Citation Nr: 0002154 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 99-10 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from October 1942 to October 1945. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 1999, the Board remanded this case to the RO for additional development. At that time, the veteran had requested a hearing before a Member of the Board in Denver, Colorado. In December 1999, the veteran canceled this request. Accordingly, the Board may proceed with the adjudication of the veteran's claim. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The May 1998 VA audiological evaluation reflects thresholds in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz of 105+, 105+, 105+ and 105+ decibels, with an average of 105+ decibels for the right ear and of 15, 30, 60, and 70 decibels with an average of 43.75 decibels for the left ear. Speech recognition ability was not testable in the right ear and was 88 percent in the left ear. 3. The July 1998 VA audiological evaluation reflects thresholds in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz of 105+, 105+, 105+, and 105+ decibels, with an average of 105+ decibels for the right ear, and of 20, 35, 65, and 80 decibels, with an average of 50 decibels for the left ear. Speech recognition ability was not testable in the right ear and was 100 percent in the left ear. 4. The March 1999 VA audiological evaluation reflects thresholds in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz of 105+, 105+, 105+, and 105+ decibels, with an average of 105+ decibels for the right ear, and of 15, 30, 65, and 80, with an average of 47.5 decibels for the left ear. Speech recognition ability was not testable in the right ear and was 100 percent in the left ear. 5. The average pure tone decibel losses and speech discrimination percentages convert to Roman Numerical designations set forth in 38 C.F.R. § 4.85, Table VI, as Level XI hearing in the right ear and Level I in the left ear. CONCLUSION OF LAW The schedule criteria for a rating in excess of 10 percent for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6101 (in effect prior to June 10, 1999) and 38 C.F.R. §§ 4.85, 4.86 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran filed his claim for an increased evaluation in his service-connected hearing loss in May 1998. Records were obtained, including an October 1995 statement from Dale L. Kinzler, M.D., who noted that the veteran had been complaining of severe hearing loss in the right ear since childhood. It was reported the veteran was having difficulty with hearing in his left ear, especially when he gets in crowded rooms. It was also noted that the entire head and neck examination was essentially normal. Audiometry was performed which revealed a dead ear on the right with a "SRT" of 16 decibels with 80 percent discrimination on the left. Dr. Kinzler noted that the veteran had a dead ear on the right with a "very mild sensorineural hearing loss on the left." On the authorized audiological evaluation in May 1998, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 15 30 60 70 Speech audiometry revealed speech recognition ability that was untestable in the right ear and 88 percent in the left ear. Outpatient treatment records indicate no vertigo and no tinnitus. A second audiological evaluation was performed in July 1998. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 20 35 65 80 Speech audiometry revealed speech recognition ability that was not testable in the right ear and of 100 percent in the left ear. In his substantive appeal of January 1999, it was noted that while the RO had addressed § 4.85(c), it had failed to consider this regulation. It was contended that if this regulation were applied, a 20 percent evaluation could be assigned. At a hearing held before a hearing officer at the RO in March 1999, it was noted that the veteran used hearing aids occasionally. It was noted that the veteran used hearing aids around the house and sometimes when he goes out. At this time, the veteran's representative requested that the VA Chief of Audiology clarify whether or not the veteran would qualify under 38 C.F.R. § 4.85(c). It was also requested that an additional evaluation be performed. Consequently, at the request of the veteran, an additional audiological evaluation was performed. On the authorized audiological evaluation in March 1999 , pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 15 30 65 80 Speech audiometry revealed speech recognition ability that was untestable in the right ear and of 100 percent in the left ear. The audiologist found profound hearing loss on the right and moderate hearing loss on the left. At the veteran's request, the VA audiologist stated that it was highly appropriate to use the alternate table (VIa) to determine disability due to the profound hearing loss in the right hear. It was noted that the veteran definitely suffered from language deficits in that monaural hearing does not provide the "stereo" effect that is useful to communicatively function more effectively in listening situations. It was noted that the speech discrimination scores were not inconsistent and reflected the auditory ability of a dead ear and a "relatively good hearing ear." It was stated that because hearing did not occur in a vacuum, the one ear with 100 percent discrimination cannot completely compensate for two functioning ears, especially when the good ear is also impaired and if there is competing noise in the listening environment. It was concluded that, in the opinion of the audiologist, Table VIa should be used as the rating tool in the case of the veteran due to the "inappropriateness of using both pure tone average and speech discrimination scores." It was noted that the VA Clinical Director agreed with this opinion. In a statement received from the veteran in June 1999, it was noted that his hearing handicap had isolated him in society. It was indicated that he had difficulties in hearing what was being said in a normal conversation with background noise. Following the hearing before the hearing officer at the RO in March 1999, the veteran indicated that he wished a hearing before the Board. Accordingly, in August 1999, the Board remanded this case to the RO to schedule the veteran for a hearing before a Member of the Board in Denver, Colorado. In December 1999, the veteran canceled this request for a hearing. The veteran's representative prepared additional written argument. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average industrial impairment. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In evaluating the service-connected disability, the Board considers the current evaluation reports in light of the whole recorded history to ensure that the current rating accurately reflects the elements of the disability present. 38 C.F.R. § 4.2. The Board also considers the validity of the veteran to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The VA has changed the regulations pertaining to the evaluation of hearing loss during the course of the veteran's appeal. These changes became effective June 10, 1999. 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, 313 (1991). It is unclear if the RO evaluated the veteran's claim under the new regulations. However, in this case, the Board believes that a remand to afford the RO an opportunity to review the veteran's claim is not necessary. The pertinent regulations do not contain any substantive changes that affect this particular case, but generally add certain provisions that were already the practice of the VA. 38 C.F.R. § 4.85 (1999). The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been significantly changed. The veteran has already been afforded the hearing tests required by the new regulations, and these were used by the RO in the evaluation of his claim. The Board will use both the old and new regulations to review the veteran's claim. Therefore, the Board is able to evaluate this claim under the new regulations without prejudice to the veteran, and will proceed with consideration of the appeal. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). 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. 38 C.F.R. § 4.85. 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 (1992). The veteran's right ear hearing loss is clearly total, representing a Level XI in the right ear. It is important to note that Level XI is the highest evaluation possible for the hearing loss in the right ear, indicating profound deafness. However, in all three VA audiological evaluations, the veteran's left ear hearing loss is found to be Level I. This would not provide a basis to increase the veteran's service- connected bilateral hearing disability. A veteran with Level XI hearing in one ear and Level I hearing in the other warrants a 10 percent evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6101 (1999). Even if Level II hearing in the left ear were found, this would not provide a basis to increase the veteran's disability compensation. The veteran has requested consideration of 38 C.F.R. § 4.85(c) in the evaluation of his claim. 38 C.F.R. § 4.85(c) (1999), Table VIa, the "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman Numerical designation (I through XI)) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated on the provisions of § 4.86. Under 38 C.F.R. § 4.86(a), when pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numerical designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Consequently, under 38 C.F.R. § 4.86(a), the left ear, which does not have pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) at 55 decibels or more, would not qualify for review under Table VIa. In this case, while left ear hearing loss is not 55 decibels or more at each of the four specified frequencies, the VA audiologist has determined that evaluation under VIa is appropriate. Nevertheless, the Board finds that evaluation under this table does not provide a basis to increase the service-connected disability evaluation. Under Table VIa, the May 1998 VA audiological evaluation would provide a basis to determine that the veteran has a pure tone threshold average of 43.75, warranting a determination that he has Level II hearing in the left ear. The results of the July 1998 audiological evaluation would provide a basis to determine that he has a pure tone threshold average of 50, warranting a determination that the veteran has Level III hearing in the left ear. However, in the March 1999 audiological evaluation, the pure tone threshold average was 47.5, indicating Level II hearing in the left ear. As noted above, a finding of Level II hearing in the left ear under Table VIa does not provide a basis to award the veteran an increased evaluation under Table VII. Based on the evaluation cited above, the Board must find that the preponderance of evidence does not support the conclusion that the veteran has Level III hearing in the left ear under Table VIa. While one of the two audiological evaluations has indicated a pure tone threshold average of 50, two of the three audiological evaluations have not. The average of the three tests would indicate a pure tone threshold average of 47, below that required to find Level III hearing in the left ear. Further, a determination that the veteran suffers from Level II hearing in the left ear is consistent with all other medical records, including, but not limited to, the medical record provided by Dr. Kinzler, who noted "very mild sensorineural hearing loss on the left," and the VA audiologist who has recently noted a dead right ear and a "relatively good hearing ear" on the left. This decision is also consistent with the results found in July 1998, in that the veteran barely meet the requirement of Level III hearing in the left ear at that time. The Board must again note that once the medical provider has established the values for pure tone thresholds and speech discrimination by test methods adequate for rating purposes, the determination of the schedular evaluation is entirely mechanical. Lendenmann, supra. The results found in Dr. Kinzler's report do not support a different result and, in fact, support the current determination. In deciding this claim, the Board has considered the Court's determination in Fenderson v. West, 12 Vet. App. 119 (1999) and whether he is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126. See also Francisco, 7 Vet. App. at 58 (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). Fenderson is not directly applicable in this case because the Board is not considering the "initial" assignment of a rating disability (the veteran was awarded service connection for this disability many years ago). Nevertheless, for reasons noted above, the Board finds no basis to award the veteran an increased evaluation for a separate period from May 1998, when he filed this claim. Simply stated, the Board does not find the results of the July 1998 audiological evaluation to be a basis to award an increased evaluation in light of two audiological evaluations and other evidence which does not support the determination that he has Level III in the left ear. In light of the above considerations, the preponderance of the credible evidence is against the claim for an increased evaluation for bilateral hearing loss. Consequently, the doctrine of reasonable doubt does not apply. The issue of entitlement to an extraschedular rating is not before the Board at this time. 38 U.S.C.A. § 5107(a) (West 1991) and Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Based on a review of the current evidence of record, the Board finds that the record has not raised the issue of extraschedular entitlement under 38 C.F.R. § 3.321(b)(1) (1999). While the veteran has indicated that his hearing loss impacts on his ability to function within society, there is no indication that the hearing loss influences employability in ways not contemplated by the rating schedule. The veteran has never cited to a position loss due to his service-connected disability. The Board also finds no evidence to indicate that the hearing loss has caused hospitalizations. As a result, extraschedular entitlement is not indicated or raised by the evidence of record. ORDER Entitlement to an increased evaluation for bilateral hearing loss is denied. John J. Crowley, Acting Member, Board of Veterans' Appeals