Citation Nr: 0000122 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 97-21 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Propriety of the initial, noncompensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from June 1953 to June 1956 and again from September 1958 to September 1975. This appeal arises from a May 1996 rating decision of the Nashville, Tennessee, Regional Office (RO) which denied service connection for right ear hearing loss. The RO also denied entitlement to a compensable evaluation for the veteran's service-connected left ear hearing loss. Both determinations were appealed by the veteran. A hearing was held before the Board of Veterans' Appeals (Board) in April 1998 while sitting at the RO. This hearing was conducted by Mr. Lawrence Sullivan, a member of the Board, who was designated to do so by the Chairman of the Board pursuant to 38 U.S.C.A. § 7102(a) (West 1991). Mr. Sullivan will make the final determination in this case. Following this hearing, the case was remanded to the RO for development of the medical evidence. By rating decision of March 1999, the RO granted service connection for right ear hearing loss, but found the veteran's service-connected bilateral hearing loss noncompensable. The case has now returned for final appellate consideration. FINDINGS OF FACT 1. All evidence required for an equitable decision on the issue on appeal has been obtained. 2. The veteran's bilateral hearing loss is manifested in recent years, at its worst, by an average pure tone threshold of 50 decibels in the right ear, speech discrimination ability of 86 percent in the right ear, an average pure tone threshold of 56 decibels in the left ear and speech discrimination ability of 76 percent in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met at any point in the appeal period. 38 U.S.C.A. § 1155, 1160(a), 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 3.83, 4.1, 4.2, 4.7, 4.85, Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background. By rating decision of November 1975, the RO granted service connection for left ear high frequency hearing loss. This disorder was evaluated under the U. S. Department of Veterans Affairs (VA) Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code (Code) 6296 as noncompensable effective from October 1975. In October 1995, the RO received the veteran's claim for service connection for bilateral hearing loss. The veteran was afforded a VA audio examination in December 1995. He claimed to have experienced gradually worsening bilateral hearing loss starting during his military service. It was noted by the veteran that he required the use of a hearing aid in his left ear. Audiometric testing revealed the following results: HERTZ 250 500 1000 1500 2000 3000 4000 6000 8000 RIGHT - 10 20 - 55 55 60 - - LEFT - 15 30 - 55 65 65 - - The average pure tone threshold for the frequencies for the right ear was reported to be 47.5 decibels with speech recognition of 94 percent, and 52.5 decibels for the left ear with speech recognition of 88 percent. The diagnosis was bilateral mid and high frequency sensorineural hearing loss of moderate to moderately severe in degree at affected frequencies. The veteran's word recognition was found to be "good" in both ears. By rating decision of May 1996, the RO determined that the veteran's right ear hearing loss was not service-connected. If further found that the level of his service-connected left ear hearing loss was not compensable. The veteran filed a notice of disagreement with this decision in November 1996. It was argued by the veteran that his hearing loss was incurred during his military service due to acoustic trauma from heavy artillery. He claimed that his bilateral hearing loss was entitled to a compensable evaluation because he had "substantial decibel loss" and very poor speech discrimination in both ears. The veteran asserted that he had been treated for his bilateral hearing loss at the local VA Medical Center (VAMC) starting in February 1996. VA treatment records dated from January to February 1996 were associated with the claims file in December 1996. These records noted the fitting and adjustment of the veteran's hearing aids. Another VA audio examination was given to the veteran in January 1997. It was noted that the veteran had successfully worn hearing aids since February 1996. Audiometric testing revealed the following results: HERTZ 250 500 1000 1500 2000 3000 4000 6000 8000 RIGHT - 20 25 - 55 55 60 - - LEFT - 25 35 - 60 60 70 - - The average pure tone threshold for the right ear was reported to be 49 decibels with speech recognition of 86 percent, and 56 decibels for the left ear with speech recognition of 76 percent. The diagnosis was mild sloping to moderately severe sensorineural hearing loss with fair word recognition in both ears. A statement of the case (SOC) was issued to the veteran in May 1997 that informed him that his claims for service connection for right ear hearing loss and a compensable evaluation for left ear hearing loss had again been denied. In his substantive appeal of June 1997, the veteran argued that the VA had failed in its duty to assist him by not gathering pertinent evidence for his claims. The only treatment for his hearing loss noted in the substantive appeal was from the military and the VA. Attached to the substantive appeal was a hearing examination conducted by the military in January 1985. This examination diagnosed bilateral moderate to moderate severe high frequency sensorineural hearing loss. In a report of contact dated in December 1997, it was noted that the veteran had confirmed in a telephone conversation that the examination report of January 1985 was the only evidence from the military evaluating his hearing loss in recent years. In a supplemental statement of the case (SSOC) of January 1998, the veteran was again informed that his claims on appeal had been denied. At his Board hearing in April 1998, the veteran testified that he had experienced a lot of noise exposure from artillery guns while serving in the military. He claimed that he had first noticed his hearing loss in 1969, but did not have it treated until 1985. It was acknowledged by the veteran that all of his medical treatment for his hearing loss had been conducted either by the military or the VA. He alleged that his current hearing loss hindered his ability to communicate and understand others which hindered him in his occupation as a minister. The Board remanded this case in September 1998 so that the RO could conduct development of the medical evidence. The veteran was afforded a VA audio examination in November 1998. He complained of difficulty hearing women's' voices and understanding the television. The veteran denied any other problems with his ears except for his claimed hearing loss. It was noted that the veteran wore hearing aids in both ears. Audiometric testing revealed the following results: HERTZ 250 500 1000 1500 2000 3000 4000 6000 8000 RIGHT - 20 30 - 55 55 60 - - LEFT - 25 40 - 65 70 80 - - The average pure tone threshold for the right ear was reported to be 50 decibels with speech recognition of 92 percent, and 63.8 decibels in the left ear with speech recognition of 82 percent. The diagnosis was bilateral mild to moderately severe sensorineural hearing loss, slightly worse on the left side. It was commented by the examiner that word recognition was good in the right ear and fair in the left ear. By rating decision of March 1999, the RO granted service connection for the veteran's right ear hearing loss. His bilateral hearing loss was then evaluated as a single disability and found to be noncompensable under Code 6100. This award was made effective from October 1995. The veteran was notified of this decision in a SSOC sent to him in mid- March 1999. II. Applicable Criteria. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2 (1999). The U. S. Court of Appeals for Veterans Claims (Court) has stated that assignment of disability ratings for hearing impairment is 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). Under applicable criteria, evaluations for defective hearing 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 Hertz. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. 38 C.F.R. § 4.85 (1999). III. Analysis. The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased evaluation is well-grounded if the claimant alleges that a disorder for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran asserted that his service-connected hearing loss is worse than currently evaluated, and he has thus stated a well-grounded claim. In addition, the undersigned finds that the VA has conducted all development required in this case to comport with the requirements of 38 U.S.C.A. § 5107(a). The Board's remand of September 1998 required that the RO develop the appropriate medical evidence and readjudicate the veteran's claims. These actions were carried out by the RO and do not require any further development. See Stegall v. West, 11 Vet. App. 268 (1998). It is evident in the record reported above that the RO has obtained all pertinent evidence from both military and VA sources. By rating decision of March 1999, the RO granted service connection for right ear hearing loss, but found the veteran's service-connected bilateral hearing loss noncompensable. He was notified of this decision in the SSOC of mid-March 1999. The veteran was informed that his service-connected disability had been recharacterized as bilateral hearing loss. His accredited representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case) in July 1999. In this statement, the representative expressed the veteran's dissatisfaction with the noncompensable evaluation of his bilateral hearing loss. Therefore, based on the provisions of 38 C.F.R. §§ 20.202 and 20.203 (1999), the undersigned finds that the representative's VA Form 646 of July 1999 amounts to a timely substantive appeal of the March 1999 rating decision. Therefore, the issue on appeal is the propriety of the initial evaluation for bilateral hearing loss and it is properly before the Board at this time. Before proceeding further with its analysis of the veteran's claim, the Board believes that some discussion of the court's holding in Fenderson v. West, 12 Vet. App. 119 (1999), is warranted. In that case, the court distinguished between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection, as in this case, and a claim for an increased rating of an already service- connected condition. Fenderson, at 126. The Court held that the significance of this distinction is that, at the time of an initial rating, separate ratings may be assigned for separate periods of time based on the severity of the disability; this is a practice known as "staged ratings." Id. Since the July 1999 VA Form 646 expressed dissatisfaction with the initial rating assigned for the veteran's bilateral hearing loss, his claim must be considered in light of the court's holding in Fenderson. Consequently, the issue on appeal has been recharacterized accordingly. From a review of the record, including the SOC and various SSOC's, it is apparent that the RO considered evidence submitted in connection with the veteran's claim at various times during the course of his appeal, in light of the governing legal authority. Therefore, the RO, in effect, considered whether "staged ratings" were warranted. Consequently, it is not necessary to remand this case to the RO for further consideration of the possibility of receiving staged ratings because this would not result in a different analysis by the RO or new arguments by the veteran. That being the case, he will not be prejudiced by the Board proceeding to adjudicate his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Robinette v. Brown, 8 Vet. App. 69 (1995). As to the current rating to be assigned the veteran's bilateral hearing loss, it is observed that the veteran has been rated noncompensable pursuant to Code 6100. In this regard, the Board notes that, during the pendency of this appeal, VA issued new regulations for evaluating diseases of the ears and other sense organs, effective June 10, 1999. 62 Fed. Reg. 25,202-25,210 (May 11, 1999). The Court has held that, where laws or regulations change after a claim has been filed or reopened and before administrative or judicial process has been concluded, the version most favorable to the veteran applies, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to provide otherwise and the Secretary has done so. Karnas v. Derwinski, 1 Vet. App. 308 (1991); see also Fischer v. West, 11 Vet. App. 121 (1998). The regulations noted above had not been published or become effective at the time the RO issued its decision awarding a noncompensable evaluation for the veteran's bilateral hearing loss. Therefore, the new regulations were not applied by the RO. Nor did the RO apply or discuss them in its SSOC in March 1999. Prior to reaching the analysis of this claim on the merits, the Board has considered whether or not the veteran would be prejudiced if the Board proceeded with appellate consideration of the claim without prior consideration of the new criteria by the RO. In this regard, the Board notes that the evaluation of hearing impairment is based on examinations using controlled speech discrimination tests together with results of a pure tone audiometric test. 38 C.F.R. § 4.85. The results are charted on Table VI and Table VII. Thus, in order to assign an increased evaluation for his hearing loss, the veteran must demonstrate a decrease in percentage of speech discrimination and/or an increase in average pure tone decibel loss. The Board has compared the previous versions of Table VI and Table VII, and the new versions of these tables. There has been no discernable change. Further, the Board finds that the revisions made to 38 C.F.R. § 4.86 pertain to only exceptional patterns of hearing loss, and that consideration of these newly developed criteria would by no means affect the outcome of the veteran's claim in this case. In sum, the Secretary has stated that "[t]he revisions of the sections addressing ear and other sense organs are part of the overall revision of the rating schedule based on medical advances, etc., rather than representing liberalizing interpretations of regulations. We have explained above the reasons for the provisions of Sec. 4.86. The preamble erred in discussing these provisions as liberalizations. Rather, they are an attempt to assure more equitable evaluations in a small number of veterans with unusual patterns of hearing impairment." 62 Fed. Reg. at 25,202. Where new regulations have been promulgated, it is the usual practice to remand the issue to the RO to afford the veteran due process in the sense that consideration is given to both the new and the old rating criteria by the RO in the first instance. However, in this case, where there has been no change in the substantive criteria directly affecting the veteran's claim, the Board has determined that there is no prejudice to the veteran in proceeding to consider the issue. Remand of the issue would only needlessly delay consideration of the veteran's claim, without any benefit to the veteran. The Board further notes that the veteran has had ample opportunity to advance argument and evidence as to the limitations produced by his service connected disability, and there is no prejudice in the Board reviewing his claim on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). The results of the December 1995 examination indicate that the veteran had an average pure tone threshold in the right ear of 48 decibels with speech recognition of 94 percent, and an average of 53 decibels with speech recognition of 88 percent in the left ear. Evaluating these test scores based on Table VI found at 38 C.F.R. § 4.85, the veteran's right ear hearing acuity is at Level I and his left ear is at Level II. This level of hearing acuity, as reflected on Table VII of 38 C.F.R. § 4.85, is entitled to a noncompensable evaluation. The results of the January 1997 examination indicate that the veteran had an average pure tone threshold in the right ear of 49 decibels with speech recognition of 86 percent, and an average of 56 decibels with speech recognition of 76 percent in the left ear. Evaluating these test scores based on Table VI found at 38 C.F.R. § 4.85, the veteran's right ear hearing acuity is at Level II and his left ear is at Level IV. This level of hearing acuity, as reflected on Table VII of 38 C.F.R. § 4.85, is entitled to a noncompensable evaluation. Finally, the results of the November 1998 examination indicate that the veteran had an average pure tone threshold in the right ear of 50 decibels with speech recognition of 92 percent, and an average of 64 decibels with speech recognition of 82 percent in the left ear. Evaluating these test scores based on Table VI found at 38 C.F.R. § 4.85, the veteran's right ear hearing acuity is at Level I and his left ear is at Level IV. This level of hearing acuity, as reflected on Table VII of 38 C.F.R. § 4.85, is entitled to a noncompensable evaluation. None of the above examination results provide evidence that would result in a favorable outcome, that is, a compensable evaluation for the veteran's service-connected bilateral hearing loss. There is no need for consideration of staged ratings in the current case as the veteran's hearing loss, even at its worst in January 1997, was at a noncompensable level. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim and, therefore, an increased evaluation for bilateral hearing loss is not warranted. ORDER Entitlement to an increased (compensable) evaluation for bilateral hearing loss is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals