Citation Nr: 0004320 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 93-04 069 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to a compensable evaluation for right ear hearing loss. 2. Entitlement to an evaluation in excess of 10 percent for tinnitus. 3. Entitlement to an evaluation in excess of 10 percent for a right heel condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to August 1970, May 1975 to May 1978, and October 1979 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1992 RO decision which, in pertinent part, granted service connection and noncompensable ratings for right ear hearing loss, tinnitus, and calcaneal spurs of the right heel; the veteran appealed for compensable ratings. In May 1996, the Board remanded these issues to the RO for further development. In July 1997, the RO granted increased evaluations to 10 percent for tinnitus and for calcaneal spurs of the right heel. The case was returned to the Board in November 1999. FINDINGS OF FACT 1. The veteran has level I hearing in his right ear. Service connection is in effect for hearing loss only in that ear. 2. The veteran's tinnitus is manifested by complaints of constant ringing in his ears. 3. The veteran's right calcaneal heel spurs produce disability which does not exceed that of moderate residuals of a foot injury. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for right ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1998 and 1999). 2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.87a, Code 6260 (1998), § 4.87, Code 6260 (1999). 3. The criteria for a rating in excess of 10 percent for a right heel disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Army from January 1968 to August 1970, May 1975 to May 1978, and October 1979 to October 1991. A review of his service medical records shows that on entrance examination in January 1968, his feet and hearing were listed as clinically normal. An April 1990 physical examination notes sensorineural high frequency hearing loss. In March 1991, the veteran was seen complaining of pain in his right heel. X-rays revealed a right heel spur. On separation examination in September 1991, audiometric testing revealed pure tone thresholds in the right ear of 0, 15, 15, and 55 decibels at 1000, 2000, 3000 and 4000 hertz, respectively. On the accompanying report of medical history the veteran related a history of foot trouble and hearing loss. On VA audiology examination in March 1992, the veteran reported military noise exposure and said that his tympanic membrane was ruptured during service. He said that tinnitus began during a sinus infection. He indicated that he had difficulty understanding speech with background noise. Audiometric testing revealed pure tone thresholds in the right ear of 5, 15, 20, and 60 decibels at 1000, 2000, 3000, and 4000 hertz, respectively. The average pure tone threshold for the right ear was 25 percent. The speech recognition score in the right ear was 96 percent. The veteran reported bilateral periodic tinnitus which was mild to moderate in severity. The examiner noted normal hearing sensitivity of the right ear through 3000 hertz with moderate to moderately severe sensorineural hearing loss at 4000 hertz. The left ear revealed normal hearing sensitively across test frequencies. A March 1992 VA general medical examination noted that the right heel was clinically normal, but X-rays showed small calcaneal spurs of the right heel. An April 1992 Army Reserve sick slip notes that the veteran had a bone spur in the right heel that had worsened since February 1991. His physical profile (PULHES) included L-3 for the lower extremity. He was physically restricted from running or jumping. A private medical record dated in June 1992 reveals that the veteran related that he had a painful bone spur in the right heel. No history of injury was reported. He noted pain on walking or running but when he minimized his activities he was symptom free. On examination, the right foot was essentially nontender. The veteran demonstrated full range of motion, with no swelling or ecchymosis. The examiner noted that he had a small bone spur at the inferior aspect of the os calcis that was mild. A September 1992 VA treatment record shows that the veteran was seen with complaints of periodic right heel pain. He said that pain worsened with extended standing. Some later private medical records note the veteran had heel spurs. On VA audiology examination in September 1995, he had pure tone thresholds in the right ear of 10, 15, 25, and 55 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for an average of 26 decibels. The speech recognition score in the right ear was 98 percent. The examiner noted that hearing sensitivity in the left ear was within normal limits. Hearing sensitivity in the right ear ranged from normal hearing to a severe hearing loss in the high frequency area. It was noted that he was not a hearing aid candidate. A tinnitus masker was not recommended. The veteran was referred to a VA ears, nose, throat (ENT) clinic in December 1995 for complaints of persistent bilateral tinnitus with associated dizziness. He also complained of frequent earaches which were dull and throbbing in nature. It was noted that the veteran had asymmetric sensorineural hearing loss in the right ear. The examiner indicated that the tympanic membranes were clear and the external auditory canal was without lesions. The diagnostic assessment was tinnitus with asymmetric sensorineural hearing loss. An auditory brain response test conducted later that month was abnormal. In a February 1996 statement, the veteran indicated that his hearing loss affected him in social and working environments. He said that an explosion in 1979 blew a hole in his eardrum and caused ringing in his right ear. He stated that he had difficulty taking the Army Reserve physical fitness test due to his right calcaneal heel spur. In March 1996, the veteran was seen at a VA ENT clinic for follow-up of non-pulsatile tinnitus and occasional lack of equilibrium. The examiner noted that the internal auditory canal was within normal limits. Tympanic membranes were clear bilaterally without inflammation. The diagnostic assessment was tinnitus, most likely the result of trauma induced high frequency hearing loss. Army Reserve audiometric testing conducted in September 1996 revealed pure tone thresholds in the right ear of 5, 20, 25, and 60 decibels at 1000, 2000, 3000, and 4000 hertz, respectively. Speech discrimination was not reported. On VA podiatry examination in December 1996, the veteran complained of continued right heel pain. He said that surgical correction for his condition was recommended previously; however, he refused to have the procedure. The examiner noted tenderness to palpation of the medial calcaneal heel. No central heel pain, edema, or erythema was observed. The veteran demonstrated limited range of motion of the subtalar and mid-tarsal joints. X-rays revealed mild calcaneal spurs. The examiner noted that the veteran could be offered