Citation NR: 9601110 Decision Date: 01/22/96 Archive Date: 02/07/96 DOCKET NO. 94-00 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for a service- connected left ear hearing loss, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. W. Lemoine, Associate Counsel INTRODUCTION The veteran had active military service from October 1953 to October 1955, December 1961 to December 1964, and November 1965 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim seeking entitlement to an increased evaluation for his service-connected left ear hearing loss, evaluated as 10 percent disabling. We note that the veteran requested a hearing on appeal before a VA hearing officer, which was scheduled for August 10, 1993. Notification of the scheduled hearing was sent to the veteran in a letter dated July 18, 1993. The record indicated that on August 9, 1993, the veteran requested the hearing be rescheduled. The RO granted the veteran's request and notified the veteran in a letter dated August 12, 1993, that his hearing was rescheduled for September 15, 1993. On August 30, 1993, the veteran requested the cancellation of the scheduled hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the veteran is entitled to an increased evaluation for his service-connected left ear hearing loss. They argue that the veteran's left ear hearing has deteriorated and that he now uses a hearing aid. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of evidence is against the veteran's claim for an increased evaluation for his service-connected left ear hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Most recent VA audiological evaluation indicated that the veteran has Level VI hearing loss in the left ear, manifested by an average pure tone decibel loss of 76 with 72 percent discrimination ability. 3. Service connection is in effect for hearing loss only in the veteran's left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the veteran's service-connected left ear hearing loss, are not met. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.951(a), 4.1, 4.7, 4.10, 4.85, and Part 4, Code 6100 (1994); Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd 972 F.2d 331 (Fed. Cir. 1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is not inherently implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Furthermore, after reviewing the record, we are satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might pertain to the issue on appeal. No further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). Review of service medical records revealed a February 1974 physical examination of the veteran which revealed an audiological evaluation with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 - 30 LEFT 15 10 10 - 30 On VA audiological examination in July 1975, the veteran complained of loss of hearing in the left ear. The veteran reported serving two tours of duty in Vietnam with subsequent ringing in the left ear and difficulty hearing. He indicated that he had difficulty hearing the telephone with his left ear. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 0 - 25 LEFT 5 5 55 - 80 The assessment was left ear high frequency hearing loss. Based on the above evidence, a September 1975 rating decision of the RO granted the veteran service connection for a left ear hearing loss and assigned a noncompensable disability evaluation, effective May 1974. On VA audiological evaluation in July 1978, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 - AVG. RIGHT 20 10 20 - 17 LEFT 20 15 65 - 33 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. Examination of the ear drums indicated much retraction, but no scarring, discharge, or perforation. The assessment was mild predominantly sensorineural type loss of hearing in the right ear and severe high frequency predominantly sensorineural type of loss of hearing in the left ear. On VA audiological evaluation in July 1983, speech reception thresholds were 30 decibels with 88 percent discrimination ability in the right ear and 40 decibels with 48 percent discrimination ability in the left ear. The impression was bilateral sensorineural hearing loss mild-severe in the left ear and mild-moderate in the right ear. Based on the above evidence a September 1983 rating decision of the RO granted the veteran an increased evaluation of 10 percent for his service-connected left ear hearing loss, effective December 1982. On VA audiological evaluation in August 1992, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 30 60 55 41.25 LEFT 40 90 100+ 100+ 82.5+ Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear. Received in March 1993 was a private medical report from the Huntington Ear Clinic, dated in February 1993, which indicated that the veteran was evaluated and diagnosed with a severe high frequency sensorineural hearing loss, more significant in the left ear. It was recommended that the veteran obtain hearing aids for both ears. Also received in March 1993 was a February 1993 letter from a VA audiologist asking the veteran if he wished to receive a medical clearance to wear hearing aids. Received in April 1993 were VA outpatient treatment records from September 1992 through March 1993, which indicated that in September 1992 the veteran reported a sudden onset of hearing loss in the left ear six months previously, accompanied by aural pain and intermittent dizziness. Audiological evaluation in September 1992, indicated pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 25 25 65 70 42.25 LEFT 30 75 115 NR - Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 60 percent in the left ear. On VA audiological evaluation in March 1993, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 20 65 60 41.25 LEFT 25 80 90 95 72.5 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 80 percent in the left ear. Received in September 1993 were private medical records from Kenneth Wolfe, M.D., which showed treatment of the veteran in August 1993. It was reported that the veteran was complaining of being off balance, tending to