BVA9500295 DOCKET NO. 93-07 911 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for meningitis. 2. Entitlement to a compensable disability evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. D. Walker, Associate Counsel INTRODUCTION The veteran had active service from January 1976 to August 1976. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the service-connected hearing loss in his left ear should be evaluated higher than the current zero percent. The veteran also contends that he contracted meningitis while in active service. The veteran's representative asks that the case file be remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development and/or a special rating examination. 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 for an increased evaluation for hearing loss in the left ear and for service connection for meningitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The audiometric testing performed in August 1976 when the veteran separated from active service stated that the average pure tone thresholds in the left ear for the frequencies 1000, 2000, 3000, and 4000 Hertz was 23. Speech discrimination scores were not provided. 3. The additional hearing loss in the left ear that occurred subsequent to the veteran's separation from active service is due to an intercurrent disease or injury and is unrelated to service. 4. It has not been shown that the veteran had meningitis during or subsequent to service. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable disability evaluation for hearing loss in the left ear have not been met. 38 U.S.C.A. §§ 1131, 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.87, Diagnostic Code 6100. 2. Meningitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. In reaching its determination, the Board considered the veteran's service medical records, reports of VA examinations and treatment, medical reports from private sources submitted by the veteran, and the veteran's written statements. Although the veteran's representative requests that the case file be remanded to the RO so that the veteran can undergo a specialist examination, the Board concludes that an additional examination is not required because a current examination would not be relevant in determining the degree of left ear hearing loss. In addition, all pertinent records from VA medical facilities have been requested by the RO, with no indication that all existing records were not submitted to the RO. Furthermore, all of the medical evidence of record and the response from the pertinent VA medical facility indicates that the veteran did not have a period of hospitalization in a VA facility in 1977. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 1991). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (1993). Service connection may be granted for any disease or injury diagnosed after discharge, when all of the evidence establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (1993). The determination of whether the veteran has a ratable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss shall be considered service connected when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. Department of Veterans Affairs, 38 C.F.R. Part 3, Disability Due to Impaired Hearing, 59 Fed. Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). Where a veteran served for 90 days in active service, and epidemic cerebrospinal meningitis develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. See 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. § 1113 (West 1991). Determinations regarding service connection are to be based on review of the entire evidence of record. See 38 C.F.R. § 3.303(a) (1993); Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Disability ratings are based on the average impairment of earning capacity that is due to disability from disease or injury that results from military service. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). Compensation is not payable if the disability is not the result of personal injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1131 (West 1991); see also Leopoldo v. Brown, 4 Vet.App. 216, 219 (1993). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from level I for essentially normal hearing acuity through level XI for profound deafness. See 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110. In situations where service connection has been granted only for defective hearing involving one ear, the hearing acuity of the non service-connected ear is considered to be normal. 38 C.F.R. §§ 3.383, 4.14 (1993). II. Entitlement to Service Connection for Meningitis The veteran contends that he contracted meningitis while in active service. The veteran's service medical records are silent for any finding or treatment of meningitis. The VA treatment records and private medical records contain no tests or clinical findings supporting a diagnosis of meningitis, nor do the medical records state that the veteran had meningitis. The VA treatment records dated in March 1978 contain an opinion that the veteran probably had an infection of the central nervous system in August 1977 that caused his hearing loss. There is no reference in the medical records to reported symptoms of meningitis or an infection of the central nervous system prior to August 1977. A review of the evidence of record demonstrates that there is no objective medical evidence establishing that the veteran had meningitis and there is no evidence linking the symptoms that the veteran reportedly had in August 1977 with his period of active service. Therefore, there is no basis for a grant of service connection. III. Entitlement to a Compensable Evaluation for Hearing Loss, Left Ear The veteran contends that he is entitled to a compensable disability evaluation for the hearing loss in his left ear. A noncompensable evaluation is assigned for defective hearing if, based on average puretone decibel loss alone, the average puretone decibel loss in one ear is 0-41 decibels (level I) and, in the other ear, hearing is normal or the hearing loss in the other ear is not service-connected. See 38 C.F.R. § 4.85, Tables VIa and VII, Diagnostic Code 6100 (1993). In order to support a compensable evaluation, the average puretone decibel loss that is attributable to the service-connected disease or injury must be 97 decibels or higher. Id. In a rating determination issued in October 1991, the veteran was granted service connection for hearing loss in his left ear at a noncompensable level under Diagnostic Code 6100. This determination was based on the veteran having had normal hearing on entry into active service and a 40 decibel hearing loss at 4000 Hertz on separation from active service. The veteran's audiometric examination on entry into service, in puretone thresholds, was as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 5 15 xxxx 35 As previously stated, the service medical records show that in March 1976 the veteran reported having an earache and loss of hearing in his left ear. He was given Drixoral, told to return to the clinic if needed, and returned to duty. The service medical records contain no further reference to an ear or hearing problem, with the exception of the statement made by the veteran at separation that he had incurred a hearing loss. On separation in August 1976, the audiometric testing revealed the following, stated in puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 25 5 20 25 40 Speech audiometry scores were not available. The average puretone decibel loss is 23. According to 38 C.F.R. § 4.85, Table VIa, average puretone decibel loss between zero and 41 decibels would put the impairment at Level I for the left ear. Because the hearing loss in the right ear is not service- connected, for evaluation purposes hearing in that ear is assumed to be normal, or at Level I. By applying Level I for the left ear and Level I for the right ear to 38 C.F.R. § 4.85, Table VII, a noncompensable evaluation under Diagnostic Code 6100 is appropriate for the left ear hearing loss on separation from active service. On the authorized audiological evaluation in August 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 115 105+ 105+ 105+ 105+ Speech audiometry could not be tested. Although the veteran currently has a total hearing loss in the left ear, the hearing loss that occurred subsequent to the veteran's separation from active service was due to an intercurrent disease and cannot be taken into consideration when evaluating the degree of disability attributable to the service-connected hearing loss. 38 C.F.R. § 4.14 (1993). Therefore, the evaluation of the veteran's service-connected left ear hearing loss remains noncompensable, the level it was at before the post-service intercurrent disease caused further decline in hearing ability. The veteran's current hearing disability is not the result of an injury or disease contracted in the line of duty because the evidence establishes that the current hearing loss is the result of the acute illness that the veteran had in August 1977. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. See 38 C.F.R. § 4.7 (1993). There has been no marked interference with employment or frequent hospitalizations due exclusively to the service-connected disability to warrant an extra-schedular rating. See 38 C.F.R. § 3.321(b) (1993). The noncompensable rating that is based on the amount of hearing loss that the veteran incurred during active service is proper. ORDER The veteran's claim for service connection for meningitis is denied. The veteran's claim for an increased evaluation for hearing loss of the left ear is denied. ______________________________ WILLIAM J. REDDY 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.