Citation Nr: 0000932 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-03 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Determination of an initial rating for left ear hearing loss, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION In November 1997, the Board of Veterans' Appeals (BVA or Board) granted service connection for left ear hearing loss. In a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, a noncompensable evaluation was assigned for left ear hearing loss. In a January 1999 rating decision, the RO denied service connection for tinnitus. The veteran, who had active service from May 1977 to May 1982, appealed these decisions to the BVA and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The veteran's tinnitus was not manifested during the veteran's military service, nor is such tinnitus otherwise related to her military service. 2. The veteran has level II hearing in the left ear, and there is no service-connected hearing impairment of the right ear. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The schedular criteria for an increased (compensable) evaluation for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85 Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Tinnitus In June 1989, the RO denied service connection for, among other things, an ear condition. At the veteran's August 1999 video conference hearing before the undersigned Board Member, the veteran's service representative noted that service connection for tinnitus had previously been denied in 1988 [sic]. As the June 1989 denial was for an unspecified ear condition, and the current claim is specifically for tinnitus, the Board finds that the current claim is a new claim and is to be adjudicated de novo. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131. Regulations also 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). Regulations further provide that service connection shall be granted for any disability which is proximately due to, the result of, or for the degree of aggravation caused by a service connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7Vet. App. 439, 448 (1995). Before reaching the merits of the veteran's claim, the threshold question which must be answered in this case is whether the veteran has presented a well grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (established by medical, or in some cases lay, evidence); and competent evidence of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). Service medical records noted no complaints of or treatment for tinnitus. In July 1978, the veteran complained of pain and aching in the ears, without drainage. The left ear canal was found to be red and inflamed. Records dated in September 1981, noted that the veteran had dull tympanic membranes with decreased mobility, and she was diagnosed with bilateral severe otitis media. At her separation examination in April 1982, the veteran denied a history of ear, nose or throat trouble, and no abnormality of the ears was noted. Private treatment records from Oakwood Hospital, from April 1988 to September 1988, noted that the veteran sought treatment for recurring pain in the left ear since March 1988. Lascelles Pinnock, M.D., noted that the veteran "first started having problems with the left ear after rupturing the ear drum with a Q-Tip three years ago." Dr. Pinnock's diagnosis was initially left otitis media with otitis externa, however, in May 1998, Dr. Pinnock noted that the veteran had a polyp in the left ear and continuous bleeding in the left ear canal. In July 1988, the veteran underwent a Type II tympanoplasty for removal of the polyp. In September 1988, the veteran continued to complain of pain in both ears, and was diagnosed with bilateral otitis externa. VA treatment records from April 1988 to October 1992 noted in November 1988 that the veteran complained of transient tinnitus and recurrent ear infections since her July 1988 ear surgery. Subsequent VA treatment records noted periodic complaints of severe left ear pain, as well as bilateral ear pain. An August 1993 VA examination report provided a history of left conductive hearing loss, status post left ear surgery for a tumor, with complaints of either benign paroxysmal vertigo, or benign positional vertigo. There were no complaints or diagnosis of tinnitus. A VA Audio-Ear diseases examination was conducted in October 1994. The veteran reported periodic unilateral tinnitus that the examiner estimated to be "mild." The veteran received additional VA auditory examinations in October 1996 and July 1998. The reports from these examinations noted complaints of constant unilateral tinnitus in the left ear, estimated by the examiner to be "moderate" in severity. At her August 1999 video-conference hearing held at the RO before the undersigned Board Member sitting in Washington, DC, the veteran testified that she suffered from infections and ear problems in service that got progressively worse, until she had to undergo ear surgery. When asked when tinnitus began, she responded "it may have been before or after my service." She said that she has been receiving continuous medical treatment for ear infections and tinnitus following separation from service. Following a careful review of all the evidence in this case, the Board finds that the veteran has not met all of the requirements of a well grounded claim. While the medical evidence establishes that the veteran currently suffers from tinnitus in the left ear, there is no evidence of tinnitus in service. The earliest evidence of tinnitus is not until November 1988, four months after surgery to remove a polyp in the veteran's ear. Significantly, there is no competent medical evidence of a nexus between the veteran's current tinnitus, and service. The only evidence presented by the veteran that tends to show a connection between tinnitus and service are her own statements. However, as a layperson, she is not competent to provide an opinion requiring medical knowledge, such as a question of medical relationship. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Given the foregoing, a plausible claim for service connection for tinnitus has not been presented. See Grottveit v. Brown, 5 Vet. App. 91 (1993). Consequently, such claim is not well grounded and must, therefore, be denied. 