BVA9502803 DOCKET NO. 93-12 932 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from November 1984 to March 1992. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1992 rating decision of the Columbia, South Carolina, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which in part, granted service connection for bilateral hearing loss, and assigned a noncompensable evaluation therewith. The Board's decision is limited to the issue developed for appellate review. It is apparent from the 1992 personal hearing transcript that the appellant disagrees with the RO's proposal to recoup his adjustment pay upon separation from service. Appropriate action should be taken in response thereto. In addition, it is unclear from the record whether the appellant intends to raise a claim for service connection for tinnitus, otitis media and/or a sinus disability secondary to his service- connected bilateral hearing loss. If so, the appellant should contact the RO, and the RO should then take appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to a compensable evaluation for bilateral hearing loss. He argues that he has difficulty hearing conversational speech, as well as hearing over the telephone and in situations with background noise and that it interferes with his employment. 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. Clinical studies reveal level I hearing in both ears. 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 1984, as well as a May 1992 VA audiogram. 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). 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 high frequency sensorineural hearing loss during the appellant's active service. By a rating decision dated in October 1992, service connection for bilateral hearing loss was granted with a noncompensable disability evaluation assigned therewith. A timely notice of disagreement with such decision was received in January 1993. Current post-service medical reports of record include a May 1992 VA examination and audiogram. Results from that audiogram indicated thresholds of 5, 10, 55, and 70 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 5, 10, 15, and 70 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 35 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 25 decibels, with left ear speech recognition at 96 percent, resulting in Level I hearing acuity for the left ear. An abnormal reflex pattern was also indicated. During such examination, the appellant complained of intermittent tinnitus and sensitivity to loud noises. The examiner concluded that the appellant suffered from a moderate to severe sensorineural hearing loss. During a February 1993 personal hearing, the appellant testified that he currently suffered from bilateral hearing loss, especially in his right ear. He further testified that he has difficulty understanding normal conversational speech, particularly high pitched voices and in situations with background noises, as well as hearing over the telephone. In addition, he testified that he suffered an ear infection approximately two years earlier, and had suffered from a ringing in his ears for a number of years. 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. Under current regulations, a noncompensable rating results from the most current audiometric examination results, and there is no competent clinical evidence demonstrating otherwise. 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 such as employment or frequent hospitalizations attributable to the appellant's bilateral hearing loss. The Board has considered the appellant's testimony that he has difficulty hearing conversational speech, as well as over the telephone, 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 and there has been no evidence submitted to the contrary. 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.