BVA9500963 DOCKET NO. 93-08 937 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from November 1942 to November 1943. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August, 1992 rating decision of the Providence, Rhode Island, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which in part, denied entitlement to an evaluation in excess of 10 percent for the appellant's service- connected bilateral hearing loss. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 10 percent for his bilateral hearing loss. He asserts that he has difficulty hearing conversational speech, and cannot hear at all without his prescribed hearing aides. 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 appellant'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 appellant's claim for an evaluation in excess of 10 percent for bilateral hearing loss. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. An evaluation in excess of 10 percent for bilateral hearing loss has not been clinically demonstrated for VA purposes, as the most current audiological examination indicates Level III hearing in his right ear and Level II hearing in his left ear. CONCLUSION OF LAW The criteria, either schedularly or extraschedularly, for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.951, Part 4, § 4.85, Table VI and Table VII, 4.86, Diagnostic Codes (DC) 6100, 6101 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to his claim. 38 U.S.C.A. §5107(a) (West 1991). After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. The evidentiary record includes a completely documented history of the appellant's service-connected hearing loss disability since 1943, as well as two private audiograms dated in July and August 1991, and a February 1992 VA audiogram. Therefore, the Board concludes the evidence currently of record adequately details the entire history of the appellant's service-connected bilateral hearing loss disability, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). Separate diagnostic codes identify the various disabilities. A disability which has been continuously rated at or above any evaluation for 20 or more years for compensation purposes will not be reduced to less than such evaluation except upon a showing that such rating was based upon fraud. 38 C.F.R. § 3.951(b) (1993). Furthermore, a readjustment to the schedule for rating disabilities shall not be grounds for reduction of the disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability has actually improved. 38 C.F.R. § 3.951(a) (1993). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1993). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Under current VA regulations effective since December 1987, the severity of hearing loss is determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, DC's 6100 through 6110 (1993). 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 hertz (cycles per second). The revised Schedule for Rating Disabilities allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Service medical records indicate that the appellant was diagnosed with chronic otitis media with bilateral hearing loss, existing prior to service. By a rating decision dated in December 1944, service connection by aggravation for otitis media to include bilateral hearing loss was granted, with a 10 percent disability evaluation assigned therewith. Following a November 1946 VA hearing evaluation, a 20 percent evaluation was assigned for the appellant's service-connected otitis media with bilateral hearing loss, effective November 1946. Such rating was confirmed in a rating decision dated in December 1948. In a February 1965 rating decision, the rating board apparently separated the appellant's service-connected hearing disorder to include separate evaluations for bilateral hearing loss, under DC 6291, and otitis media, nonsuppurative, under DC 6200. Such rating decision reduced the appellant's service-connected bilateral hearing loss evaluation to 10 percent, effective May 1965, which was subsequently confirmed in rating decisions dated in May 1971, June 1980, May 1986, and October 1986. In December 1991, the appellant reopened his claim for an evaluation in excess of 10 percent for bilateral hearing loss, which was again denied in an August 1992 rating decision. Current postservice medical reports of record include two 1991 audiograms performed by William Wexler, M.D., the appellant's private physician, and a February 1992 VA audiogram. Results from a July 1991 audiogram performed by Dr. Wexler indicated thresholds of 45, 50 60 and 90 decibels at 500, 1000, 2000, and 4000 hertz, respectively, for the right ear; and 70, 70, 55, and 75 decibels at 500, 1000, 2000, and 4000 hertz, respectively, for the left ear. The average pure tone thresholds were 61 for the right ear and 67 decibels for the left ear; however, no percentage of discrimination thresholds were indicated. Thus, such July 1991 audiometric results are insufficient for evaluation purposes. Results from Dr. Wexler's August 1991 audiogram indicated thresholds of 40, 50, 60 and 90 decibels at 500, 1000, 2000, and 4000 hertz, respectively for the right ear; and 65, 70, 65, and 70 decibels at 500, 1000, 2000, and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 60 decibels, with right ear speech recognition at 84 percent, resulting in Level IIII hearing acuity for the right ear; the average left ear pure tone threshold was 68 decibels, with left ear speech recognition at 100 percent, resulting in Level II hearing acuity for the left ear. The most current VA audiogram, dated in February, 1992, indicated thresholds of 50, 55, 70, and 85 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 70, 60, 65, and 65 decibels at 1000, 2000, 3000, and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 65 decibels, with right ear speech recognition at 86 percent, resulting in Level III hearing acuity for the right ear; the average left ear pure tone threshold was 65 decibels, with left ear speech recognition at 92 percent, resulting in Level II hearing acuity for the left ear. The objective clinical evidence of record simply does not support an evaluation in excess of ten percent for bilateral hearing loss. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under Diagnostic Code 6100, a noncompensable evaluation is assigned where hearing is at Level II for one ear and Level III for the other. Under current regulations, the same noncompensable rating results from either the August 1991 and February 1992 audiometric examination results. However, as the appellants bilateral hearing loss has been evaluated at or above 10 percent for over 20 years, such 10 percent evaluation is protected under 38 C.F.R. § 3.951(b) , and therefore cannot be reduced. Furthermore, current regulations also prohibit reduction of an assigned evaluation based upon simply a change in the rating schedule. 38 C.F.R. § 3.951(a) (1993). As the appellant's current evaluation of 10 percent for bilateral hearing loss was assigned prior to the December 1987 revision of the rating schedule for a hearing loss disability, and there is no medical evidence of record indicating his hearing disability has actually improved, such 10 percent disability evaluation for bilateral hearing loss is, at best, confirmed and continued at this time. In addition, it is noted that the evaluations derived from the current rating schedule are intended to make proper allowance for hearing aids. 38 C.F.R. § 4.86 (1993). The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. We must accordingly find that the preponderance of the evidence is against the appellant's claim for an evaluation in excess of 10 percent for a bilateral hearing loss disability. In making this determination, it is emphasized that the veteran no doubt has difficulty hearing conversational speech. That fact, however, does not provide a basis for assigning an increased rating in view of the findings recorded on the recent examinations. Moreover, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's bilateral hearing loss. The Board has considered the appellant's statements that he has difficulty hearing his grandchildren's voices over the telephone, however, we do not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1993). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied. HOLLY E. MOEHLMANN 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. (CONTINUED ON NEXT PAGE) 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.