stagger to the right when he walked. The impression was a probable right inner ear pathology. On VA audiological evaluation in September 1993, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 30 40 70 70 52.5 LEFT 20 90 95 100 76.25 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 72 percent in the left ear. It was noted that the veteran had a hearing aid for each ear. In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet.App 55 (1994). An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10. Where there is a question as to which of two evaluations shall be applied, 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. In evaluating the veteran's requests for an increased rating, the Board considers the medical evidence of record. The medical findings are then compared to the VA's Schedule for Rating Disabilities. In evaluating the veteran’s claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Furthermore, consideration has been given to the impact of the veteran’s pain on his service-connected disability evaluation, as required by DeLuca v. Brown, No 94- 242 (US Vet.App. September 22, 1995). Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Evaluations of 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 cycles per second. To evaluate the degree of disability from 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 and Part 4, Diagnostic Code 6100 (1994). In situations where service connection has been granted only for defective hearing involving one ear, and the veteran does not have total deafness in both ears, the hearing of the non- service-connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 4.85, Diagnostic Codes 6100, 6101. Inasmuch as service connection is in effect for only left ear hearing loss, and since the veteran is not deaf in his right ear, the right ear hearing acuity is taken to be normal. For purposes of rating the veteran’s left ear hearing loss, then, a numeric designation of level I hearing is assigned for his right ear hearing. Accordingly, application of the most recent VA data to the current rating criteria reflects Level VI hearing in the left ear and Level I hearing in the right ear, resulting in a noncompensable evaluation. Despite the veteran’s verified complaints of an increased hearing loss, necessitating the wearing of bilateral hearing aids, a noncompensable evaluation is to be assigned for Level VI hearing in one ear and Level I hearing in the other ear, Diagnostic Code 6100. However, the Board notes that the veteran's left ear hearing disorder was previously evaluated as 10 percent disabling by a September 1983 RO rating decision. We note that in Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd 172 F.2d 33 (Fed. Cir., 1992), the United States Court of Veterans Appeals considered the legality of the November 1988 recision of a provision in VA's Adjudication and Procedure Manual, M21-1. The section at issue, Section 50.13(b), provided that if a "decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, (the RO should) apply the old criteria and make no reduction." The Court held in Fugere that VA's recision of that paragraph was "without observance of procedure required by law" and it was accordingly held to be "unlawful and set aside," thereby restoring the hearing loss evaluation protection afforded by the cited paragraph. Fugere, 1 Vet.App. at 110, quoting what is now codified at 38 U.S.C.A. § 7261(a)(3)(D) (West 1991). Because of facts present in this case, the tenets of Fugere require the application of the provisions contained in Section 50.13(b) of M21-1. Evaluations by VA of bilateral hearing loss ranged from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 Hertz), as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA regional office or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297, effective prior to December 18, 1987. A 10 percent evaluation for the veteran's service-connected left ear hearing loss was warranted for the results shown by VA audiological examinations in 1983. 38 C.F.R. Part 4, Code 6287, effective prior to December 18, 1987. As previously explained, application of the criteria adopted in December 1987 to the hearing data obtained at the most recent VA audiological examination of the veteran would lead to assignment of a noncompensable evaluation, clearly a reduction from the previously assigned 10 percent rating. However, the provisions of Section 50.13(b) of M21-1 forbid such a reduction. Furthermore, the law provides that readjustment to the VA’s rating schedule shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.951(a). Accordingly, the Board finds that the current 10 percent disability evaluation for the veteran's left ear hearing loss is warranted. In evaluating whether a rating higher than 10 percent is warranted currently, the Board must utilize the criteria which became effective December 18, 1987, and as noted previously an evaluation higher than the presently assigned 10 percent evaluation is clearly not warranted. Accordingly, while no reduction may be made in the rating of 10 percent for left ear hearing loss, an evaluation greater than 10 percent is not warranted at this time. 38 C.F.R. § 4.85 and Part 4, Code 6100, effective December 18, 1987. Finally, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) regarding the assignment of extraschedular evaluations for the veteran’s claim. We find this provision to be inapplicable to the claim before us because the disability picture is not exceptional or unusual, 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. We find that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s level of disability for his current claim. We have also considered the doctrine of giving the benefit of the doubt to the veteran under 38 U.S.C.A. § 5107 and 38 C.F.R. §§ 3.102, 4.3 (1994), but do not find the evidence is of such approximate balance as to warrant its application. ORDER An increased rating for left ear hearing loss is denied. S. L. COHN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -