BVA9504942 DOCKET NO. 90-22 658 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for bilateral defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from March 1958 until June 1962. This appeal arises from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The case originally came before the Board of Veterans' Appeals (Board) on the issues of entitlement to service connection for tinnitus and left ear defective hearing and entitlement to an increased rating for right ear defective hearing. In a November 1990 decision, the Board concluded that, based on rating actions and a Board decision in 1962, service connection was already in effect for bilateral defective hearing, and construed the issue as entitlement to an increased rating for bilateral defective hearing. The case was then remanded to the Seattle, Washington Regional Office (RO) for initial consideration of the issue of entitlement to an increased rating for bilateral defective hearing. Subsequently, the RO continued to hold that service connection for left ear defective hearing was not warranted. Accordingly, to formalize the recharacterization of the issues, a July 1991 Board decision granted service connection for left ear defective hearing and tinnitus. The issues of the proper evaluation for the bilateral defective hearing and tinnitus were then remanded to the RO for further action. In a July 1991 rating action, a noncompensable rating was awarded for the bilateral hearing loss and a ten percent rating was awarded for the tinnitus. A supplemental statement of the case, limited to the issue of entitlement to an increased rating for bilateral defective hearing, was furnished the veteran in February 1992. The veteran continued to voice disagreement with the RO action in a statement in support of claim received in February 1992. The case was again received at the Board in April 1992, and remanded to the RO in July 1992 to secure records of the most recent VA examination. In an August 1992 rating action, a compensable evaluation was again denied for bilateral defective hearing. A supplemental statement of the case was issued in September 1992. In a letter received in October 1992, the veteran argued that the rating for the tinnitus should be greater than 10 percent. A supplemental statement of the case issued in March 1993 addressed the issues of an increased rating for tinnitus and an increased rating for bilateral defective hearing. The case was again received at the Board in July 1993, and remanded to the RO again in January 1994 for further audiometric examination. The development requested by the Board is now complete and the case is ready for further consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased evaluation for tinnitus and bilateral defective hearing are appropriate in that the various manifestations of these disabilities are more severe than currently evaluated and productive of a greater degree of impairment than is reflected by the evaluations currently assigned. 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 claim for increased evaluations for tinnitus and bilateral defective hearing. FINDINGS OF FACT 1. The veteran's tinnitus does not produce marked interference with employment or result in frequent periods of hospitalization. 2. The veteran has level II hearing in the right ear and level I hearing in the left ear. CONCLUSIONS OF LAW 1. An evaluation in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), and Part 4 Diagnostic Code 6260 (1994). 2. A compensable evaluation for bilateral defective hearing is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.85 and Part 4, Diagnostic Code 6100(1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. Part 4 (1994). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided 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. 38 C.F.R. § 3.321(b) (1994). Persistent tinnitus as a symptom of head injury, concussion or acoustic trauma warrants a 10 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 6260 (1994). A VA examination in August 1962 reveals that the veteran had intermittent tinnitus. He stated that he was exposed to aircraft engine noises as a guard near the flight line of jet aircraft. On a VA audiological evaluation in August 1989 he reported constant tinnitus. In July 1991 he was granted service connection for tinnitus and awarded a 10 percent evaluation. In November 1991, on a VA audiological evaluation, he reported constant tinnitus in both ears noted as a "ring/roar". In December 1991, on VA outpatient treatment, constant bilateral tinnitus was recorded. A report of a visit to a VA Audiology Clinic in June 1992 notes vertigo in the morning and a feeling of lightheadedness that persists, but it did not alter his tinnitus, which remained constant. A February 1994 VA audiological evaluation contained the following responses to questions about the veteran's tinnitus. The tinnitus began several years before. It was constant. The severity and effect on his daily life was moderate. It was high pitched and was a ring/roar. The tinnitus was noted as bilateral and constant. The veteran is currently receiving the maximum schedular evaluation for tinnitus. To receive a higher evaluation he must meet the requirements for an extraschedular evaluation. On a VA examination in November 1991 the veteran wrote that he had lost no days from work in the last year. In July 1989, on a VA examination, he wrote he had lost 4 days from work. There is no indication in the record that the veteran has been hospitalized for treatment of his tinnitus. In a letter received in October 1992 the veteran stated that there is more of a problem with his tinnitus. He said it fluctuates and sometimes greatly effects his hearing. The 10 percent rating currently in effect is the maximum schedular evaluation for tinnitus. A higher rating may be properly assigned, where warranted, on an extraschedular basis. The veteran has occupational experience as a salesman, principally in retail sales. In November 1991, he reported that he lost no time from work in the past year. The evidence does not present such an exceptional or unusual disability picture as to warrant a higher extraschedular evaluation. No marked interference with employment has been demonstrated. The service-connected tinnitus has not required any hospitalization, much less frequent hospitalization. An extraschedular evaluation is not appropriate in this case. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of 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. To evaluate the degree of disability for bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels, designated form level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and Part 4, Diagnostic Codes 6100-6110(1994). The VA audiometric examination in August 1989 and the private audiometric examination in June 1990 are not currently contemporaneous examinations. Caffery v. Brown, 6 Vet.App. 377 (1994). Additionally, the June 1990 private examination was not administered pursuant to VA standards. As such, we have not relied on these examinations. At the time of the January 1994 remand, we also described the problems we encountered with the November 1991 and June 1992 VA audiometric examinations. The audiometric evaluation of June 1992 was not certified by the Chief of Audiometry or his representative. Based on the outpatient treatment note of the same day as the audiometric evaluation, it appears as if this evaluation was undertaken for differential diagnostic purposes, and not for compensation purposes. Also, in comparing the November 1991 and June 1992 audiometric testing we noted that speech reception thresholds on the right averaged 63 decibels in November 1991 and 62 decibels in June 1992. On the left, speech reception thresholds averaged 54 decibels in November 1991 and 51 decibels in June 1992. These variances are minimal. However, there was a much greater disparity in discrimination ability on the two examinations. On the right side, discrimination ability was 94 percent correct in November 1991 and only 76 percent correct in June 1992. On the other hand, discrimination ability was only 80 percent correct on the left side in November 1991, and had improved to 92 percent correct in June 1992. These conflicts must be resolved. A review of 38 C.F.R. § 4.85 (1993) indicates that the veteran's hearing acuity would be evaluated as level II on the right and level IV on the left in November 1991, and level IV on the right and level I on the left in June 1992. Hearing acuity evaluated as level IV in each ear would be properly rated as 10 percent disabling. To resolve the conflict, and to insure that we had available for review an accurate picture of the veteran's hearing acuity, we remanded the case in January 1994 for a further VA audiometric examination. On the VA authorized audiological evaluation in February 1994, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 85 90 LEFT 20 30 80 85 The average pure tone threshold on the right was 63 decibels and the average pure tone threshold on the left was 56 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 in the left ear. Such audiometric findings reflect level II hearing in the right ear and level I hearing in the left ear, and warrant a noncompensable evaluation. The service-connected bilateral defective hearing has not resulted in frequent periods of hospitalization or marked interference with employment. As such, a higher rating on an extraschedular basis is not in order. ORDER An increased evaluation for tinnitus is denied. An increased (compensable) evaluation for bilateral defective hearing is denied. BRUCE E. HYMAN 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.