Citation Nr: 0005633 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-41 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. 2. Entitlement to an increased (compensable) evaluation for bilateral myringitis and nonsuppurative otitis media. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from October 1951 to July 1953. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1996 rating decision of the , Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued the noncompensable evaluations for bilateral hearing loss and bilateral myringitis and nonsuppurative otitis media. The Board remanded these claim in September 1998. The requested development has been accomplished, and the case has been returned to the Board for further appellate review. The Board notes that in the January 2000 informal hearing presentation, the appellant's representative included the issue of an increased evaluation for postoperative hemorrhoidectomy as being on appeal. However, in the September 1998 decision, the Board denied an increased evaluation for postoperative hemorrhoidectomy. Thus, that issue is no longer on appeal and will not be discussed. Review of the record reveals that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (the Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDINGS OF FACT 1. Bilateral hearing loss is currently manifested by an average pure tone threshold of 35 decibels on the right and 33 decibels on the left. Discrimination ability is 94 percent correct on the right and 88 percent correct on the left. 2. Bilateral myringitis and nonsuppurative otitis media are rated for hearing impairment. CONCLUSIONS OF LAW 1. Bilateral hearing loss is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Part 4, Diagnostic Code 6100 (1999). 2. Bilateral myringitis and nonsuppurative otitis media is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Part 4, Diagnostic Codes 6100, 6102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that his hearing loss and bilateral myringitis and nonsuppurative otitis media warrant compensable evaluations. The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims for increased evaluations for bilateral hearing loss and bilateral myringitis and nonsuppurative otitis media are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disabilities have worsened raises plausible claims. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on these issues have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). Service connection for myringitis was granted by means of a March 1954 Board decision. The RO effectuated the grant of service connection for bilateral myringitis and nonsuppurative otitis media in a March 1954 rating decision. Following an examination, the RO assigned a noncompensable evaluation in a September 1954 rating decision. In that rating decision, the RO also granted service connection for bilateral partial deafness and assigned a noncompensable evaluation. The RO has reclassified the service-connected bilateral partial deafness as bilateral hearing loss. Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1999), where entitlement to compensation has already been established and an increase in disability is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appellant underwent a VA audiological evaluation in February 1995. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 35 40 LEFT 10 30 35 40 Speech recognition was not tested. The appellant underwent a VA audiological evaluation in October 1995. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 35 45 LEFT 15 35 35 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. The VA examiner entered a diagnosis of mild sensorineural hearing loss bilaterally. The appellant underwent a VA audiological evaluation in February 1996. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 35 40 45 LEFT 10 30 35 45 Speech recognition was not tested. The appellant had a hearing before this Board Member in June 1998. He stated that he had been wearing hearing aids for seven to eight years. The appellant testified that his hearing was getting worse. He stated that when more than one person would talk, it made it more difficult for him to understand. As to his inner ear, the appellant stated that it would itch and was uncomfortable. He reported having swelling in his inner ear and that he would experience dizziness from time to time. The appellant underwent a VA audiological evaluation in August 1998. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 35 45 LEFT 10 30 30 35 The VA examiner stated that there had been no decrease in thresholds since the October 1995 audiological evaluation. Speech recognition was not tested. The appellant underwent a VA audiological evaluation in January 1999. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 45 45 LEFT 15 35 40 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. The VA examiner stated that the results revealed slight to moderate bilateral sensorineural hearing loss and that the speech reception thresholds were in agreement with pure tone responses bilaterally. The VA examiner stated that it was his impression that the appellant would experience difficulty understanding conversation without amplification in the presence of competing background noise. He stated, however, that with amplification, he should notice a significant improvement in his hearing. Service-connected disabilities are rated in accordance with a schedule of ratings that are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The Board must note that the regulations which address evaluations for impairment of auditory acuity changed effective June 1999. When a regulation changes after a claim has been filed but before the appeal process has been completed (which would apply here), the version most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, here, the changes made were not substantive in regard to the facts in this case, and thus neither is more favorable to the appellant's claim. Under Diagnostic Code 6201, chronic nonsuppurative otitis media with effusion is to be evaluated under hearing impairment. 38 C.F.R. Part 4, Diagnostic Code 6201 (1999). Thus, although the appellant has reported dizziness and itchiness in his inner ears, his service-connected bilateral myringitis and nonsuppurative otitis media is to be evaluated under defective hearing. See id. Evaluations of 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 cycles per second. VA Regulations - Title 38 Code of Federal Regulations Schedule for Rating Disabilities - Transmittal Sheet 23 (October 22, 1987). See 52 Fed. Reg. 44117-44122 November 18, 1987, and correction 52 Fed. Reg. 40439 December 7, 1987. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and Part 4, Diagnostic Code 6100 (1999). The Court has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The October 1995 VA audiological evaluation results revealed a numeric score of I in the right ear and I in the left ear. The January 1999 VA audiological evaluation results revealed a numeric score of I in the right ear and II in the left ear. The Board has not used the results from the other VA audiological evaluations, as speech recognition was not tested and thus a numeric score can not be obtained from those evaluations. Regardless, the pure tone threshold results in February 1995, February, 1996, and August 1998 are almost identical to the results found in the October 1995 and January 1999 audiological evaluations. Both the October 1995 and January 1999 audiological evaluation results revealed no more than moderate sensorineural hearing loss, which is productive of a noncompensable disability evaluation. 38 C.F.R. Part 4, Diagnostic Code 6100 (1999). Because bilateral myringitis and nonsuppurative otitis media is evaluated under Diagnostic Code 6100, a compensable evaluation for such is not warranted as well. See 38 C.F.R. Part 4, Diagnostic Code 6201. Although the appellant has asserted and testified that his bilateral hearing loss and bilateral myringitis and nonsuppurative otitis media are worse than the current noncompensable evaluations, the Board finds that the preponderance of the evidence is against the appellant's claim for increased evaluations for the service-connected disabilities. The results of the audiological evaluations do not warrant an evaluation in excess of 0 percent for either bilateral hearing loss or bilateral myringitis and nonsuppurative otitis media. Therefore, an increased evaluation for either disability is not warranted. 38 U.S.C.A. § 5107; Lendenmann, 3 Vet. App. at 349. ORDER An increased evaluation for bilateral hearing loss is denied. An increased evaluation for bilateral myringitis and nonsuppurative otitis media is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals