BVA9503906 DOCKET NO. 93-10 710 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss disability. 2. Entitlement to an increased (compensable) rating for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Dutzman, Associate Counsel INTRODUCTION The veteran had active service from February 1941 until October 1945. This matter arises from an October 1992 rating decision in which the regional office (RO) established service connection for bilateral hearing loss and tinnitus but found both disabilities to be noncompensable. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an error has been made in evaluating his claims for bilateral hearing loss and tinnitus. Essentially, he maintains that the current evaluations do not reflect the true severity of his disabilities. He states that these conditions cause him chronic discomfort and interfere with his daily life. Specifically, he misses much of what is said, must constantly wear hearing aids, and experiences episodes of ringing in his ears. As such, he argues that he should be given a combined evaluation of 30 percent for these disabilities. 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 the preponderance of the evidence supports entitlement to an evaluation of 10 percent each for bilateral defective hearing and tinnitus. FINDINGS OF FACT 1. All evidence needed for an equitable resolution of this case has been secured. 2. The VA audiological examination shows that bilateral hearing loss disability is manifested by an average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 hertz of 71 decibels in the right ear and 56 decibels in the left ear. Speech discrimination ability is 80 percent in the right ear and 90 percent in the left ear. 3. The veteran's hearing loss disability more closely approximates Level IV in the right ear and Level III in the left ear. 4. The veteran has persistent tinnitus related to acoustic trauma in service. 5. The veteran's bilateral hearing loss and tinnitus do not present an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. A 10 percent evaluation for bilateral hearing loss disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.85, Part 4, Diagnostic Code 6101(1993). 2. A 10 percent evaluation for tinnitus is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.87(a), Part 4, Diagnostic Code 6260 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107. In this regard, he has submitted evidence in support of his claims which makes them plausible. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board also finds that the Department of Veteran Affairs (VA) has complied with its obligation to assist the veteran with the development of his claim. 38 U.S.C.A. § 5107 (West 1991). See also Littke v. Derwinski, 1 Vet.App. 90 (1990). According to the report of separation the veteran was awarded the Purple Heart for wounds received in action in December 1944 in Germany. During VA examination in October 1992, the veteran complained of progressive hearing loss since service in World War II which caused him to utilize a self-purchased hearing aid. He also complained of tinnitus which occurred every two to three weeks and lasted for approximately one hour. The physician's report states that the veteran "has markedly defective hearing, which is obvious on casual examination." A perforated right ear drum was noted as well as tinnitus of the right ear which the physician described as "constant." On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 75 80 75 71 LEFT 45 55 65 58 56 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 90 in the left ear. In December 1992, the RO received a copy of the results of a private hearing examination performed in November 1992. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 75 80 80 71 LEFT 50 55 65 70 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear. The physician's impression was that the veteran suffered from moderate to severe bilateral sensorineural hearing loss. It was reported that the veteran was doing well with amplification on the right side. I. 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 controlled 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 revised 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 Part 4, Diagnostic Codes 6100 to 6110 (1993). The report of VA audiometric examination, conducted in October 1992, shows Level IV hearing loss in the right ear and Level II hearing loss in the left ear. This degree of bilateral hearing loss disability is assigned a noncompensable rating under Diagnostic Code 6100. Closer consideration of 38 C.F.R. § 4.85, however, reveals that a pure tone threshold average of 58 in the left ear would have warranted assignment of Level III for the veteran's left hearing loss disability. Bilateral hearing loss disability manifested by hearing acuity of Level IV in one ear and Level III in the other ear is assigned a 10 percent rating under Diagnostic Code 6101. The Board is of the opinion that the difference between a pure tone threshold average of 56 decibels and 58 decibels in the right ear is statistically insignificant, particularly in view of the fact that an audiometric examination performed one month later resulted in a pure tone threshold average of 60 for that ear. Where the evidence is in equipoise, as in the case at hand, any doubts should be resolved in favor the veteran. Accordingly, the Board finds that the evidence, with application of the benefit of the doubt provisions set forth at 38 U.S.C.A. § 5107(b), and the provisions set forth at 38 C.F.R. § 4.7 by which a disability picture more nearly approximating the next higher evaluation is assigned that evaluation, favors the granting of a 10 percent rating for bilateral hearing loss disability. 38 U.S.C.A. §§ 5107(b) (West 1991); 38 C.F.R. §§ 4.7, 4.85, 4.86, 4.87, Part 4, Diagnostic Codes 6100, 6101 (1993). The rating schedule does not provide a basis for granting an evaluation in excess of 10 percent, given the current findings. II. Tinnitus The rating schedule provides for a 10 percent disability evaluation for tinnitus where the evidence establishes persistent tinnitus as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87, Part 4, Diagnostic Code 6260 (1993). The RO granted service connection for the veteran's tinnitus but found it to be noncompensable on the grounds that the evidence did not show that the condition was persistent. Evaluation for the veteran's service connected tinnitus turns on the frequency over a period of time of active symptomatology and the etiology of such pathology. Persistent tinnitus as symptom of head injury, concussion or acoustic trauma warrants a 10 percent evaluation. Based on its review of the evidentiary record, the Board finds the evidence of this case to be supportive of a 10 percent evaluation for tinnitus. The record shows that the veteran served as an antitank gun crewman in World War II. Based on the evidence, it is clear that the veteran was exposed to significant acoustic trauma and the trauma is likely to have caused the veteran's tinnitus. During the October 1992 VA examination, the veteran stated that he experienced bilateral tinnitus every two to three weeks lasting for approximately one hour per episode. Physical examination confirmed that the veteran's right ear drum was perforated and it was reported that he had "constant" tinnitus. The rating schedule requires that the tinnitus be "persistent," not "constant." A condition which recurs every two to three weeks over a period of years can reasonably be defined as persistent. Therefore, after reviewing the evidence, and resolving all doubt in favor of the veteran, a 10 percent evaluation is warranted for persistent tinnitus as a symptom of acoustic trauma. Diagnostic Code 6260 does not provide for an evaluation in excess of 10 percent for tinnitus, and the Board does not find that any other diagnostic code would provide a basis for an evaluation in excess of 10 percent for tinnitus. III. General Considerations While the veteran contends that he is entitled to a combined 30 percent disability evaluation, there is no schedular basis on which to grant such an evaluation. The veteran complained that he must wear a hearing aid and experiences dizziness. The rating schedule does not provide for increased ratings for hearing loss disability or tinnitus based on the use of hearing aids. The private physician, who examined the veteran in December 1992, stated that he was "doing well" with amplification of the right ear. As to the veteran's contentions regarding dizziness, there is no clinical evidence that this symptom is causing significant disability. In fact no complaints of dizziness were shown on either the VA or private examinations. On the VA examination, it was specifically noted that he had no balance problems. Accordingly, his complaints of the need for hearing aids and of episodes of dizziness, do not provide a basis for granting an increased evaluation for hearing loss and tinnitus under the rating schedule. In reaching its conclusions in this case the Board has considered all of the provisions of Chapters 3 and 4 of 38 C.F.R. (1993). The Board has specifically considered the provisions of 38 C.F.R. § 3.321, pertaining to extra-schedular evaluations. However, the veteran's disabilities do not present such an exceptional or unusual disability picture, as would be manifested by marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (1993). Therefore, an evaluation of more than 10 percent for each of veteran's disabilities is not warranted. ORDER A 10 percent evaluation for bilateral hearing loss disability and a 10 percent evaluation for tinnitus is granted, subject to the laws and regulations governing the payment of monetary awards. LAWRENCE M. SULLIVAN 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.