Citation Nr: 0002048 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-03 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral sensorineural hearing loss. 2. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, right foot. 3. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active duty from June 1984 to March 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1997 rating decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA) which (in part) granted service connection for tinnitus, bilateral testicular cancer, peripheral neuropathy of the left and right foot, and bilateral sensorineural hearing loss. In December 1997 the veteran expressed disagreement with the ratings assigned for his hearing loss and peripheral neuropathy. A statement of the case was issued in January 1998, and the veteran's substantive appeal was received in February 1998. A February 1999 hearing officer's decision increased the rating for the veteran's peripheral neuropathy of the left and right foot to 40 percent, effective from March 28, 1997 (the day after the veteran's discharge from service). The Board notes that the September 1997 rating decision granted the veteran service connection for bilateral testicular cancer with bilateral orchiectomy, and assigned a rating of 100 percent effective March 28, 1997, and a 30 percent evaluation effective August 1, 1997. The veteran expressed disagreement with the assigned ratings for his service-connected bilateral testicular cancer with bilateral orchiectomy, and the veteran also completed an appeal as to this issue. However, this issue was withdrawn from appellate status in a November 1998 statement. See 38 C.F.R. § 20.204 (1999). FINDINGS OF FACT 1. The veteran's service-connected bilateral sensorineural hearing loss results in an average 39 decibel loss with a speech recognition score of 92 percent in the right ear, and an average 38 decibel loss with a speech recognition score of 92 percent, in the left ear. 2. The veteran's service-connected peripheral neuropathy, right foot, is productive of symptomatology which, by analogy, is no more than that resulting from moderately severe incomplete paralysis; there is no marked muscular atrophy. 3. The veteran's service-connected peripheral neuropathy, left foot, is productive of symptomatology which, by analogy, is no more than that resulting from moderately severe incomplete paralysis; there is no marked muscular atrophy. CONCLUSIONS OF LAW 1. The schedular criteria for entitlement to an increased (compensable) rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100 (1999). 2. The schedular criteria for entitlement to rating in excess of 40 percent peripheral neuropathy, right foot, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (1999). 3. The schedular criteria for entitlement to rating in excess of 40 percent peripheral neuropathy, left foot, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is appealing the original assignment of disability evaluations following awards of service connection, and, as such, his claims for the assignment of higher evaluations are well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). After reviewing the file which includes service medical records and several VA examinations, the Board finds that the record as it stands is adequate to allow for equitable review of the veteran's appeal, and that no further action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). 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. Further, since the present appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluations, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). A. Bilateral Hearing Loss. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz). To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes (DC) 6100-6110. The assignment of disability ratings for hearing impairment 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). The veteran was granted service connection for bilateral sensorineural hearing loss in a September 1997 rating decision, based on service medical records and a June 1997 VA audiometric examination, and was assigned a noncompensable evaluation. VA audiological examination in June 1997 showed an average pure tone threshold of 28 in the right ear with 96 percent speech discrimination with an average pure tone threshold of 28 in the left era with 94 percent speech discrimination. The veteran most recently underwent VA audiological examination for rating purposes in January 1999. Pure tone threshold levels averaged 39 decibels for the right ear and 38 decibels for his left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. The examiner noted that the veteran suffered from moderate sensorineural hearing loss in the right ear and moderate to moderate-severe sensorineural hearing loss in the left ear. The examiner also noted that word recognition was not within normal limits. As the VA audiological testing reveals an average 39 decibel loss, coupled with a speech recognition score of 92 percent in the right ear, a numeric designation of I is warranted under 38 C.F.R. § 4.85, Table VI. The average 38 decibel loss, coupled with a speech recognition score of 92 percent in the left ear, results in a numeric designation of I. When these results are coupled using Table VII, the appropriate percentage evaluation is 0 percent, designated as Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.87. The United States Court of Appeals for Veterans Claims (Court) has held that "[a]ssignment of disability ratings for hearing impairment 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 (1993). Thus, the presently assigned 0 percent rating is compatible with the veteran's bilateral sensorineural hearing loss, and a preponderance of the evidence is against a higher evaluation for this disability at any time during the course of the appeal. Fenderson. B. Right Foot and Left Foot Peripheral Neuropathy. The veteran has been assigned separate 40 percent ratings for the peripheral neuropathy of each foot by analogy to the rating criteria of Diagnostic Code 8520 for paralysis of the sciatic nerve. Under this Code, a 40 percent rating is warranted for moderately severe incomplete paralysis; the next higher rating of 60 percent is for application for severe incomplete paralysis with marked muscular atrophy. The evidence clearly shows that the veteran suffers from peripheral neuropathy secondary to chemotherapy. He has testified that the pain is on a 24 hour basis and that it measures 7 on a scale of 10 and then goes to 10. He further stated that he is unable to stand for long periods or walk for long distances and that he also suffers numbness and cramping of the feet. On VA peripheral nerve examination in May 1997, strength was reported to be 5/5 throughout the extremities. VA examination in September 1998 revealed no atrophy or weakness. Sensation did reveal a markedly decreased vibratory sensation. The veteran underwent another VA peripheral nerve examination in January 1999. Examination of the extremities revealed no weakness or atrophy. While it is clear that the veteran's disabilities of the feet result in significant impairment, there is simply no evidence of marked muscular atrophy to allow for a higher rating for either foot under Diagnostic Code 8520. The veteran's main complaints of pain, numbness and cramping have been recognized by rating the each foot as moderately severe by analogy to Code 8520. The Board is unable to find that the impairment is severe with marked muscular atrophy so as to warrant higher ratings. The veteran is still able to stand and walk to some degree, although clearly he is limited. Nevertheless, his abilities in this regard, while limited, do not demonstrate more than moderately severe impairment. In sum, the Board concludes that the current 40 percent rating assigned for each foot adequately reflects the current degree of impairment. The veteran may always advance increased rating claims should the disabilities increase in severity in the future. Conclusion. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service connected disorder at issue has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, with regard to each issue, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of equipoise of the positive evidence and the negative evidence to otherwise permit a favorable resolution of the present appeal. ORDER The appeal is denied as to all issues. ALAN S. PEEVY Member, Board of Veterans' Appeals