BVA9507121 DOCKET NO. 93-07 405 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hearing loss of the left ear. 2. Entitlement to an increased (compensable) rating for hearing loss of the right ear. 3. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL The veteran and spouse ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from June 1976 to June 1979. At the hearing on appeal in April 1992, the veteran raised the issues of service connection for tinnitus, headaches, dizzy spells, and swelling of the glands underneath the right ear all as secondary to his service connected right ear disabilities. He also raised the issue of entitlement to an increased rating for otitis media of the right ear at that time. These issues were denied in an October 1992 rating decision of the regional office (RO). The veteran has not submitted a notice of disagreement or a substantive appeal for these issues, and they are not before the Board of Veterans' Appeals (Board) at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the hearing loss in his right ear is productive of such a degree of disability as to merit a compensable evaluation. He notes that he wears a hearing aid, and that he has nerve damage that cannot be repaired. In addition, the veteran contends that he developed hearing loss of the left ear during active service. He states that he was a mortar man during service, and was exposed to mortar fire. He believes that this permanently damaged the hearing in his left ear. Finally, the veteran contends that he is entitled to compensation for his multiple noncompensable service-connected 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 veteran has not submitted a well-grounded claim for service connection for hearing loss of the left ear; that the preponderance of the evidence is against the veteran's claim for entitlement to an increased rating for hearing loss of the right ear; and that the evidence supports a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection is in effect for a hearing loss of the right ear, chronic right otitis media, and status post nasal fracture with deviated septum, each assigned a noncompensable evaluation. 3. The veteran's right ear hearing acuity is at level I. 4. The veteran had hearing loss in the left ear at the 4,000 hertz level at entry into service; during service there were elevated thresholds at several levels on audiometric studies. 5. The veteran does not currently have a hearing loss disability of the left ear within the meaning of legislation governing the award of compensation benefits. 6. The evidence demonstrates that the veteran's service- connected disabilities combine to clearly interfere with normal employability. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for hearing loss of the right ear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.87, Code 6100 ( 1994). 2. The veteran has not submitted a well-grounded claim with regard to the issue of entitlement to service connection for defective hearing of the left ear. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 59 Fed. Reg. 60, 650 (1994) (to be codified at 38 C.F.R. § 3.385) 3. The requirements for a 10 percent rating for multiple noncompensable service-connected disabilities have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.324 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims for an increased rating for his hearing loss of the right ear and entitlement to a compensable evaluation under 38 C.F.R. § 3.324 are "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. I. Increased Rating The veteran contends that his hearing loss of the right ear merits a compensable evaluation. The evaluation of service- connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. The record shows that service connection was granted for hearing loss of the right ear in a July 1991 rating decision. At that time, it was noted that a July 1980 rating decision which had granted the veteran service connection for otitis media of the right ear also acknowledged the veteran's hearing loss. The July 1991 rating decision stated that service connection for right ear hearing loss had been implied in July 1980, but not expressed in the conclusion. Therefore, service connection was awarded for right ear sensorineural hearing loss, with an effective date of June 16, 1979, the date of receipt of the veteran's original claim for service connection. The disability was evaluated as noncompensably disabling, and this evaluation remains in effect. A Department of Veterans Affairs (VA) audiological evaluation conducted in August 1991 showed pure tone thresholds in the right ear of 30, 25, 30, and 45 decibels for the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second, respectively. These are the frequencies of normal conversation, and when the thresholds at these levels are averaged, as required by law, the average threshold is 33 decibels. Speech recognition ability was 96 percent correct. These results are commensurate with level I hearing, which yields a noncompensable evaluation, in accordance with the schedular criteria. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100. The veteran's argument that his hearing loss of the right ear is more disabling than currently evaluated has been considered. However, the evidence clearly weighs against the assignment of a compensable evaluation in this case. Assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). In reaching this decision, the provisions of 38 C.F.R. § 3.321 have been considered, but are not for application. II. Service Connection The veteran contends that he developed hearing loss of the left ear as a result of active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. In addition, the evidence reflects notes that current diagnoses includes sensorineural hearing loss of the left ear. If an organic disease of the nervous system such as sensorineural hearing loss become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of sensorineural hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Entitlement to service conection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed. Reg. 60, 650 (1994) (to be codified at 38 C.F.R. § 3.385); Hensley v. Brown, 5 Vet.App. 155 (1993). In order to establish entitlement to service connection, there must be evidence of disease or injury in service and a present disability which is attributable to such disease or injury. Where there is no evidence of, or allegation of, current disability associated with events in service, the claim is not well grounded. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). It is well established that the veteran has a hearing loss of the left ear; however, the evidence does not show that he has a hearing loss disability within the provision of 38 C.F.R. § 3.385. A review of the service medical records reveals that the veteran was afforded an audiological evaluation on the January 1976 entrance examination. The auditory thresholds were 20, 15, 15, and 35 decibels for the frequencies of 500, 1,000, 2,000, and 4,000 hertz for the left ear. "Hearing" was noted under the summary of defects, and the veteran was placed on physical profile "2". The service medical records show that the veteran was afforded an audiological evaluations on several occasions during service. In January 1978, it was found that he had elevated auditory thresholds at all levels in the left ear. At that time, he was also being treated for an ear infection of the right ear. The veteran was fitted with ear protection at this time. At the time of the veteran's separation from service, audiological evaluation reflected elevated auditory thresholds at all levels tested. The veteran was afforded a VA audiological evaluation in May 1980. The auditory thresholds were 20, 15, 10, 15, and 25 decibels for the frequencies of 500, 1,000, 2,000 3,000 and 4,000 hertz. Speech reception thresholds were 96 percent. A VA audiological evaluation was conducted in March 1982. The auditory thresholds were 10, 5, 15, 15, and 25 decibels at the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz for the left ear. Speech recognition ability was 98 percent correct. The veteran underwent additional VA audiological testing in November 1983. The auditory thresholds were 10, 10, 5, 20, and 30 decibels at the frequencies of 500, 1,000, 2,000, and 3,000, 4,000 hertz for the left ear. Speech recognition ability was 100 percent correct. The veteran was afforded two VA audiological evaluations in July 1986. On an evaluation conducted on July 10, the veteran had auditory thresholds of 25, 5, 20, and 35 decibels at the frequencies of 500, 1,000, 2,000, and 4,000 hertz for the left ear. Speech recognition ability was 100 percent correct. The evaluation conducted on July 28 demonstrated auditory thresholds of 15, 5, 20, and 35 decibels at these same frequencies, with speech recognition ability of 96 percent correct. The veteran was afforded a VA audiological evaluation in conjunction with his current claim in August 1991. The auditory thresholds were 25, 20, 25, 25, and 30 decibels for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz. Speech recognition ability was 98 percent correct. In light of the fact that subsequent to service the veteran has not at any time met the requirement of 38 C.F.R. § 3.385, he has not established a well-grounded claim. He has no evidence of a current hearing disability for VA compensation purposes and the claim must be dismissed. III. Compensation under 38 C.F.R. § 3.324. The veteran has argued that his service-connected disabilities affect his employability. In addition to hearing loss of the right ear, service connection is also in effect for otitis media and status post nasal fracture with septal deviation. Each of these disabilities is evaluated as noncompensable. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. At the August 1991 VA examination, the veteran reported that he had missed time from work due to his disabilities. He did not know how much time he had lost in the last 12 months. In the November 1991 notice of disagreement, he stated that his disabilities had affected his work and social life. The veteran's spouse testified that his disabilities hurt his work and his family life. T. at 18. At the time of the August 1991 VA examination, the veteran indicated that he had been employed as a mail carrier from May 1981 to the present. He stated that he had missed work due to ear surgeries conducted in 1981 and 1982 or 1983. VA treatment records from October 1991 to August 1992 indicate that the veteran was seen on seven occasions for perforation of the right eardrum, with three of the visits coming between January 10, 1992, and February 3, 1992. The veteran has set forth a reasonable basis for concluding that his service-connected disabilities interfere with his normal employability. Accordingly, a 10 percent evaluation is awarded under the provisions of 38 C.F.R. § 3.324. ORDER Entitlement to an increased (compensable) rating for hearing loss of the right ear is denied. Entitlement to service connection for hearing loss of the left ear is dismissed. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is allowed, subject to the controlling laws and regulations governing the payment of monetary awards. V. L. JORDAN 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.