods of service in the New Jersey National Guard and the Army Reserve. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted service connection for bilateral hearing loss. The veteran timely appealed that rating. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The veteran has level I hearing bilaterally. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.27, 4.85, Diagnostic Code 6100 (1998), Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to a compensable rating for his service-connected bilateral hearing loss. Historically, the veteran was granted service connection for bilateral hearing loss with a non-compensable rating assigned to that disability in April 1997. At that time, findings from a December 1996 VA audiological examination indicated pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 45 50 LEFT 15 20 35 35 35 Four frequency average in the right ear was 42 db, and four frequency average in the left ear was 32 db. Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The diagnosis was mild to moderate sensorineural hearing loss between 250 Hz and 8000 Hz in the right ear. In the left ear, hearing was within normal limits between 250 Hz and 1000 Hz, and at 8000 Hz; with mild sensorineural hearing loss between 2000 Hz. And 4000 Hz. Discrimination scores were excellent bilaterally. In January 1999 the veteran was afforded another VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 40 45 LEFT 20 20 30 30 30 Four frequency average in the right ear was 34 db, and four frequency average in the left ear was 28. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Diagnosis was hearing within normal limits in the right ear through 1000 Hz; with mild sensorineural hearing loss in the right ear between 2000 Hz and 6000 Hz, resolving to normal at 8000 Hz. In the left ear, hearing was within normal limits through 1000 Hz, with mild sensorineural hearing loss between 2000 Hz and 4000 Hz, resolving to normal at 8000 Hz. Disability evaluations for service-connected conditions are determined by the application of a schedule of ratings that is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1999). In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). During the course of the veteran's appeal, the rating criteria for evaluating hearing loss were revised. The new criteria have been in effect since June 10, 1999. 64 Fed. Reg. 25,202-210 (1999). According to the United States Court of Appeals for Veterans Claims (Court) when 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 most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Consequently, consideration of the veteran's case requires that the Board look at both sets of rating criteria. Id. Ordinarily a claim requiring consideration under old and new criteria, would be referred to the RO for de novo review, if the RO did not consider both. However, the Board notes that the revisions resulted in slight modifications and rearrangement of the criteria rather than significant substantive changes in the criteria that might affect the outcome in this case. The Board finds that by our consideration of the claim on its merits (without referral to the RO for initial de novo review) the veteran has not been prejudiced with respect to being afforded the full benefits of procedural due process. In deciding whether to assign a higher evaluation, the RO actually considered and weighed all evidence of record. Since no procedural deficits are apparent, and in light of the record as it currently stands, referral of the case to the RO for initial de novo review would serve no useful purpose except unnecessary delay. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under the old criteria, 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 average hearing threshold levels as measured by pure- tone audiometry tests. To evaluate the degree of disability from bilateral service- connected defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level 1 for essentially normal acuity through level 11 for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110 (1998). Applying the old diagnostic criteria to the findings on audiological examinations in December 1996 and January 1999, the Board observes that average pure tone loss of the worst results of the two examinations is 42 decibels in the right ear, along with speech discrimination findings of 94 percent; and 32 decibels in the left ear, along with 94 percent speech discrimination findings. Such findings correspond to auditory Level I designation (better ear) and auditory Level I designation (poorer ear), respectively. The Board notes that a zero percent rating is warranted for bilateral defective hearing where pure tone threshold in one ear warrants an auditory acuity Level I designation, and the poorer ear warrants an auditory acuity level below Level V designation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (1998). The current findings do not approximate an evaluation other than noncompensable. Accordingly, the preponderance of the evidence is against an increased evaluation for bilateral hearing loss under the old criteria. Under the new criteria, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. To determine the level of hearing impairment, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (1999). The "puretone threshold average," as used in Tables V and VIa, is measured by the sum of the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz, divided by four. 38 C.F.R. § 4.85(d) (1999). Table VI is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the puretone average threshold. 38 C.F.R. § 4.85(b) (1999). Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. This table will be used only when the examiner certifies that use of the speech discrimination test is not appropriate. 38 C.F.R. § 4.85(c) (1999). The provisions of 38 C.F.R. § 4.85 (1999) require that certain controlled speech discrimination tests and puretone audiometry tests be conducted in order to rate defective hearing. This was done by VA in December 1996 and January 1999. The examiners reported the speech recognition score and puretone thresholds that provided the best estimate of the veteran's organic hearing. The findings under the new criteria, which became effective in June 1999, are the same as under the old criteria. Under the new criteria, 38 C.F.R. § 4.85 (1999) provides for a noncompensable evaluation under Diagnostic Code 6100 when the veteran has bilateral Level I hearing loss. The findings using the results of either the audiogram conducted in December 1996 or the audiogram conducted in January 1999 indicate that his hearing loss is properly evaluated as zero percent disabling. Based on a 94-100 percent speech recognition score and a 34-42 decibel average puretone threshold, Table VI indicates a designation of Level "I" for the right ear. Based on a 94-100 percent speech recognition score and a 28-32 decibel average puretone threshold, Table VI indicates a designation of Level "I" for the left ear. When applied to Table VII, the numeric designations of "I" for both ears translated to a zero percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). Therefore, the veteran's service-connected hearing loss has been noncompensable since the effective date of service connection under the new criteria. 38 C.F.R. § 4.85, Tables VI and VII (1999). The Court has held that 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. Lendenmann v. Principi, 3 Vet. App. (1992). Here, such mechanical application of the rating schedule results in a noncompensable rating under Code 6100 under either the old or the recently effective new criteria. The Board has taken into consideration the discrepancies among the veteran's VA audiological examinations in December 1996 and January 1999. As noted, the latest examination actually shows a slight improvement in hearing acuity bilaterally. Nevertheless, even using the VA examination showing the worst results (December 1996), a noncompensable rating would still be warranted. Accordingly, the Board finds that based on the evidence of record, the veteran is not entitled to a compensable rating for bilateral hearing loss under either the old or new criteria. The Board notes that this case involves an appeal as to the initial rating of the appellant's bilateral hearing loss, rather than an increased rating claim where entitlement to compensation had previously been established. Fenderson. In initial rating cases, VA has been directed by the Court to consider whether separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 9. In the case at hand, as an increased rating is not warranted, the Board finds that a staged rating is not appropriate. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER A compensable rating for service-connected bilateral hearing loss is denied. N. R. ROBIN Member, Board of Veterans' Appeals