BVA9505500 DOCKET NO. 93-05 258 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased (compensable) rating for service- connected bilateral hearing loss. 2. Entitlement to an increased rating for the residuals of gunshot wound to the right forearm, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty in the Armed Forces from March 1966 to March 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1990 rating decision from the San Francisco, California, Department of Veterans Affairs (VA) Regional Office (RO). Regarding the denial of entitlement to an increased rating for service-connected bilateral hearing loss, a notice of disagreement was received in March 1990. A statement of the case was issued in May 1990. A substantive appeal was received in October 1990. Regarding the denial of entitlement to an increased rating for the residuals of gunshot wound to the right forearm, a notice of disagreement was received in May 1990. A supplemental statement of the case was issued in July 1990. A substantive appeal was received in October 1990. The Board notes that a February 1995 rating decision denied entitlement to service connection for residuals of diabetes mellitus as a result of Agent Orange (dioxin) exposure. As a notice of disagreement is not of record for this issue, the issue is not in appellate status. 38 U.S.C.A. § 7105 (West 1991). The veteran's representative, in his June 1993 informal hearing presentation, stated that due to the veteran's service-connected disabilities he is unable to work. The RO has not addressed the issue of entitlement to a total disability rating for compensation based on individual unemployability. In addition, although the veteran has not specifically raised the issue of entitlement to a permanent and total disability rating for pension purposes, a claim for compensation is also considered a claim for pension under 38 C.F.R. § 3.151 (1994). The United States Court of Veterans Appeals has stated that the Board must develop the issue of entitlement to pension where the appellant has wartime service and alleges unemployability. Pritchett v. Derwinski, 2 Vet.App. 116 (1992) citing Ferraro v. Derwinski, 1 Vet.App. 326, 333 (1991). Therefore, the Board refers the issues of entitlement to a total disability evaluation for compensation based on individual unemployability and entitlement to pension, to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that his bilateral hearing loss causes him social embarrassment and difficulty in dealing with people when there is any background noise present. He maintains that he must employ amplification devices to use electronic media such as telephones. The veteran also stated that, due to the residuals of gunshot wound to his right forearm, he had lost strength in his right hand and was unable to lift objects of any weight with that hand. He also stated that he has numbness and loss of feeling in his right hand and fingers. 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 a disability rating of more than zero percent for the veteran's service-connected bilateral hearing loss is not warranted and that a disability rating of more than 10 percent for the veteran's service-connected residuals of gunshot wound to the right forearm is not warranted. FINDINGS OF FACT 1. The veteran has level I hearing bilaterally 2. The veteran's service-connected residuals of gunshot wound to the right forearm are manifested by well-healed scars with no adhesion, tenderness or pain. The scars have no effect on the function of the veteran's right elbow or arm. The scars are non- disfiguring. 3. There is no muscle damage or nerve damage due to the gunshot wound to the right forearm. CONCLUSIONS OF LAW 1. A disability rating higher than zero percent for the veteran's service-connected bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code 6100 (1994). 2. A disability rating higher than 10 percent for the veteran's service-connected residuals of gunshot wound to the right forearm is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.951, Part 4, Diagnostic Codes 5308, 7803, 7804, 7805 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims as to the issues currently in appellate status are well grounded within the meaning of 38 U.S.C.A. § 5107, (West 1991). As is the case here, claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) when a veteran asserts that his disabilities have worsened. Proscelle v. Derwinski, 2 Vet.App 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). The evaluations assigned for the veteran's service-connected disabilities are established by comparing the manifestations indicated in his medical records and with the criteria in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994). 38 U.S.C.A. § 1155 (West 1991). When there is a question as to which of two evaluations should be applied to a disability, 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 (1994). I. Bilateral Hearing Loss Service medical records reveal that the veteran sustained an injury to the right ear and right temple region with hemotympanum, right, due to an automobile accident in July 1966. A January 1968 discharge examination included an audiology evaluation. Concerning the right ear, the audiogram for pure tone thresholds revealed: a zero decibel (dB) threshold at 500; a zero decibel threshold at 1000, a zero dB threshold at 2000, a 10 dB threshold at 3000, a 15 dB threshold at 4000, and a 35 dB threshold at 6000. Concerning the left ear, the audiogram for pure tone thresholds revealed: a zero dB threshold at 500; a zero dB threshold at 1000, a zero dB threshold at 2000, a 25 dB threshold at 3000, a 40 dB threshold at 4000; and a 65 dB threshold at 6000. The examiner indicated that the veteran had asymptomatic high frequency hearing loss. In an October 1968 rating decision, the RO granted service connection for the bilateral high frequency hearing loss and assigned a zero percent rating. The veteran was afforded a VA examination to include an audiology evaluation in January 1990. Concerning the right ear, the audiogram for pure tone thresholds revealed: a 10 dB threshold at 1000, a 15 dB threshold at 2000, a 40 dB threshold at 3000, a 45 dB threshold at 4000; the average of these thresholds were 26. Concerning the left ear, the audiogram for pure tone thresholds revealed: a 10 dB threshold at 1000, a 50 dB threshold at 2000, a 65 dB threshold at 3000, a 75 dB threshold at 4000; the average of these thresholds was 50. His speech recognition was 96 percent in both ears. The examination revealed that the veteran had bilateral high frequency sensorineural hearing loss consistent with acoustic trauma. The veteran was afforded a VA examination to include an audiology evaluation in August 1992. Concerning the right ear, the audiogram for pure tone thresholds revealed: a 15 dB threshold at 500, a 20 decibel threshold at 1000, a 20 dB threshold at 2000, a 45 dB threshold at 3000, a 40 dB threshold at 4000; the average of the thresholds from 1000 to 4000 was 31. Concerning the left ear, the audiogram for pure tone thresholds revealed: a 15 dB threshold at 500, a 20 dB threshold at 1000, a 55 dB threshold at 2000, a 65 dB threshold at 3000, a 70 dB threshold at 4000; the average of the thresholds from 1000 to 4000 was 53. His speech recognition was 96 percent in both ears. The examination revealed that the veteran had bilateral high frequency sensorineural hearing loss, greater in the left ear. Constant bilateral tinnitus was also noted. Currently, the veteran asserts that his bilateral hearing loss causes him social embarrassment and difficulty in dealing with people when there is any background noise present. He maintains that he must employ amplification devices to use electronic media such as telephones. Evaluations of bilateral 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 bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal hearing through level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110. On the most recent VA audiological evaluation in August 1992, the examiner reported an average pure tone threshold of 31 in the right ear and 53 in the left ear, with speech recognition of 96 percent bilaterally. Under the applicable rating criteria, these findings translate to a numeric designation of hearing impairment at level I bilaterally. In this case, the application of the rating schedule to the numeric designation of level I bilaterally does not demonstrate entitlement to a compensable disability rating. Thus the Board is unable to grant the benefit sought on appeal with respect to this issue upon application of the rating criteria to the facts. II. Gunshot Wound to the Right Forearm The veteran was wounded during a mortar attack while serving in Vietnam in March 1967. As pertinent here, fragment wounds were sustained to the right forearm. Examiners noted at that time that there was no artery or nerve involvement. The wounds were debrided that same day. A VA examination was conducted in June 1968. The veteran stated that he sustained four mortar-shell fragment wounds to the right forearm. X-rays showed two small sliver-like foreign bodies in the right forearm. The right forearm showed four scars. One, on the upper lateral aspect, was about three fourths of an inch by one inch, it was irregularly oval, smooth, well healed, nontender, nonadherent and not depressed. It was somewhat pigmented. A second, on the extensor surface, was one and one half inches by one half inch. It was a surgical scar and it was slightly depressed, nontender, nonadherent. The third and fourth were on the flexor surface. They were smooth, well healed, nontender, nonadherent, and not depressed. In an October 1968 rating decision, the RO granted service connection for the residuals of gunshot wound to the right forearm and assigned a 10 percent rating under Diagnostic Code 5308 effective March 1968. VA examination in February 1990 showed two four centimeter scars to the forearm posteriorly and laterally and they were well healed and unattached to the deeper tissues. A VA examination, conducted in August 1992, noted two scars on the veteran's right forearm that measured 3.0 by 2.5 centimeters. They were both nontender and nonadherent. The more proximal one was not depressed while the more distal scar was depressed. There were no symptomatology attributable to them. The rating of a gunshot, shell fragment or shrapnel wound will first be considered on the basis of actual muscle damage. Slight muscle damage means there is a simple wound of the muscle without debridement, infection or effects of laceration. Moderate muscle damage usually means through-and-through or deep penetrating wound of relatively short track by shrapnel fragment with an absence of residuals of debridement or of prolonged infection. Moderately severe injury would involve a through-and-through or deep penetrating wound with debridement or prolonged infection or with sloughing of soft parts and intermuscular cicatrization. 38 C.F.R. § 4.56 (1994). Under Diagnostic Code 5308, when there is moderate injury to Muscle Group VIII, a 10 percent evaluation is assigned. When there is moderately severe injury to Muscle Group VIII, a 20 percent evaluation is assigned. The veteran stated on VA Form 1-9, received in May 1990, that, due to the residuals of gunshot wound to his right forearm, he had lost strength in his right hand and was unable to lift objects of any weight with that hand. He also stated that he has numbness and loss of feeling in his right hand and fingers. But there is no medical evidence of nerve damage. Further, as a result of the absence of any muscle damage due to the gunshot wound, entitlement to consideration, under Diagnostic Code 5308 has not been demonstrated. In fact, the VA examination, conducted in August 1992, did not note any symptomatology attributable to the gunshot wound to the forearm. When an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury. 38 C.F.R. § 4.20 (1994). Several provisions of the rating schedule must be taken into account in rating the veteran's disability. Although the same symptoms may not be evaluated under various diagnoses, it is necessary to determine which rating criteria most closely approximate the current manifestations of disability. In this case, the rating criteria that might be applicable also include those for scars. A compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face or neck) requires that they be poorly nourished with repeated ulceration; that they be tender and painful on objective demonstration; or that they produce limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 (1994). As the scar is not poorly nourished with repeated ulceration; or tender and painful on objective demonstration; or produces limitation of function of the body part which it affects; the veteran is not entitled to a compensable evaluation for such scar. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1994). Under 38 C.F.R. § 4.40 (1994), functional loss of part of the body due to pain is also considered a disability. Functional loss is the inability to perform normal working movements, and must be supported by adequate pathology and evidenced by the visible behavior of the veteran. In this case, the veteran has no functional loss nor has any painful motion been demonstrated. The Board has also considered whether the veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1994). That regulation permits the application of an extraschedular rating in exceptional cases where the schedular ratings do not adequately represent the disability picture. However, the schedular ratings in this case do adequately represent the disability picture. That is, his service-connected disability does not require frequent periods of hospitalization nor has marked interference with employment been shown. 38 C.F.R. § 3.321(b)(1) (1994). The Board concludes that the preponderance of the evidence is against the veteran's claim for an increased rating for gunshot wound to the right forearm. In fact the Board concludes that a ten percent evaluation is warranted only because the ten percent rating has been in effect for over 20 years and it is protected. 38 C.F.R. § 3.951(b) (1994). ORDER The appeals are denied. E. M. KRENZER 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.