Citation Nr: 0001219 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 95-13 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an evaluation in excess of 60 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had verified active duty from August 1950 to August 1953, and from April 1956 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating action by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The veteran's service-connected bilateral hearing loss is currently manifested by the averages of pure tone hearing thresholds at 1000, 2000, 3000 and 4000 Hertz, of 91 in the right ear and 94 in the left ear, and by speech discrimination scores of 64 in the right ear and 76 in the left ear; these results translate most favorably to the veteran to numeric designations of Level IX on the right and Level IX on the left using hearing loss Table VIA. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.86 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's original claim for a higher rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible. All of the facts have been properly developed and no further assistance is necessary to comply with the duty to assist required by law. Id. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The primary focus in rating disabilities is on functional impairment. 38 C.F.R. § 4.10 (1999). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), has held that, 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. At the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that 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. Lendenmann v. Prinicipi, 3 Vet. App. 345, 349 (1992). The Board notes that, by regulatory amendment effective June 10, 1999, changes were made to the Schedule for Rating Disabilities for diseases of the ear and other sense organs, as set forth in 38 C.F.R. §§ 4.86 and 4.87. See 64 Fed.Reg. 25202 (1999). 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 appellant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under the old criteria, the basis for evaluating defective hearing was the impairment of auditory acuity within the range of 1000 to 4000 Hertz, according to findings on audiology clinic examinations. For VA purposes, impairment of auditory acuity contemplates the organic hearing loss for speech. 38 C.F.R. § 4.87 (1998). The examinations permit a standardization of methods and uniform conditions, so that the performance of each person can be compared with that of a person having normal hearing acuity. The audiometric findings will provide an accurate basis upon which to evaluate the veteran's entitlement to disability compensation, as provided by 38 C.F.R. § 4.85. 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 of 1000, 2000, 3000, and 4000 Hertz (cycles per second). Audiometric test results can be translated into a numeric designation ranging from Level I to Level XI to evaluate the degree of disability from bilateral service- connected defective hearing. The Schedule for Rating Disabilities (hereafter Rating Schedule) establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. In addition, the evaluations derived from the schedule contemplate the proper allowance for improvement of hearing acuity by hearing aids. 38 C.F.R. Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 to 6110. Under the new regulations in effect from June 10, 1999, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85 (1999). Also for application is the newly enacted 38 C.F.R. § 4.86, for exceptional patterns of hearing impairment. Thereunder, (a) when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately; and (b) when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table Via, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Tables VI-VII are unchanged. 38 C.F.R. § 4.86 (1999). In October 1953, service connection was granted for bilateral deafness and a 20 percent evaluation was assigned. The determination was based on the showing of bilateral deafness at the time of the veteran's separation from his first period of service, and on findings from an October 1953 VA audiology examination. In an October 1970 rating decision, service connection for bilateral defective hearing was continued at a 20 percent evaluation, following the veteran's separation from his second tour of duty. December 1968 private audiogram records and a September 1970 VA examination were considered in the decision. In February 1986, the veteran underwent audiology testing at VA. The right ear showed mild sensorineural loss through 500 Hertz, with moderate sloping to profound sensorineural loss above 500 Hertz. Left ear hearing loss was shown as mild mixed loss through 1500 Hertz, and severe primarily sensorineural loss above 1500 Hertz. A March 1986 VA treatment record noted that the veteran wore an acoustic aid, and that he received new hearing aids and counseling on their usage. In June 1986, the veteran underwent VA audiology testing. On a July 1986 summary report, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 60 75 LEFT 45 45 90 In a September 1986 rating decision, the rating evaluation was increased from 20 to 40 percent disabling, based on the findings above which translated into an increased evaluation under the literal designation in the Rating Schedule. In January 1994, the veteran was seen for problems with his left ear hearing aid. He was seen in March 1994 because he needed new hearing aids. In March 1994, the veteran underwent VA audiological examination. Air conduction and bone conduction tests were performed, and no summary sheet was provided. However the puretone average for four frequencies was reported to be 70 in the right ear and 68 in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 60 percent in the left ear. In April 1994, the veteran was seen for observation of the fitting of the new hearing aids. The observation was that there was a good fit and good sound. In May 1994, the veteran initiated this claim for an increased rating for bilateral hearing loss. In July 1994, the veteran underwent VA audiology testing. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 70 80 105+ 105+ LEFT X 60 80 95 105+ The average for the right ear was 90+ and the average for the left ear was 91+. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 72 in the left ear. On the evaluation form, the examiner noted that the veteran reported that his hearing had worsened. In the summary section, the examiner wrote that the veteran initially displayed non organic behaviors, and that the veteran had a history of non organic overlay to his hearing loss. After repeated reinstruction, the veteran's thresholds and speech discrimination improved. The examiner stated that it was felt that there was still a slight non organic overlay to the veteran's hearing loss. However, it could not be resolved during that day's evaluation. The examiner stated that the results listed above were believed to be the best estimate of the veteran's organic hearing obtainable at that time. In a December 1994 rating decision, the RO denied the veteran an increased evaluation, and the tables in the Ratings Schedule, translated into a forty percent evaluation. The veteran disagreed with rating action and perfected this appeal. In March 1997, the veteran underwent VA audiology examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 80 85 95 105+ LEFT X 70 95 105 105+ The average for puretone thresholds was 91+ in the right ear, and 94+ in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 76 percent in the left ear. In the remarks section, the examiner wrote that there was severe sensorineural hearing loss, bilaterally; and that the veteran displayed non organic behaviors. It was noted that the results reported above were believed to be the best estimate of the veteran's organic hearing that could be obtained at that time. In an August 1997 rating decision, evaluation of bilateral hearing loss currently evaluated as 40 percent disabling was continued. The RO noted that the above findings did not measure up to the criteria for 40 percent, but that the 40 percent evaluation would be continued as sustained improvement had not been shown. In June 1999, the RO issued a Supplemental Statement of the Case, wherein it discussed the changes in regulatory criteria concerning hearing loss and ear diseases. The RO provided the new regulations and, after application therein, determined that the veteran was entitled to an increased evaluation, pursuant to 38 C.F.R. § 4.86, for exceptional patterns of hearing impairment. The RO granted a 60 percent evaluation for the veteran's bilateral hearing disability, and assigned an effective date of June 10, 1999. The Board has reviewed the record in its entirety and determines that the veteran is not entitled to an evaluation in excess of 60 percent for his bilateral hearing loss. In this case, the competent medical evidence of record reveals literal designations of Level VIII hearing acuity in the right ear and Level V hearing acuity in the left ear. See 38 C.F.R. § 4.87, Table VI (effective prior to June 10, 1999); which translates into a 30 percent rating. Therefore, the Board finds entitlement to a compensable rating under the old rating criteria is not warranted. Under the current version of the Ratings Schedule, the Board finds that the results of the veteran's most recent audiometric testing do not demonstrate that the veteran's bilateral hearing loss warrants a disability evaluation over the already assigned 60 percent rating under the Ratings Schedule. As with the old rating criteria, the most recent valid audiometric test translates in literal designations of Level VIII hearing acuity in the right ear and Level V hearing acuity in the left ear. See 38 C.F.R. § 4.87, Table VII. The application of the Ratings Schedule as described in Lendenmann, supra, establishes no more than a 30 percent rating thereunder for bilateral hearing loss. However, under 38 C.F.R. § 4.86, the veteran is entitled to a higher evaluation because the audiometric test results from the March 1997 VA examination, translate in literal destinations of Level IX hearing acuity in the right ear and Level IX hearing acuity in the left ear. This scenario translates into a 60 percent evaluation pursuant to Table VIA, and VII. Therefore this more favorable regulation is applicable to the veteran's claim. The RO has granted the veteran his entitlement for a 60 percent evaluation. Even under 38 C.F.R. § 4.86, the medical evidence in the file does not reflect a degree hearing loss which "more nearly approximates" the criteria for a 70 percent rating or above, under the old or amended regulations. See 38 C.F.R. § 4.7 (1999). In conclusion, application of either the old or the amended hearing loss regulations shows that medical evidence as to the severity of the veteran's service-connected bilateral hearing loss is not sufficient to support a finding of functional impairment which is greater than the currently assigned 60 percent disability rating. A review of the evidence of record does not demonstrate that the veteran's bilateral hearing loss warrants a rating in excess of 60 percent under the old or new hearing loss criteria. As noted above, the method of evaluating hearing loss has not been changed, but the veteran's disability rating was increased during the interim of this appeal by the RO under the criteria found in the new regulations at 38 C.F.R. § 4.86. Taking into consideration all of the available information and the criteria set forth in the Rating Schedule, it is the finding of the Board that the preponderance of the evidence is against the veteran's claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). ORDER An evaluation in excess of 60 percent for bilateral hearing loss is denied. Deborah W. Singleton Member, Board of Veterans' Appeals