38 U.S.C.A. § 5107(a). II. Hearing Loss The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for the increased evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings, where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). After reviewing the record, the Board finds that no further action is necessary to meet the duty to assist the veteran with the development of evidence in connection with her claim. See 38 U.S.C.A. § 5107(a). Service connection for left ear hearing loss was granted by the Board in November 1997. The RO, in a December 1997 rating decision, assigned a noncompensable evaluation, effective February 1989. The RO's decision was based on the results of VA examinations conducted in October 1994 and September 1996. VA outpatient treatment records from April 1988 to March 1992 noted that the veteran gave a history of having had a tumor removed from the left ear in July 1988. She sought intermittent treatment, initially for pain and congestion in the left ear, and later, for dizziness and loss of hearing. She was diagnosed with otitis media in the left ear, and, in March 1992, with asymmetrical hearing loss with left vestibular weakness and left conductive hearing loss. A VA audiology examination was conducted in August 1993 (the Board notes that the examination report lists the date as August 1939.) Hearing in the veteran's right ear was determined to be within normal limits. The left ear was determined to have mild mixed hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 30 35 40 35 30 Average pure tone thresholds for the highest four frequencies were 10 decibels in the right ear and 35 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 percent in the left ear. The veteran received another VA audiological evaluation in October 1994. On that occasion, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 15 10 LEFT 20 35 40 40 30 Average pure tone thresholds for the highest four frequencies were 10 decibels in the right ear and 36 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ears. The examiner reported that the veteran's hearing was within normal limits in the right ear, and there was mixed loss in the left ear. In a Nose and Sinuses VA examination conducted a few days later, the diagnoses were "left ear A + B gap. Mild to moderate conductive hearing loss." The veteran was again examined by VA in October 1996. On this occasion, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 10 LEFT 60 60 50 50 50 The Board notes that average pure tone thresholds for the highest four frequencies were 8 decibels in the right ear and 53 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. The examiner reported that hearing was within normal limits in the right ear and there was a moderate mixed hearing loss in the left ear. At the August 1999 video conference hearing, the veteran testified that she works as a medical assistant, and that her hearing loss makes it difficult to perform blood pressure readings using a stethoscope and pressure cuff because she cannot hear well enough to give the doctor an accurate reading. In addition, she said that at home, she sometimes does not hear someone knocking on her front door until her daughter points it out to her, and she has to turn up the volume on her television. Disability evaluations are based on the comparison of clinical findings with the relevant schedular criteria. 38 U.S.C.A. § 1155. 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 (1999). By regulatory amendment effective June 10, 1999, certain changes were made to the schedular criteria for evaluating hearing impairment, codified at 38 C.F.R. §§ 4.85-4.87. The Board notes, however, that the revisions of the sections addressing ear and other sense organs are part of the overall revision of the rating schedule based on factors such as medical advances, and do not represent liberalizing interpretations of regulations. Accordingly, the requirements of Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), are not for application in this case. 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, 349 (1992). In this respect, disability evaluations of defective hearing range from non-compensable 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 of 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability for 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 Diagnostic Code 6100. (Copies of these tables from the rating code were provided to the veteran and her representative in the statement of the case.) The Board, in its November 1997 decision granting service connection for left ear hearing loss, also denied service connection for right ear hearing loss. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, 38 C.F.R. § 4.85, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, 38 C.F.R. §§ 4.85 (1999), unless there is total deafness in both the service-connected and the non-service connected ears. See, 38 C.F.R. § 3.383 (1999). In this case, the audiometry findings from both the August 1993 and the October 1994 VA examinations are consistent with Level I hearing in the left ear. The audiometry findings from the most recent VA examination are consistent with Level II hearing in the left ear. Given that the non-service- connected right ear is assigned a designation of I, and even assuming the most recent results are the most accurate measure of the veteran's hearing loss, neither level I nor level II hearing in the left ear warrants a compensable evaluation under 38 C.F.R. §§ 4.85, Diagnostic Code (DC) 6100 for the veteran's left ear hearing loss. The Board, therefore, finds that the preponderance of the evidence is against a compensable evaluation for left ear hearing loss. In reaching this decision, the Board has considered the history of the veteran's hearing loss, as well as the current clinical manifestations. 38 C.F.R. §§ 4.1, 4.2. In addition, the Board has considered the doctrine of reasonable doubt; however, there is no medical evidence of hearing loss which would approximate the criteria for a compensable rating. The preponderance of the evidence is against the appellant's claim and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. Entitlement to a compensable evaluation of left ear hearing loss is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals