Citation Nr: 0007743 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 99-04 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to December 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was the subject of a December 1999 Board hearing before the undersigned Board member. As discussed further in the REMAND portion of this action, the veteran has filed a timely notice of disagreement with an RO rating decision assigning a noncompensable initial rating for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has level I hearing in the left ear and level I hearing in the right ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background During a July 1997 VA examination at Eglin Air Force Base, the veteran's hearing in the right hear was diagnosed as within normal limits with excellent speech discrimination. The left ear diagnosis was sensorineural hearing loss; objective examination revealed mild to moderate high frequency sensorineural hearing loss. The Board is not medically qualified to interpret the hearing threshold results and speech discrimination results as presented in the audiological report. In August 1998, the veteran filed the present claim for a compensable rating for bilateral hearing loss. During a September 1998 VA examination, pure tone thresholds, in decibels, were measured as follows: HERTZ 1000 2000 3000 4000 Ave. RIGHT 15 20 20 30 21 LEFT 30 45 50 40 41 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. During audiometric evaluation by Federal Hearing Services at Eglin Air Force Base in December 1999, pure tone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 -- 25 LEFT 15 30 40 -- 50 There is no record of speech recognition measurements during this audiological evaluation. During the veteran's December 1999 Board hearing, the veteran testified that his hearing had become progressively worse since service. He said that his hearing had continued to worsen since his September 1998 VA audiological examination. He noted that his left ear was significantly worse than his right ear. He expressed the belief that his hearing loss in his left ear as measured at his most recent VA examination was just one decibel short of the criteria for a compensable rating. He requested another VA audiological examination. He described problems hearing certain spoken sounds, causing him to have trouble understanding speech. He testified that he could not say that the reason he was unemployed was his hearing loss. He described being unable to tell which phone was ringing when he was working. He submitted lay statements from his wife and his daughter, and the results of an audiological screening examination from Federal Hearing Services and Eglin Air Force Base. In the lay statement from the veteran's wife received at the December 1999 Board hearing, she described problems the veteran had hearing normal conversation and hearing sounds in the shower. She said she had to repeat things loudly and distinctly. She asserted the veteran would listen to the television at a very high volume, unaware that the volume was so high. In the lay statement from the veteran's daughter received at the December 1999 Board hearing, she described the veteran's problems understanding and interpreting normal speech. Analysis The Board finds the veteran's claim for an increased rating to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that it is plausible. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. In addition, it is the judgment of the Board that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The Board notes that the criteria for rating diseases of the ear were amended effective June 10, 1999. 64 Fed. Reg. 25202-25210 (1999). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version more favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, under the facts of this case, the amendment made no change to the method of determining the percentage evaluation for hearing impairment. Tables VI, VIa and VII remain the same. The amendments include reorganizing sections 4.85 and 4.86 for the sake of clarity. The amended regulations provide for two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under section 4.85, because the speech discrimination test may not reflect the severity of communicative functioning these veterans experience. 64 Fed. Reg. 25202, 25203 (codified at 38 C.F.R. § 4.86 (1999)). However, the evidence demonstrates that the veteran's hearing loss is not one of these exceptional patterns of hearing impairment. Under the former and amended rating schedules, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for bilateral service- connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87 and Codes 6100-6110 (1998); 64 Fed. Reg. 25202, 25206-25209 (codified at 38 C.F.R. §§ 4.85, 4.86 (1999)); tables VI, VIa and VII. 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. 345 (1992). The September 1998 audiometry findings reflect a level I hearing impairment (100 percent speech discrimination and average puretone threshold of 21declibels) in the right ear and a level I hearing impairment (100 percent speech discrimination and average puretone threshold of 41decibels) in the left ear. See 38 C.F.R. § 4.85, Tables VI and VII (1999). The mechanical application of the rating schedule to these findings warrants a noncompensable evaluation pursuant to Diagnostic Code 6100. The Board acknowledges the veteran's contention that his hearing has become worse since his September 1998 VA audiological examination. The Board further acknowledges the veteran's contention that he is only one decibel of hearing acuity in the left ear from a compensable evaluation. The Board notes that the puretone hearing thresholds at the September 1999 VA examination and those of the December 1999 Federal Hearing Services testing are quite similar, with the exception of a 10 decibel worsening at 4,000 Hertz in the left ear. Still, even if the Board were to concede that the veteran's left ear hearing loss was characterized by an average four-frequency pure tone threshold between 42 and 57 decibels (as opposed to the 41 decibel average found during the VA examination), the veteran would still be rated as level I in the left ear, since his speech discrimination in that ear is not below 92 percent. See 38 C.F.R. § 4.85, Table VI. Thus, the veteran's hearing loss would still be measured as level I in both ears, and would be rated as noncompensably disabling. The veteran is advised that the evidence does not reflect hearing loss approximating compensable hearing loss, which would require, at a minimum, level I hearing acuity in one ear and level X in the other ear, or level II hearing acuity in one ear and level V in the other ear; or level III hearing acuity in one ear and level IV in the other ear. See Table VII. Because medical evidence as recent as December 1999 does not reflect hearing loss which approaches the compensable level, the Board finds that further VA audiological examination for purposes of the current appeal is not warranted, notwithstanding the veteran's assertions that his hearing loss continues to worsen. ORDER The claim for a compensable rating for bilateral hearing loss is denied. REMAND During his December 9, 1999, Board hearing, the veteran expressed disagreement with a December 9, 1998, rating determination granting service connection for tinnitus but assigning only a noncompensable evaluation for this disability. Since the hearing testimony has been reduced to a written transcript, the Board accepts the veteran's statement as a notice of disagreement to the noncompensable rating. The record shows that the December 9, 1998, RO rating decision was mailed to the veteran on January 11, 1999. A notice of disagreement filed within one year from the date that an agency mails notice of a rating determination is timely. 38 C.F.R. § 20.302(a) (1999). Accordingly, the Board finds that the veteran has timely filed a notice of disagreement on the issue of a compensable initial rating for tinnitus. No statement of the case has been issued on this matter. In light of the present procedural posture of this issue, the Board is obligated to remand the issue for proper development, to include issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is remanded to the RO for the following: The RO should take appropriate action, including issuance of a statement of the case, on the appeal initiated by the veteran from the rating decision which assigned a noncompensable initial rating for tinnitus. The veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the veteran wishes to complete an appeal from that determination. The purpose of this REMAND is to ensure that the veteran is afforded due process of law. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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