BVA9505493 DOCKET NO. 93-13 745 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to a compensable evaluation for bilateral high frequency hearing loss. 2. Entitlement to an effective date earlier than March 26, 1991, for an allowance of a 10 percent schedular evaluation for tinnitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from May 1960 to May 1962. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bilateral high frequency hearing loss disability has increased in severity so as to warrant an evaluation in excess of 10 percent. He maintains that he cannot hear the telephone and that he is bothered by background noise. He asserts that the severity of his disability is evidenced by the fact that a Department of Veterans Affairs (VA) and private audiologist recommended that he obtain hearing aids. With regard to the claim of entitlement to an earlier effective date for tinnitus, the veteran contends that benefits should be retroactive to his period of active service since that is when the disability was diagnosed. DECISION OF THE BOARD The Board of Veterans' Appeals (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 the evidence is against the claim of entitlement to a compensable evaluation for bilateral high frequency hearing loss. It is, however, the decision of the Board that the preponderance of the evidence is not against the claim of entitlement to an effective date earlier than March 26, 1991, for a 10 percent schedular evaluation for tinnitus. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO). 2. The veteran's hearing loss at 1000, 2000, 3000, and 4000 Hertz (Hz) for the right ear is an average pure tone loss of 46 decibels, and the veteran's speech recognition in the right ear is 98 percent. 3. The veteran's hearing loss at 1000, 2000, 3000, and 4000 Hertz (Hz) for the left ear is an average pure tone loss of 60 decibels, and the veteran's speech recognition in the left ear is 96 percent. 4. The veteran filed a claim for increased compensation for his service-connected auditory disability on September 13, 1983. 5. The claim of September 13, 1983, was never fully adjudicated. 6. Tinnitus has persisted since service. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral high frequency hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (1994). 2. An effective date of September 13, 1982, for the assignment of a 10 percent schedular tinnitus, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 3.114(a)(3), 3.400(o), 3.160(c), 4.87a, Diagnostic Code 6260 (1994); 38 C.F.R. § 4.84b (1976). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially finds that the appellant's claims are well- grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, they are not inherently implausible. We also find that the facts relevant to the issues on appeal are properly developed and that the VA satisfied its statutory obligation to assist the veteran in the development of facts pertinent to the claims. Id. On appellate review, we see no areas in which further development might be fruitful. Historically, the veteran complained of ringing in his ear and hearing loss since a weapons firing incident during active service. A service audiometric evaluation and the service separation examination showed a bilateral high frequency hearing loss. A VA audiology examination in August 1962 also showed a bilateral high frequency hearing loss with tinnitus. The veteran was service connected for bilateral high frequency hearing loss with tinnitus in a September 1962 rating action and assigned a noncompensable evaluation. Subsequently a November 1992 rating action denied the veteran's claim for an increased evaluation for bilateral high frequency hearing loss and granted a 10 percent evaluation for tinnitus effective March 26, 1992. In a March 1993 Hearing Officer's Decision the effective date for the tinnitus evaluation was set at March 26, 1991. I. Bilateral High Frequency Hearing Loss Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye towards the lack of usefulness of the body or system in question to self support. 38 C.F.R. § 4.10 (1994). Impairments of auditory acuity are evaluated using the criteria in 38 C.F.R. § 4.85 (1994). Evaluations of bilateral 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 bilateral service- connected defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and § 4.87, Diagnostic Codes 6100 to 6110 (1994). The evaluations derived from this schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1994). In a March 1992 audiology report, Mark T. McDowall, Ph.D., reported that pure tone audiometry showed that both the veteran's right and left ears had a sloping mild to severe sensorineural hearing loss. It was also noted that speech audiometry revealed very mild loss of hearing in the right ear for purposes of communication with reduced sound discrimination ability. The left ear showed mild loss of hearing in the right ear for purposes of communication with reduced sound discrimination ability. Dr. McDowall also recorded that impedance audiometry showed that the right and left ears had good mobility of tympanic membrane, normal middle ear pressure, and contralateral acoustic reflexes present. Dr. McDowall concluded that the veteran presented a sloping high frequency sensorineural hearing loss of noise induced configuration. An audiometric evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 65 90 LEFT 30 35 80 85 The average pure tone threshold for the right ear was 50 decibels and for the left ear was 58 decibels. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. At a VA audiometric evaluation in April 1992, the veteran complained of bilateral tinnitus and bilateral hearing loss more marked on the left side since 1961 while in the service when he was exposed to heavy artillery fire. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 60 90 LEFT 30 40 80 90 The average pure tone threshold for the right ear was 46 decibels and for the left ear was 60 decibels. