BVA9502764 DOCKET NO. 93-10 443 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from September 1966 to July 1968. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 1992 rating decision of the Indianapolis, Indiana, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which in part, denied entitlement to a compensable evaluation for bilateral hearing loss. The Board's decision is limited to the issue developed for appellate review. It is apparent from the record, however, that the appellant intends to raise a claim for service connection for tinnitus and vertigo secondary to his service-connected bilateral hearing loss. The appellant should contact the RO and assert such claims with specificity, and the RO should then take appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). The evidentiary record reflects that the appellant's claims for entitlement to service connection for a skin disorder, and entitlement to an evaluation in excess of 10 percent for a deviated septum were withdrawn by the veteran. Therefore, the Board concludes that such issues are withdrawn pursuant to the appellant's request, and will not be adjudicated at this time. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to a compensable evaluation for bilateral hearing loss. He argues his hearing has increased in severity, and that there is a discrepancy in the recent private and VA audiograms. 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 allowance of the appellant's claim for entitlement to a compensable evaluation 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. Current audiological examinations variously indicate Level I hearing in both ears, and Level I hearing in one ear and Level II or at Level IV in the other. CONCLUSION OF LAW The criteria, either schedularly or extraschedularly, for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, §§ 4.85, 4.86, Table VI and Table VII, Diagnostic Code (DC) 6100 (1994). 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 documented history of the appellant's service- connected hearing loss disability since 1968, as well as a February 1992 VA audiogram and a July 1992 private audiogram. Post-service medical reports of record also include treatment reports from Henry County Hospital, Robert W. Begley, M.D., David L. Martin, M.D., and Paul T. Kinkade, M.D. However, none of the aforementioned private medical reports or statements contain audiological complaints or findings, and are thus irrelevant to the issue before the Board. Therefore, the Board concludes the evidence currently of record adequately details the 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). As will be explained in greater detail below, while there is some discrepancy in the audiometric findings on file, clarification is not needed as there is no change in the ultimate outcome. 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 (1994); 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 (1994). Separate diagnostic codes identify the various disabilities. 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 (1994). 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 6100 through 6110 (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 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 a mild bilateral hearing loss upon the appellant's separation from active service. By a rating decision dated in January 1969, service connection for bilateral hearing loss was granted with a noncompensable disability evaluation assigned therewith. In January 1992, the appellant reopened his claim for entitlement to a compensable evaluation for bilateral hearing loss. Current relevant post-service medical reports of record include a February 1992 VA audiogram, as well as a July 1992 private audiogram from St. John's Medical Center, Anderson, Indiana. Results from the February 1992 VA audiogram indicated thresholds of 10, 15, 30, and 60 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 15, 15, 60, and 70 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 29 decibels, with right ear speech recognition at 92 percent, resulting in Level I hearing acuity for the right ear; the average left ear pure tone threshold was 40 decibels, with left ear speech recognition at 84 percent, resulting in Level II hearing acuity for the left ear. Bilateral sensorineural hearing loss was noted. Results from the July 1992 private audiogram indicated thresholds of 10, 20, 40, and 60 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 15, 25, 50, and 75 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 33 decibels, with right ear speech recognition at 96 percent, resulting in Level I hearing acuity for the right ear; the average left ear pure tone threshold was 41 decibels, with left ear speech recognition at 100 percent in the quiet, and 70 percent with noise , resulting in Level I or Level IV hearing acuity for the left ear, respectively. In addition, the appellant complained of occasional tinnitus. The examiner concluded with a finding of "classic noise related hearing loss," and a diagnosis of high frequency sensorineural hearing loss. The objective clinical evidence of record simply does not support a compensable evaluation 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 DC 6100, a noncompensable evaluation is assigned where hearing is at Level I for both ears, or is at Level I in one ear, and either Level II or Level IV for the other. The appellant and his representative have argued that there are minor discrepancies between the VA and private audiometric examination results, and that only the private audiogram considered noise related speech discrimination thresholds. However, under current VA regulations, a noncompensable rating results from applying either the February 1992 VA or the July 1992 private audiometric examination results to the rating criteria. 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 a compensable evaluation for a bilateral hearing loss disability. 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 assertion that his hearing has increased in severity, 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) (1994). 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 a compensable evaluation for bilateral hearing loss is denied. MICHAEL D. LYON 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.