conservative means of treatment for his condition including steroid injections, orthotic devices, and physical therapy to alleviate pain. The diagnostic assessment was plantar fasciitis. On VA ENT examination in December 1996, it was noted that the veteran had no significant change in his hearing. The veteran related that he had to ask people to repeat speech more often. He reported he had bilateral tinnitus, and that the right ear tinnitus was higher pitched. The diagnostic assessment was tinnitus secondary to high frequency sensorineural hearing loss. The audiology consultation report reflects a diagnostic assessment of unilateral mild to severe high frequency sensorineural right hearing loss. Middle ear function, speech discrimination thresholds, and word discrimination scores were normal. Bilateral tinnitus maskers were recommended. Audiometric testing conducted overseas in January 1997 reflects pure tone thresholds in the right ear of 5, 25, 30, and 65 decibels at 1000, 2000, 3000, and 4000 hertz, respectively. The average pure tone threshold for the right ear was 31 percent. (These results were certified by a VA chief of audiology and speech pathology in October 1998.) The speech recognition score was 96 percent for the right ear. II. Analysis The veteran's claims for higher ratings for right ear hearing loss, tinnitus, and a right heel condition are well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claims. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A. Right Ear Hearing Loss Evaluations of unilateral defective hearing range from noncompensable to 10 percent. This is 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 of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. In situations where service connection has been granted for defective hearing involving only one ear and the veteran does not have total deafness in both ears, the hearing acuity of the non-service- connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assigned where the hearing in the service-connected ear is at level X or XI. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Codes 6100- 6101. The Board notes that regulations concerning the evaluation of hearing impairment were revised effective June 10, 1999, during the pendency of the veteran's appeal. However, there were no material changes which would affect the present case. See 38 C.F.R. § 4.85 (1998 and 1999). The results from the most recent VA audiometric study in January 1997 (average decibel threshold of 31 for the four frequencies, and 96 percent correct speech discrimination) correlate to auditory acuity numeric designation I in the right ear. See 38 C.F.R. § 4.85, Table VI. Hearing in the non-service-connected left ear is considered normal for rating purposes and numeric designation I is assigned for that ear. These numeric designations in combination correspond to a noncompensable rating for right ear hearing loss. See 38 C.F.R. § 4.85, Table VII, Code 6100. The results of the 1992 and 1995 VA audiological evaluations would also correspond to noncompensable evaluations under 38 C.F.R. § 4.85, Code 6100. The assignment of a disability rating for hearing impairment is derived from a mechanical application of the rating schedule to the specific numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the instant case, the application of the rating schedule to the test results clearly demonstrates that a compensable schedular rating is not warranted in this case. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for an increased (compensable) rating for right ear hearing loss must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). B. Tinnitus The rating criteria for tinnitus, as in effect prior to June 10, 1999, provide for a maximum 10 percent rating when tinnitus is persistent as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). Under the new rating criteria, in effect since June 10, 1999, a maximum 10 percent rating is provided for recurrent tinnitus. 38 C.F.R. § 4.87, Code 6260 (1999). The veteran's tinnitus is manifested by complaints of persistent ringing in the ears, and the current 10 percent maximum schedular rating is meant to compensate him for the related industrial impairment. The preponderance of the evidence is against the claim for a rating in excess of 10 percent for tinnitus. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. C. Right Heel Disability The RO has rated the veteran's service-connected right calcaneal spur of the right heel by analogy to residuals of a foot injury. 38 C.F.R. §§ 4.20, 4.27. Residuals of a foot injury are rated 10 percent disabling when moderate, and 20 percent when moderately severe. 38 C.F.R. § 4.71a, Code 5284. Service medical records reveal that the veteran reported right heel pain and X-rays showed a right heel spur. Post- service medical records dated in 1992 show X-ray evidence of heel spurs but reflect that the right foot was essentially nontender with full range of motion. Later medical records refer to heel spurs but do not describe significant functional impairment from the condition. The 1996 VA podiatry examination noted tenderness to palpation of the medial calcaneal heel. Limited range of motion of the subtalar and mid tarsal joints was also noted. The diagnostic assessment was plantar fasciitis. The medical evidence does not demonstrate signs and symptoms suggesting that the veteran's right calcaneal heel spurs are similar to a moderately severe (20 percent) foot injury. Rather, the evidence shows that his right heel condition is more similar to moderate (10 percent) residuals of a foot injury under Code 5284, and thus the lower 10 percent rating is to be assigned. 38 C.F.R. § 4.7. The findings at the December 1996 VA examination reflect a moderate disability, including tenderness to palpation with no edema or erythema. X-ray findings reveal only a mild calcaneal spur of the right heel. Despite periodic complaints of right heel pain, the record demonstrates at most moderate functional impairment on use of the foot. Thus, there is no basis for an increase in the current 10 percent rating under Code 5284. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for a rating in excess of 10 percent for right heel spurs must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. D. Extraschedular Ratings The Board does not have the authority to assign extraschedular ratings in the first instance, and under the circumstances of the present case there is no basis to refer the case to designated VA officials for consideration of an extraschedular rating for any of the above-discussed disabilities. Extraschedular ratings are limited to cases in which there is 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 rating standards. Such factors do not appear in this case. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet.App. 337 (1996). ORDER A higher rating for right ear hearing loss is denied. A higher rating for tinnitus is denied. A higher rating for a right heel disability is denied. L. W. TOBIN Member, Board of Veterans' Appeals