Citation Nr: 0001710 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-17 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an evaluation in excess of zero percent for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from November 1965 until October 1967. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of July 1998 of the St. Paul, Minnesota Regional Office (RO) which granted a service connection for right ear hearing loss, rated noncompensably disabling, but denied service connection for left ear defective hearing. The Board notes that in the Informal Hearing Presentation of November 1999, the issue of service connection for tinnitus has been raised. However, this matter is not properly before the Board for appellate review and it is referred to the RO for additional consideration. FINDINGS OF FACT 1. The claim for service connection for left ear hearing loss is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. All relevant evidence necessary for an equitable disposition of the appellant's appeal with respect to the service-connected right ear hearing loss has been obtained. 3. The veteran has level I hearing in his right ear. CONCLUSIONS OF LAW 1. The claim for service connection for left ear hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a compensable evaluation for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.87, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service connection for left ear hearing loss. The appellant asserts that he was exposed to extensive noise in service resulting in acoustic trauma leading to left ear hearing loss for which service connection should now be granted by the Board. It is contended that if the benefit sought on appeal cannot be granted, that a remand for further development is indicated. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection for impaired hearing may be established if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). A preexisting injury of disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. § 3.306(b) (1999). The threshold question is whether the veteran has presented a well-grounded claim for service connection for left ear hearing impairment. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464 (1997); see also Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v Brown, 8 Vet. App. 563, 568 (1996) (en banc). To establish that a claim for service connection is well grounded, the veteran must satisfy three elements. First, there must be a medical diagnosis of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury. Third, there must be medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, supra. Review of the service medical record discloses that upon examination in September 1965 for induction into service, audiometry readings for the left ear were 0/0/25/35 at the 500/1000/2000/4000 Hertz frequencies, respectively. A notation of defective hearing which was considered nondisqualifying was recorded at that time for which an H2 profile was noted. The veteran himself indicated that he had ear, nose or throat trouble. Upon examination in June 1967 for separation from service, the veteran was referred to the ear, nose and throat (ENT) clinic where he was afforded an audiogram which revealed readings of 5/5/15/30 at the 500/1000/2000/4000 Hertz frequencies, respectively. An assessment of non-disqualifying neurosensory hearing loss was noted. The veteran again indicated that he had ear, nose or throat trouble. The post-service record is silent for any complaints referable to hearing loss until a claim for such was filed in April 1998. A private audiogram report, dated in October 1997, was received indicating significant left ear hearing impairment. The record reflects that a VA audiologic examination request was made on February 18, 1999. The veteran was afforded a VA audiologic examination on March 8, 1999. It was noted as audiological history that the veteran reported he had had extensive noise exposure while in service and that his currnt employment included exposure to high levels of noise from forklifts and construction equipment. Hearing loss disability for VA purposes was demonstrated pursuant to 38 C.F.R. § 3.385. In a report dictated in April 1999, a VA examiner noted that his review of the claims folder had been accomplished, and that the appellant had been noted to have had defective hearing on service entrance. It was his opinion that the etiology of the pre-service hearing loss was unclear, that there was no clearly documented exposure to acoustic trauma during service and that current hearing loss was not service- related. Analysis The Board notes that while the hearing impairment noted on service entrance examination was not shown to be a ratable disability by VA standards (See 38 C.F.R. § 4.85), it was clearly recorded that the veteran had defective hearing as determined by an audiometric evaluation at that time. The question thus becomes whether there was a permanent increase in severity of the pre-existing hearing impairment such that he now has chronic left ear hearing loss disability for which service connection may be considered. The Board observes, however, that although the appellant now indicates that left ear hearing loss increased in severity as the result of noise exposure during service, this is not substantiated by the service medical records. It is clearly demonstrated that on separation examination, his left ear hearing had not worsened, but was actually a little better than that recorded upon service pre-induction examination in September 1965. Consequently, there was still no showing of ratable hearing impairment by VA standards at the time of discharge from service. The first clinical evidence of any substantial decline in the appellant's hearing is demonstrated in a private clinic record of October 1997, more than 30 years after separation from service. The veteran must be made aware that absent a showing of any significantly diminished hearing at service discharge, there is no demonstration of a permanent increase in severity of the pre- existing disorder on account of service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. § 3.306(b) (1999). Additionally, the record contains no competent medical evidence of record which establishes a nexus relationship between the pre-existing hearing loss or noise trauma in service, and the current degree of hearing impairment. See Caluza v. Brown, 7 Vet. App. 498 (1995). 38 C.F.R. § 3.303. As a lay person who is untrained in the field of medicine, the veteran is not competent to provide a medical opinion in this regard. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The record clearly reflects that the veteran has had extensive noise exposure since service as the result of his employment in the construction trade. As well, the record was reviewed by a VA physician in April 1999 whereupon it was determined that current hearing loss disability was unrelated to service. Consequently, the record simply does not contain any competent evidence in the form of medical records or a medical opinion which in any way tends to show that left ear hearing impairment was aggravated by service. The Board must also point out in this instance that where the determinative issue involves medical causation or a medical diagnosis, competent evidence is required to make a claim "plausible" or "possible." Murphy, 1 Vet.App. at 81. The veteran himself is not shown to possess the medical expertise necessary to render an opinion as to the cause of the left ear hearing loss disability now indicated. Therefore, his statements and testimony standing alone are not sufficient to make his claim for service connection for left ear hearing loss well grounded. See Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)). Accordingly, the appellant's claim for entitlement to service connection for left ear hearing loss is found to be not well- grounded, and the appeal based thereon must be denied. See Edenfield v. Brown, 8 Vet.App. 384 (1995). As the veteran's claim is not well grounded, the VA has no further duty to assist him in developing the record to support this appeal. See Epps, supra. Moreover, the Board is not otherwise aware of the existence of any relevant evidence which, if obtained, would make the claim well grounded. See McKnight v. Gober, No. 97-7062 (Fed.Cir). Dec. 16, 1997) (per curiam). As the foregoing explains the need for competent evidence of current disability which is linked by competent evidence to service, the Board views its discussions above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the above disorder. Robinette, 8 Vet.App. at 77. 2. Increased rating for right ear hearing loss. By rating action dated in July 1998, service connection for right ear hearing loss was granted and a noncompensable evaluation was established as of the date of receipt of the claim in April 1998. The appellant asserts that his right ear hearing loss is more severely disabling than reflected by the currently assigned disability evaluation and warrants a compensable rating. The Board finds that the veteran's claim for an increased rating for right ear hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Here, the veteran's claim is well grounded because he has a service-connected disability and evidence is of record that he claims shows exacerbation of the disorder. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board finds that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The history of a disability must be considered. See 38 C.F.R. §§ 4.1, 4.2. However, where entitlement to compensation has already been established and an increase in a disability rating is at issue, as in the instant case, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Evaluations of unilateral defective hearing range from noncompensable to 10 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 1000, 2000, 3000, 4000 cycles per second. To evaluate the degree of disability from unilateral service- connected defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and the appellant does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. C.F.R.§§ 4.85, 4.87 and Part 4, Codes 6100 to 6101 (1999). The record reflects that the July 1998 rating decision appealed was the initial rating decision granting service connection for right ear hearing loss. In instances in which the veteran disagrees with the initial rating, the entire evidentiary record from the time of the veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). A private audiogram report dated in October 1997 was received indicating right ear decibel losses of approximately 50/60/60/65 at the 1000/2000/3000/4000 Hertz frequencies, respectively. The appellant was subsequently afforded a VA audiology examination in March 1999 whereupon audiometric evaluation disclosed pure tone thresholds of 45/55/55/60 at the applicable frequencies. Speech recognition scores were 92 percent in each ear. The reported average pure tone threshold in the right ear was noted to be 54 decibels. The veteran presented testimony upon personal hearing on appeal before the undersigned Member of the Board sitting at St. Paul, Minnesota, in June 1999, to the effect that his right ear hearing was so impaired that he had great difficulty hearing someone at any distance, and that this hampered him in his construction job. He related that he felt he may have been laid off in the past due to his inability to hear properly, but was not certain that this was the case. He was also of the opinion the he might have advanced quicker in certain jobs if his hearing had not been impaired. The veteran said that he was unable to hear in a crowded noisy room even with hearing aids, and that he could not hear his young grandchildren who were just learning how to talk. Analysis The evidence in this regard reflects that on the most recent VA audiometric evaluation in March 1999, the veteran was shown to have to have a right ear pure tone threshold average loss of 54 decibels in the right ear at the relevant frequencies. As noted, the speech recognition score was 92 percent. These findings correspond to level I hearing in the right ear. 38 C.F.R. § 4.85, Table VI (1999). Service connection has only been granted for the veteran's right ear hearing loss. Since he is not totally deaf in both ears, hearing loss in the nonservice connected left ear is assigned a level I rating. 38 U.S.C.A. § 1160(a)(3). Table VII of § 4.85 provides for a noncompensable evaluation for level I hearing in both ears. The Board also notes that the appellant would not be entitled to a higher rating using the private examination report of October 1997. Accordingly, the evidence shows that the current level of right ear hearing impairment has existed since the effective date of the claim and is not subject to a staged rating pursuant to Fenderson v. West. The Board points out that the veteran's contentions and testimony that his overall hearing acuity has increased is certainly credible. An appellant is credible to testify as to factual matters, such as what symptoms he is manifesting at a given time. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). However, his allegations alone do not serve to establish entitlement to a higher disability evaluation for defective hearing since the disability ratings for defective hearing are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulatory criteria contained in the rating schedule are quite specific. Applying the criteria of 38 C.F.R. § 4.85 (1999), and using Tables VI and VII, a noncompensable evaluation is warranted in the veteran's case. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the appellant with respect to the claim referred to above. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds that those sections do not provide a basis upon which to assign a higher disability evaluation as to this matter. The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability. See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this case, the record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. The Board has also considered the doctrine of benefit of the doubt as to each issue on appeal, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, a reasonable basis for a grant of the benefits sought on appeal is not identified at this time. ORDER As the claim for service connection for left ear hearing loss is not well-grounded, the appeal is denied. An increased rating for right ear hearing loss is denied. U. R. POWELL. Member, Board of Veterans' Appeals