BVA9503823 DOCKET NO. 92-55 629 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for bilateral hearing loss, with otosclerosis, status post stapedectomy, left ear, evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from February 1956 to June 1972. This appeal arose from a rating decision in November 1990 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In February 1993 the Board of Veterans' Appeals (Board) remanded this case to the RO for additional evidentiary development. The case was returned to the Board in November 1993. The veteran's representative presented additional argument in support of the appeal in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the severity of his bilateral hearing loss warrants increased compensation. He states that his hearing impairment has adversely affected his employment opportunities. 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 is against the veteran's claim. FINDINGS OF FACT 1. Auditory acuity in the right ear receives a numeric designation of V. 2. Auditory acuity in the left ear receives a numeric designation of XI. CONCLUSION OF LAW The schedular and extraschedular criteria for an evaluation in excess of 40 percent for bilateral hearing loss, with otosclerosis, status post stapedectomy, left, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.85 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. 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(a). Service medical records disclose that in the early 1960's the veteran developed bilateral hearing loss. In November 1963 he underwent a left stapedectomy. During hospitalization from April to May 1972, bilateral otosclerosis and complete deafness in the left ear were found. At a VA audiological examination in September 1972 the veteran had no usable hearing in the left ear. He had a severe conductive hearing loss in the right ear. He was wearing a hearing aid behind his right ear. In June 1990 the veteran asserted a claim of entitlement to a disability rating greater than 40 percent for bilateral hearing loss. In his substantive appeal, received at the RO in August 1991, he stated that he had two Master's degrees and 10 years of teaching experience. He had not had a job in the teaching field since 1973. He had applied for teaching positions, but had not been hired. He believed that, if he had normal hearing, he would have been hired. While this case was in remand status, the veteran underwent two VA audiological examinations. At an examination in November 1991, the pure tone threshold average in the right ear was 83 decibels, with speech discrimination ability of 80 percent; the pure tone threshold average in the left ear was 105 decibels, with no speech discrimination ability. At a VA audiological examination in May 1993 the pure tone threshold average in the left ear was the same as in 1991; the pure tone threshold average in the right ear was 85 decibels, with speech discrimination ability of 80 percent. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent are based on organic impairment of hearing acuity, as measured by pure tone audiometry testing in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second and controlled speech discrimination tests. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes 11 auditory acuity levels, designated from Level I, for essentially normal acuity through Level XI. 38 C.F.R. § 4.85 and Part 4, Code 6300 to 6110; effective December 18, 1987. In the veteran's case, a 40 percent rating is assigned for bilateral defective hearing, as, at the most recent VA audiological examination, the pure tone threshold average in one ear was 85 decibels, speech recognition ability of 80 percent correct (Level V), and, in the other ear, the pure tone threshold average was 105 decibels, speech recognition ability of zero percent correct (Level XI). 38 C.F.R. § 4.85 and Code 6104. This case does not present an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment, so as to render impractical the application of regular schedular standards. In this connection, the Board finds that the veteran's belief that he may have been rejected as an applicant for teaching positions because of his impaired hearing, without the submission of any evidence to substantiate or verify his belief, is insufficient to prove that he has been experiencing the "marked interference with employment" contemplated by the regulation. An extraschedular evaluation is thus not in order. 38 C.F.R. § 3.321(b)(1). ORDER An increased evaluation for bilateral hearing loss, with otosclerosis, status post stapedectomy, left ear, is denied. BRUCE KANNEE 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.