BVA9501112 DOCKET NO. 93-03 724 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased (compensable) rating for right ear sensorineural hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from February 1969 to January 1971. This case came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, in October 1991 which denied the veteran service connection for tinnitus and a compensable rating for his service-connected right ear hearing loss. In February 1993, a personal hearing was held before a member of the Board at the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he has ringing in his right ear which he has associated with his hearing loss and which has increased in severity over the last 20 years, and that his right ear hearing loss has also worsened to the point where he has difficulty understanding ordinary conversation. 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 a compensable evaluation for right ear hearing loss is not warranted, but that service connection for tinnitus is established. FINDINGS OF FACT 1. The veteran’s tinnitus was caused by acoustic trauma during service. 2. The veteran has level I hearing in his right ear, and is not deaf in his non-service-connected left ear. CONCLUSIONS OF LAW 1. Tinnitus due to acoustic trauma was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 2. Right ear hearing sensorineural loss is zero percent disabling, according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.85, and Part 4, Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded; that is, the claims are not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claims, as mandated by 38 U.S.C.A. § 5107(a). Factual background The veteran’s service medical records reflect that the pure tone threshold at 4000 Hertz in his right ear increased significantly during service. His DD Form 214 indicates that his military occupational specialty was as a light weapons infantryman. His service records do not mention any complaints attributable to tinnitus. Based on findings recorded during VA audiological evaluation in March 1971, a rating decision in September 1971 granted service connection for right ear sensorineural hearing loss, rated noncompensably disabling. That examination contained no references to tinnitus. In April 1991 the veteran submitted a statement requesting a re- evaluation, since his tinnitus and hearing loss had worsened. Accompanying that statement was the report of a private ear, nose and throat physician reflecting audiological testing in July 1990. The results were as follows: HERTZ (CYCLES PER SECOND) 1000 2000 3000 4000 AVERAGE Right 10 5 40 95 38 Left 10 5 25 60 25 Speech audiometry revealed speech discrimination ability of 100 percent in both ears. On a VA audiological evaluation in September 1991, pure tone thresholds, in decibels, were as follows: HERTZ (CYCLES PER SECOND) 1000 2000 3000 4000 AVERAGE Right 10 5 60 90 41 Left 5 10 20 60 24 Speech audiometry revealed speech discrimination ability of 94 percent in both ears. The veteran complained of constant bilateral tinnitus, greater on the right. He also stated that the tinnitus caused severe headaches and had a severe effect on his daily life. The examiner commented that the audiometric findings revealed an asymmetrical hearing loss, greater in the right ear, which was probably due to the right ear noise exposure. Additional testing was recommended to rule out retrocochlear pathology. At his personal hearing in February 1993, the veteran testified as to the effect his hearing loss and tinnitus have on his daily life. He also stated that he was exposed to the concussion of a mortar shell which exploded near his right side and which caused his right ear hearing loss. He indicated that the blast also resulted immediately in ringing in his right ear, which he attributed to being just part of his hearing loss. He further testified that the ringing has continued since then and has grown worse over the years, to the point where, at times, it is very severe. Analysis Service connection for tinnitus Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Each disabling condition shown by a veteran’s service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1993). Additionally, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, there is no clinical evidence of the presence of tinnitus until more than 20 years after the veteran’s separation from service. However, service connection for right ear sensorineural hearing loss was established upon the veteran’s separation from service in 1971, at which time he stated that it began during the period he served as a medic in Vietnam. At his personal hearing in 1993, the veteran credibly testified as to the details of the mortar blast which caused his hearing loss. He also stated that he had ringing in his right ear immediately thereafter, and that the tinnitus has worsened considerably since then. Private and VA audiological reports obtained since 1990 document the veteran’s complaint of bilateral tinnitus. The Board finds that, based on the veteran’s hearing testimony, and considering the circumstances of his service and the event which caused his service-connected hearing loss, it is reasonable to attribute his tinnitus to that same event. Accordingly, resolving all doubt in the veteran’s favor, the Board concludes that his tinnitus was incurred in active service, and that service connection for the disability is in order. Increased rating for right ear hearing loss 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; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations should 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 (1993). Although 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, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App 55 (1994). In evaluating the veteran’s claim, 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). 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 unilateral defective hearing range from noncompensable to 10 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 audiometric tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 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. The recent private and VA audiological data are very consistent with each other. Both reports document some deterioration of the veteran’s service-connected right ear hearing since his separation from service. Also, both reports show that he is not deaf in either ear. As indicated above, for rating purposes, the hearing in the veteran’s non-service-connected left ear is taken to be normal, although increased thresholds were recorded at two frequencies. However, application of the most recent VA data to the rating criteria reflects Level I hearing in each ear. Despite the veteran’s complaints of worsened hearing, a noncompensable evaluation is to be assigned for Level I hearing in each ear. Therefore, an increased rating for the veteran’s hearing loss is not warranted at this time. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his hearing loss, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). With respect to this issue, the Board finds that the preponderance of the evidence is against the veteran’s claim. ORDER Service connection for tinnitus is granted. An increased (compensable) rating for right ear sensorineural hearing loss is denied. N. R. ROBIN 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.