Citation Nr: 0003379 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-14 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from July 1943 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for bilateral hearing loss and assigned a 10 percent rating for that disability. The veteran appeals for a higher rating. In March 1999, the Board remanded this matter to the RO in order for the veteran to be afforded a VA audiological examination to determine the current extent of his service-connected bilateral hearing loss and for the veteran's claim to be readjudicated in light of the holding in Fenderson v. West, 12 Vet. App. 119 (1999). Such development having been completed, this case has been referred to the Board for resolution. The Board also notes that a preliminary review of the record discloses that in September 1999, the veteran submitted additional medical records from Edward Hines, Jr. Hospital regarding treatment received for coronary artery disease, hypertension, increased cholesterol and hypothyroidism. The RO did not issue a Statement of the Case, or a Supplemental Statement of the Case in conjunction with this evidence. This evidence is not relevant to the issue currently pending before the Board, and accordingly, this matter is referred to the RO for initial consideration and appropriate action. FINDINGS OF FACT 1. The record contains all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran has had Level I auditory acuity in the right ear and Level XI auditory acuity in the left ear since February 22, 1996. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss, since February 22, 1996, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87a, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that the disability evaluation currently assigned for his bilateral hearing loss does not accurately reflect the severity of his symptomatology. A claimant seeking benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that a mere allegation that a service-connected disability has become more severe is sufficient to establish a well- grounded claim for an increased rating. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. 38 U.S.C.A. § 5107(a). In this case, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The standards for rating impairment of auditory acuity are set forth at 38 C.F.R. § 4.85 (1999). Evaluations of hearing loss 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 1,000, 2,000, 3,000 and 4,000 cycles per second. In order to evaluate the degree of disability from bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85(b). Disability evaluations for hearing loss 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, 349 (1992). During the pendency of the veteran's appeal, on May 11, 1999, the criteria for rating defective hearing were revised. When a law or regulation changes during the pendency of an appeal, the Board must evaluate the veteran's disability under the version most favorable to the claimant, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board has reviewed the veteran's claim under both the "old" and "new" criteria, and based on this review, it finds that the new criteria are not more favorable to the veteran. The new criteria are more beneficial to more profoundly deaf veterans. See 64 Fed. Reg. 90, 25202-25210 (1999). The veteran was granted service connection for and assigned an initial 10 percent disability evaluation pursuant to DC 6101 by rating decision dated March 1998; the initial rating of 10 percent was effective February 22, 1996. At that time, the record showed that the veteran reported that he was exposed to artillery fire approximately two to three weeks prior to D-Day. Thereafter he experienced bilateral hearing loss and tinnitus and was treated at a clinic where oil and cotton was placed in his left ear. There is no record of this treatment. In March 1996, the veteran was afforded a VA audiological examination and pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 40 40 LEFT 80 70 70 60 45 The veteran had average pure tone decibel loss of 29 in the right ear and of 61 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 0 percent in the left ear. The veteran was diagnosed with mild sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. Tinnitus was not present at the time of the examination. The veteran was afforded a second VA audiological examination in August 1998 and pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 40 45 LEFT 85 70 55 55 55 The veteran had average pure tone decibel loss of 30 in the right ear and of 58 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 0 percent in the left ear. The veteran was diagnosed with moderate sensorineural hearing loss in the right ear and moderate to severe reverse slope sensorineural hearing loss in the left ear. In April 1999, the veteran was afforded two VA audiological examinations. The first examination was conducted on April 15, 1999. At that time, results obtained for rating purposes for the left ear were inadequate, so the veteran was rescheduled for a second audiological examination on April 29, 1999. The results of the April 29, 1999 testing showed that the veteran had pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 45 45 LEFT 85 75 70 70 65 The veteran had average pure tone decibel loss of 33 in the right ear and pure tone decibel loss of 70 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 0 percent in the left ear. The veteran was diagnosed with moderate sensorineural type hearing loss in the right ear and moderately severe to severe sensorineural hearing loss in the left ear. The examiner noted that the veteran's hearing loss could cause difficulty understanding conversational speech, especially in noisy situations and interfere with normal communication tasks, including listening with competing noise and listening on the telephone. Additionally, the examiner indicated that this type of hearing loss could interfere with localization of sounds and that the veteran could have trouble understanding sounds or spoken messages directed toward the left side. Even though the veteran's hearing loss could significantly limit his employment or educational opportunities, the examiner believed that the hearing loss could be significantly offset by the use of amplification (hearing aids), or accommodation (amplified telephones, preferential seating, visual alerting and control of ambient or competing noises). During a December 1999 Travel Board Hearing held before the undersigned in Chicago, Illinois, the veteran testified that his hearing has not improved and that he continues to experience difficulty listening to radio and television. He also testified that he uses a hearing aid which helps him to hear with his right ear, but he cannot hear with his left ear. The veteran indicated that he no longer has tinnitus in his left ear. According to the findings from the March 1996 August 1998 examinations, the veteran had Level I auditory acuity in his right ear and Level XI auditory acuity in his left ear. 38 C.F.R. § 4.85, Table VI. According to the findings from the April 29, 1999 examination, the veteran again had Level I auditory acuity in his right ear and Level XI auditory acuity in his left ear. Id. Based on these numeric designations, only a 10 percent disability evaluation is warranted under 38 C.F.R. § 4.85, Table VII Diagnostic Code 6100. In view of the above findings, a staged rating is not appropriate under Fenderson and, therefore, a rating in excess of 10 percent, from February 22, 1996, is not warranted. The Board acknowledges the veteran's and his representative's contentions that the veteran experiences difficulty hearing in certain circumstances. However, the Board finds that the veteran's hearing deficit has not been shown to be of such severity to warrant an evaluation in excess of 10 percent under applicable scheduler standards. In reaching its decision, the Board considered the complete history of the disability at issue as well as the current clinical manifestations and the effect the disability has on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This decision is based solely upon the provisions of the VA's Schedule for Rating Disabilities. The Board finds that the record does not establish that schedular criteria are inadequate to evaluate the veteran's disability. There is no showing that the disability under consideration has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or necessitated frequent periods of hospitalization so as to render the schedular standards inadequate and to warrant assignment of an extra-schedular evaluation. In the absence of this evidence, the Board finds that that remand for compliance with the procedures for assignment of an extra-schedular evaluation is not warranted. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability evaluation in excess of 10 percent for bilateral hearing loss is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals