BVA9507290 DOCKET NO. 93-13 829 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife INTRODUCTION The veteran had active service from September 1967 to September 1969. This matter cones before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1991 by the Department of Veterans Affairs (VA) Regional Office (RO), at White River Junction, Vermont, that denied service connection for right ear hearing loss, granted service connection for left ear hearing loss, and assigned a zero percent rating for the left ear hearing loss. The veteran had a hearing before a Hearing Officer at the RO in January 1993 and, in a decision of the same month, the hearing officer determined that service connection was warranted for right ear hearing loss. By a rating decision of February 1993, the RO granted service connection for right ear hearing loss and assigned a zero percent rating for the bilateral hearing disability. The veteran has continued his appeal for a compensable evaluation. It is noted that the veteran has raised the additional issue of service connection for tinnitus. That issue is referred to the RO for adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in not granting a compensable rating for his bilateral hearing loss, that his disability is more severe than indicated by hearing tests, that he has particular difficulty hearing when there is background noise and in a variety of circumstances, and that speech discrimination tests are an invalid measure of hearing disability. 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 a preponderance of the evidence is against the veteran's claim for a compensable rating for bilateral hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran has level I hearing in the right ear and level II hearing in the left ear. 3. The veteran's service-connected bilateral hearing loss does not present an unusual disability picture with such related factors as need for frequent hospitalization or marked interference with employment. CONCLUSION OF LAW The requirements for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155; 5107(a) (West 1991); 38 C.F.R. §§ 4.85, 4.87, Part 4, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds the veteran's claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) and that the VA has satisfied its duty to assist the veteran in development of his claim. The 1945 Schedule for Rating disabilities will be used for evaluating the degree of disability in claims for disability compensation. The provisions of the rating schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as practicably can be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). The method for rating hearing loss disability is established by federal regulation and is codified at 38 C.F.R. Part 4. Consequently, the veteran's contention that speech discrimination tests are invalid measures of hearing disability is noted, but the regulatory criteria for rating hearing loss are clear and must be utilized. Disability ratings for hearing loss are determined by considering both speech recognition ability and pure tone thresholds in combination, as indicated below. Evaluations of bilateral hearing loss range from zero percent 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 puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 hertz as a result of VA regional office or authorized audiology clinic examinations. To evaluate the degree of disability from bilateral service connected hearing loss, the revised 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. § 4.84 and Part 4, Diagnostic Codes 6100 to 6110. (1994). The evidence of record includes the report of several private audiology evaluations, the most recent of which was in 1990. At that time the findings were similar to those demonstrated on subsequent VA evaluation in July 1991. At the time of the 1990 private studies, the audiologist reported that the veteran had very good speech discrimination scores in both ears, that his hearing had gotten slightly worse in the right ear over the last five years, and that there had been no significant change in the left ear. When the veteran was given a VA audiological evaluation in July 1991, he had an average puretone threshold of 43 decibels in the right ear and 56 decibels in the left ear at 1,000, 2,000, 3,000 and 4,000 hertz. He had speech recognition of 96 percent in the right ear and 84 percent in the left ear. These results constitute level I hearing in the right ear and level II hearing in the left, warranting a zero percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.87, Tables VI and VII. There is no evidence in this case that the veteran's hearing loss presents an unusual disability picture with such related factors as frequent periods of hospitalization or marked interference with employment as is required for an increased rating on an extra-schedular basis. 38 C.F.R. § 3.321(b0(1). In reaching the decision in this case, the testimony of the veteran and his spouse has been considered. That testimony was primarily in regard to the issue of service connection for right ear hearing loss which was favorably resolved before the case was forwarded to the board. That part of the testimony explaining the hearing difficulties the veteran experiences does not afford a basis for an increased rating in view of the objectively documented degree of hearing loss. ORDER An increased (compensable) rating for bilateral hearing loss is denied. JANE E. SHARP 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.