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The examiner reported that for the right ear, pure tone air and bone conduction thresholds show normal hearing from 500 Hz to 2000 Hz with a moderately severe progressing to severe sensorineural hearing loss from 3000 Hz to 4000 Hz, and that the speech recognition scores was normal. With respect to the left ear, the examiner noted that the veteran had normal hearing at 500 Hz with a mild progressing to severe sensorineural hearing loss from 1000 Hz to 4000 Hz, and that the speech recognition score was normal. The examiner concluded that the veteran might benefit from amplification. The veteran testified at his personal hearing in February 1993 that he could not hear the telephone in his home or at work due to his hearing loss disability. He also stated that he has difficulty dealing with his home security alarm, as he cannot hear it when it goes off. As an indication of the severity of the hearing loss disability, the veteran noted that both the VA examiner and Dr. McDowall recommended that he obtain hearing aids. The VA audiometric examination, in April 1992, showed the average pure tone decibel loss in the right ear was 46 decibels and the speech recognition level in the right ear was 98 percent. The average pure tone decibel loss in the left ear was 60 decibels and the speech recognition level in the left ear was 96 percent. These findings are then applied to Table VI of 38 C.F.R. § 4.87 (1994) which identifies Roman numeric designations "I" for the right ear and "II" for the left ear. These numeric designations are then applied to Table VII of 38 C.F.R. § 4.87 (1994). The appropriate rating for the veteran's current bilateral defective hearing resulting from these numeric designations applied to Table VII is noncompensable, and the veteran was, therefore, properly assigned a noncompensable evaluation under Diagnostic Code 6100. We also note that the results of the March 1992 private audiometric examination equate to a noncompensable evaluation when the provisions of 38 C.F.R. § 4.85 and Tables VI and VII are applied. 38 C.F.R. § 4.85 and § 4.87 Diagnostic Code 6100 (1994). The Board is cognizant of the veteran's personal hearing testimony, but the application of the audiometric results to appropriate regulations does not warrant a compensable evaluation. It is the determination of the Board that the preponderance of the evidence is against a compensable evaluation for bilateral high frequency hearing loss. Granting a compensable evaluation for bilateral high frequency hearing loss on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (1994) has also been considered, but the disability picture presented is not exceptional or unusual so as to preclude the application of the regular rating criteria. For example, the bilateral hearing loss has not resulted in marked interference with employment or frequent periods of hospitalization. II. Earlier Effective Date for Tinnitus The veteran argues that he is entitled to an effective date for service-connected tinnitus earlier than March 26, 1991, since tinnitus was first diagnosed during active service. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (1994). However, in cases involving a claim for an increased evaluation, the effective date may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (1994). See Quarles v. Derwinski, 3 Vet.App. 129, 134-35 (1992). Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. In order to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114(a) (1994). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3) (1994). The pertinent criteria for evaluating tinnitus are set forth in the VA's Schedule for Rating Disabilities, codified at 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1994). A maximum 10 percent evaluation is provided for tinnitus as a symptom of head injury, concussion or acoustic trauma. In 1976, the rating schedule was amended to provide a 10 percent evaluation for persistent tinnitus under Diagnostic Code 6260. 38 C.F.R. 4.84b (1976). In the rating decision of September 1962, service connection was granted for "high frequency hearing loss, bilateral, with tinnitus, left ear, Right A, Left A." That is to say, the hearing loss and the tinnitus were rated and designated as a single disorder. On VA Form 21-4138, dated September 12, "1984" but received at the regional office on September 13, 1983, the veteran declared that his hearing condition had worsened and that he wanted a reevaluation of the condition. In a rating action of July 17, 1984, the regional office found that an increased rating for bilateral defective hearing was not warranted. The regional office should not have adjudicated the veteran's claim so literally and narrowly. The veteran was asking for increased benefits for his auditory disability, and tinnitus was obviously established at that time. Moreover, compensation for tinnitus was authorized at that juncture. The rating decision of September 1962 plainly associated the tinnitus, i.e.,"ringing in the ears," with "M-1 firing" in service. Had the regional office considered the matter of a compensable rating for tinnitus, doubtlessly the 10 percent evaluation would have been assigned. That matter has remained open since September 1983. 38 C.F.R. § 3.160(c)(1994). Accordingly, since the disorder has been present since service, an effective date of one year prior to the receipt of the September 13, 1983, claim should be implemented. ORDER 1. Entitlement to a compensable evaluation for bilateral high frequency hearing loss is denied. 2. Entitlement to an effective date of September 13, 1982, for a 10 percent schedular evaluation for tinnitus is granted, subject to controlling regulations affecting the payment of monetary awards. JOHN E. ORMOND 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.