Citation Nr: 0001738 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-14 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active service from April 1967 to April 1970. For service in the Republic of Vietnam, he was awarded the Bronze Star Medal with "V" device and the Purple Heart Medal with one Oak Leaf Cluster, among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO) which denied a compensable evaluation for the veteran's service-connected bilateral hearing loss. The case was previously before the Board in October 1998, at which time it was remanded to provide the veteran a requested personal hearing before a Board member at the St. Louis VARO. On remand, the veteran declined a travel board hearing and instead requested and obtained a personal hearing before an RO hearing officer in St. Louis in July 1999. The case has been returned to the Board and is now ready for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appeal has been requested or obtained. 2. The veteran has Level I hearing for each ear. 3. Bilateral hearing loss is not sufficient to be compensable in accordance with the law and regulations governing schedular evaluation of such disability. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for an increased evaluation 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 developed and no further assistance is necessary to comply with the duty to assist. Law and Regulation: The 1945 Schedule for Rating Disabilities (Schedule) will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions of the rating schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as practicably can be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating, otherwise the lower rating will be assigned. 38 C.F.R. §4.7. Any reasonable doubt regarding degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body, to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In reviewing the disability evaluations in this case, the Board is bound by the provisions of the rating schedule which govern the assignment of disability ratings for impairment of auditory acuity. 38 C.F.R. § 4.85. Evaluations of hearing loss range from noncompensable to 100 percent based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level measured by pure tone audiometric testing for the frequencies at 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the revised rating schedule establishes 11 auditory acuity levels designed from Level I for essentially normal acuity, to Level XI for profound deafness. 38 C.F.R. Section 4.85, Diagnostic Codes 6100-6110 (1999). During the pendency of this appeal, some changes were made to the Schedule with respect to evaluating degrees of disability for hearing loss. These changes were effective in May 1999. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), where a law or regulation changes after the claim has been filed but before administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. However, in this case, the changes made to the rating schedule regarding hearing impairment, have no effect in deciding the veteran's present appeal for an increased evaluation. None of the changes made effective in May 1999 in any way affect the outcome of the veteran's appeal, so there is no necessity of evaluating whether the older or newer criteria are more beneficial in deciding the present appeal. 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. Although rating specialists are directed to review the recorded history of disability to make a more accurate evaluation, regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, (1994). Facts: The veteran sustained combat wounds during service resulting in multiple residual disability including a perforated left eardrum and bilateral hearing loss which were both service connected in the Chicago RO's original rating action of August 1970. Both were assigned noncompensable evaluations, the veteran was notified, and he did not appeal. Some 25 years later, the veteran filed a claim for increased evaluations for various disabilities including hearing loss. In November 1995, he was provided a VA audiometric examination. The pure tone decibel thresholds for the relevant frequencies at 1,000, 2,000, 3,000, and 4,000 Hertz were 5, 10, 55, and 90 for the right ear, and 10, 20, 50, and 90 for the left ear. Speech recognition scores for both the right and left ears was 94 percent. The average pure tone decibel threshold for the four relevant frequencies of the right ear was 40 decibels and of the left ear was 43 decibels. The examination summary stated that the veteran had a moderate to severe/profound sensorineural hearing loss above 2,000 Hertz bilaterally with "excellent" speech recognition. These results were considered to be "consistent or slightly improved" relative to previous evaluations. In February 1998, the veteran was provided another VA audiometric examination. The pure tone decibel thresholds for the relevant frequencies of the right ear were 15, 15, 55 and 95 and for the left ear were 15, 20, 60, and 90. Speech recognition was 96 percent for the right ear and 94 percent for the left ear. The four relevant-frequency average decibel threshold for the right ear was 45 and for the left ear was 46. Constant bilateral tinnitus since combat service injuries was also reported. The summary of this examination reported a moderately severe to profound ski slope high frequency sensorineural hearing loss above 2,000 Hertz bilaterally. Speech recognition was "excellent." Acoustic immittance results were consistent with the audiogram and the results were considered reliable. In March 1998, the veteran was also provided with an ear, nose and throat examination. The report of this examination indicated that both eardrums were normal although each had some mild scars and there were many in both eardrums. In July 1999, the veteran testified at a personal hearing at the RO in St. Louis, Missouri. At that time, he argued that he perceived a noticeable loss of hearing acuity over the past several years. He also noted that since his most recent February 1998 VA audiometric examination, he had not had any treatment or evaluation of his ears or hearing. He felt it was "possible" that his hearing acuity had decreased since his most recent examination. He also pointed out that he did not wear hearing aids. He had been provided bilateral hearing aids by VA and these hearing aids had definitely assisted his level of hearing acuity for a time but then they became defective when he sent them back and when they were returned he said they just would not work correctly. He said without hearing aids he had a difficult time hearing conversational speech in a crowd or if there was background noise. He said he had had no problems with the ears themselves or drainage in a long time. There had been no recurrence of ear infection in either ear over a period of years. He said if he was provided hearing aids that worked, he would not mind wearing them. Analysis: A clear preponderance of the evidence on file is against the award of a compensable evaluation for bilateral high frequency hearing loss. Despite the veteran's testimony to perceiving a decrease in hearing acuity over the past several years, VA audiometric examinations conducted in November 1995 and, more recently, in February 1998, confirm that he has hearing Level I in each ear with very good to excellent speech discrimination in each ear. While the more recent of the two audiometric examinations from 1998 shows an increase in hearing loss from the examination performed in 1995, these two audiometric examinations are fairly consistent. In each examination, the veteran is shown to have a moderately severe to profound high frequency sensorineural hearing loss above 2,000 Hertz bilaterally. However, in each examination speech recognition scores were characterized as "excellent." While the veteran may disagree with this characterization, he is not himself competent to offer a medical opinion contrary to the (multiple) VA audiometric test results on file. The schedular evaluation of hearing loss disability provides that the average pure tone decibel thresholds at the levels of 1,000, 2,000, 3,000 and 4,000 Hertz are the levels which will be measured for hearing loss disability because these decibel threshold levels are those primarily used for ordinary speech. The most recent pure tone decibel threshold for the right ear is 45 and for the left ear is 46, and speech recognition scores were 96 percent for the right ear and 94 percent for the left ear. In accordance with the Schedule for Rating Disabilities, the veteran has Level I hearing for each ear and such findings support no higher than a noncompensable evaluation. To warrant a compensable evaluation, the veteran would have to produce competent clinical audiometric test results showing higher relevant frequency pure tone decibel thresholds and/or lower speech recognition scores. Without such competent evidence, an increased evaluation for hearing loss disability cannot be made. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107(a). The Board finds it noteworthy that the veteran did report good success in improved hearing by wearing functional hearing aids provided by VA. The veteran is certainly entitled to be provided functional hearing aids based upon his service-connected disability and he should avail himself of this service. The St. Louis VARO in its most recent July 1999 supplemental statement of the case clearly notified the veteran that he should attempt to seek out VA medical center outpatient care to include retesting and fitting of appropriate hearing aids. ORDER Entitlement to an increased (compensable) evaluation for bilateral hearing loss is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals