Citation Nr: 0002837 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-11 092 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from June 1946 to May 1948. This case comes to the Board of Veterans' Appeals (Board) from a February 1997 RO decision which denied service connection for left ear hearing loss, and denied an increase in a 10 percent rating for service-connected chronic otitis media with right ear hearing loss (such 10 percent rating was based on otitis media, not on right ear hearing loss). (The veteran also appealed the RO's denial of service connection for tinnitus, but the RO later granted service connection for same.) In a May 1999 decision, the RO granted service connection for left ear hearing loss, combining it with the service connected chronic otitis media with right ear hearing loss, and a 10 percent rating was continued for otitis media with bilateral hearing loss (such 10 percent rating was based on a protected rating for otitis media; the bilateral hearing loss was considered to be noncompensable). In a September 1999 decision, the RO separately rated the veteran's chronic otitis media as 10 percent (the prior 10 percent protected rating was continued), and a separate noncompensable rating was assigned for bilateral hearing loss. It is noted that the veteran is appealing for a higher rating for bilateral hearing loss, as distinguished from his chronic otitis media. This is shown in the RO hearing in July 1997 and several subsequent arguments from the veteran's representative (see statements dated in December 1997, July 1999, November 1999, and January 2000). As such, the sole issue addressed by the Board in the present decision is a compensable rating for bilateral hearing loss. FINDING OF FACT The veteran's service-connected bilateral hearing loss is currently manifested by auditory acuity level I in the right ear and auditory acuity level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Code 6100 (1998 and 1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from June 1946 to May 1948. A review of his service medical records shows that in April 1948 the veteran complained of partial deafness in the right ear. At that time, his tympanic membrane appeared thickened and scarred, and it was noted that for the past 15 months he had trouble with his ear and had received periodic treatment for episodes of drainage. The veteran was treated for chronic otitis media with perforation on the right in April 1948. In May 1948, a physical examination was conducted for separation purposes, which revealed no decreased hearing acuity in either ear. In a July 1948 decision, the White River Junction, Vermont Regional Office granted service connection for chronic otitis media on the right with perforation and hearing of 15/15 in both ears; a noncompensable evaluation was assigned. In an April 1952 decision, the RO assigned a 10 percent evaluation for the veteran's service-connected chronic otitis media on the right with decreased hearing on the right compared with the left. The 10 percent rating was based on active otitis media (Diagnostic Code 6200), not on hearing loss. In decisions dated in September 1978, June 1980, and October 1988, the RO denied an increase in the 10 percent rating for chronic otitis media with hearing loss on the right. In the October 1988 decision, the RO found that the veteran had no otitis and that his hearing loss was noncompensable according to regulatory criteria. An April 1995 VA audiogram indicates a speech reception threshold of 45 decibels in the right ear and 20 decibels in the left ear, with speech discrimination of 80 percent in the right ear and 92 percent in the left ear. An October 1995 VA audiologic evaluation indicated the following pure tone thresholds, in decibels, at 1,000, 2,000, 3,000, and 4,000 Hertz: 30, 50, 60, and 55, for an average of 49, in the right ear; and 15, 35, 55, and 55, for an average of 40, in the left ear. The speech recognition scores were 92 percent in the right ear and 88 percent in the left ear. The audiologist indicated that the testing showed mixed hearing loss, ranging from mild at 250 Hertz to moderately severe at 8,000 Hertz, in the right ear and sensorineural hearing loss, sloping from normal limits at 250 Hertz to severe at 8,000 Hertz, in the left ear. In a November 1995 decision, the RO denied a claim for service connection for left ear hearing loss and an increase in the 10 percent rating for the veteran's service-connected otitis media of the right ear with hearing loss on the right. In September 1996, the veteran submitted claims for service connection for left ear hearing loss and a higher rating for right ear hearing loss. On an October 1996 VA outpatient record, an examiner noted the veteran's report that his wife said his hearing acuity had decreased. In a February 1997 decision, the RO denied service connection for left ear hearing loss and an increase in a 10 percent rating for otitis media and hearing loss in the right ear. In that same month, the veteran stated that he desired to appeal the decision with regard to service connection for left ear [hearing loss] and an increased rating for [right ear] hearing loss. In an April 1997 substantive appeal, the veteran's representative indicated that the veteran believed he should be service-connected for hearing loss in both ears and that a higher evaluation was warranted for the hearing loss. At a July 1997 RO hearing before a hearing officer, the veteran's representative stated that the veteran felt the hearing loss portion of his service-connected otitis media in the right ear had markedly increased in severity. The veteran testified that he first noticed diminished hearing in his left ear about three or four years previously; that hearing in his right ear had worsened in the last several years; that his hearing in the right ear was worse than in the left ear; and that he had trouble listening to the television and conversing with others. On a February 1998 VA examination report, the examiner reviewed the veteran's record, noting difficulties he has had with hearing on both sides. The examiner noted the veteran's October 1995 hearing evaluation which showed mixed hearing loss on the right and sensorineural loss on the left. The impression was chronic right otitis with right mixed hearing loss and left sensorineural hearing loss. A VA audiologic examination conducted in September 1998 indicates the following pure tone thresholds, in decibels, at 1,000, 2,000, 3,000, and 4,000 Hertz: 35, 65, 65, and 60, for an average of 56 in the right ear; and 30, 65, 70, and 60 for an average of 56 in the left ear. The speech recognition scores were 80 percent in the right ear and 88 percent in the left ear. The audiologist indicated that the testing showed mixed hearing loss, sloping from mild to moderately severe to severe, in the right ear; sensorineural hearing loss, sloping from mild to moderately severe to severe, in the left ear; and speech discrimination that was good in the right ear and excellent in the left ear. On a November 1998 VA hearing aid evaluation, the audiologic findings in regard to air conduction for the following pure tone thresholds, in decibels, at 1,000, 2,000, 3,000, and 4,000 Hertz were: 45, 45, 60, and 55, for an average of 51.25 in the right ear; and 15, 30, 45, and 55 for an average of 36.25 in the left ear. In a May 1999 decision, the RO granted service connection for left ear hearing loss, combining it with the service connected chronic otitis media with right ear hearing loss, and a 10 percent rating was continued for otitis media with bilateral hearing loss (such 10 percent rating was based on a protected rating for otitis media; the bilateral hearing loss was considered to be noncompensable). On an August 1999 VA examination, the veteran reported that his hearing had worsened over the last couple of years. He described an inability to hear some sounds that he could previously hear, such as his clocks striking the hour, unless he was in the same room. The veteran also reported that his wife seemed to be commenting more on what he was not hearing or understanding. The examiner noted the veteran's history of wearing hearing aids, beginning with the right ear in 1988 and then with the left ear in 1995, with new hearing aids issued again in November 1998. An audiologic examination indicated the following pure tone thresholds, in decibels, at 1,000, 2,000, 3,000, and 4,000 Hertz: 35, 50, 70, and 65, for an average of 55 in the right ear; and 20, 40, 55, and 60 for an average of 44 in the left ear. The speech recognition scores using the Maryland CNC Test were 92 percent in both ears. The audiologist indicated that the testing showed a mild to moderately severe, mixed hearing loss in the right ear and a mild to severe, sloping, sensorineural hearing loss in the left ear. The audiologist compared the results with the veteran's audiograms in November 1998 and April 1995, noting that the only significant difference was a shift in the pure tone air conduction threshold of 15 decibels at 4,000 Hertz in the right ear. A listening check of the veteran's hearing aids was unremarkable, and the examiner took an impression of both ears for new molds. In a September 1999 decision, the RO separately rated the veteran's chronic otitis media as 10 percent (the prior 10 percent protected rating was continued), and a separate noncompensable rating was assigned for bilateral hearing loss. II. Analysis Initially, it is noted that the veteran's claim for a compensable rating for his bilateral hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Since the RO's rating decisions, the regulations pertaining to rating hearing loss were revised effective June 10, 1999. See 64 Fed.Reg. 25202 (1999). However, given the audiometric findings in the veteran's case, his service-connected bilateral hearing loss is rated by the same method under both the old and new regulations. See 38 C.F.R. § 4.85 (1998 and 1999), § 4.86 (1999). Evaluations of bilateral defective hearing range from noncompensable to 100 percent and are 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 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, ranging from numeric level I for essentially normal acuity to numeric level XI for profound deafness. 38 C.F.R. § 4.85; see Lendenmann v. Principi, 3 Vet. App. 345 (1992). The most recent audiometric study of record was conducted by the VA in August 1999 and includes test results (the average decibel threshold for the four frequencies, plus speech discrimination scores) which indicate the veteran has level I auditory acuity in the right ear and level I in the left ear. See 38 C.F.R. § 4.85, Table VI. These numeric designations in combination correspond to a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII, Code 6100. Furthermore, the other VA audiometric tests conducted in October 1995 and September 1998 similarly show noncompensable hearing loss; and the April 1995 VA audiogram and November 1998 hearing aid evaluation, although lacking all necessary information for rating, do not suggest a compensable degree of hearing loss. The assignment of a disability rating for hearing impairment is derived from a mechanical application of the rating schedule to the specific numeric designations assigned after audiometry evaluations are rendered. See Lendenmann, supra. In the instant case, the application of the rating schedule to the test results clearly demonstrates that no more than a noncompensable schedular rating is warranted. The fact that the veteran may wear hearing aids does not affect his rating, as the rating schedule makes a proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1998), § 4.85(a) (1999). The veteran's representative argued in a January 2000 statement that the schedular evaluation was inadequate and requested consideration on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). The Board does not have the authority to assign an extraschedular rating in the first instance, and under the circumstances of the present case there is no basis for the Board to refer the case to designated VA officials for consideration of an extraschedular rating. Bagwell v. Brown, 9 Vet.App. 337 (1996). The veteran's hearing loss does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The degree to which the veteran's service connected bilateral hearing loss impairs him industrially has been adequately contemplated in the percentage evaluation assigned for that disability, and referral of the case for consideration of an extraschedular evaluation is not warranted. For the above-stated reasons, the preponderance of the evidence is against the claim for an increase in the noncompensable rating for bilateral hearing loss. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for bilateral hearing loss is denied. L. W. TOBIN Member, Board of Veterans' Appeals