Citation Nr: 0004753 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 95-06 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable evaluation for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from January 1971 to January 1974 and from September 1979 to September 1992. This appeal arose from an August 1993 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA), Regional Office (RO), which granted service connection for a bilateral hearing loss and assigning it a noncompensable evaluation. In April 1997, the Board of Veterans' Appeals (Board) remanded this issue for additional development. In November 1999, the veteran and his representative were informed through a supplemental statement of the case of the continued denial of his claim. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). 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 recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT On VA audiological examination in January 1998, the average pure tone decibel (dB) loss was 42.5 in the right ear and 22.5 in the left ear, with speech discrimination of 96 percent in the right ear and 100 percent in the left. CONCLUSION OF LAW The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.85, Code 6100 (1998 & 1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. The veteran was asked in the remand to provide information concerning treatment for his hearing loss since December 1992. However, he failed to respond to this request. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. According to VA's Schedule for Rating Disabilities, evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity. Hearing loss is 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 cycles per second. 38 C.F.R. § 4.85, Part 4, Codes 6100-6110 (1999). To evaluate the degree of disability from the service-connected bilateral defective hearing, the rating schedule provides 11 numeric designations from Level I for essentially normal acuity through XI for profound deafness. Because the veteran has perfected an appeal as to the assignment of the initial rating following the initial award of service connection, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present. See Fenderson v. West, 12 Vet. App. 119 (1999). A VA examination of the veteran was performed in December 1992. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 75 70 LEFT 10 15 14 30 45 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 in the left ear. The average pure tone dB loss was 47.5 in the right ear and 26.25 in the left. The veteran was re-examined by VA in January 1998. On the authorized audiological evaluation in <>, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 65 65 LEFT 10 10 30 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear. The average pure tone dB loss was 42.5 in the right ear and 22.5 in the left. Initially, it is noted that the laws and regulations pertaining to hearing loss disabilities were amended, effective June 10, 1999. However, according to Table VI of 38 C.F.R. § 4.85, the numeric designation of hearing impairment in both ears is a Level I under both the old and the new regulations. Table VII of 38 C.F.R. § 4.85 reveals that these levels of hearing impairment warrant the assignment of a 0 percent disability evaluation under both the old and the new regulations. The Board is constrained by a mechanical application of the facts in this case to the applicable laws and regulations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). It is therefore concluded that the preponderance of the evidence is against the veteran's claim for a compensable evaluation for his bilateral hearing loss disability. ORDER A compensable evaluation for the bilateral hearing loss disability is denied. L. M. BARNARD Acting Member, Board of Veterans' Appeals