BVA9507964 DOCKET NO. 93-13 809 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased (compensable) evaluation for otitis media and mastoiditis, postoperative with hearing loss. 2. Entitlement to a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324 (1994). REPRESENTATION Appellant represented by: James B. Melton, Attorney ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1965 to March 1967, July 1968 to February 1970, and from December 1974 to December 1991, This appeal arose from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO granted entitlement to service connection for otitis media and mastoiditis, postoperative with hearing loss; residuals of a fracture of the right lateral malleolus; a history of mitral regurgitation; and for residuals of a dislocated right shoulder. Each was assigned a noncompensable evaluation. Entitlement to a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324 was denied. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his hearing loss requires that he wear a hearing aid. He argues that his need for a hearing aid is sufficient evidence of the significance and extent of his hearing loss as to warrant a grant of an increased (compensable) evaluation. 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 a grant of a compensable evaluation for otitis media and mastoiditis, postoperative with hearing loss; and that the record supports a grant of a compensable evaluation for multiple noncompensable service connected disorders pursuant to the provisions of 38 C.F.R. § 3.324 (1994). FINDINGS OF FACT 1. The April 1992 VA audiology examination disclosed right ear pure tone thresholds of 70, 55, 50, and 60 decibels with an average of 59 decibels at 1000, 2000, 3000, and 4000 Hertz respectively. Right ear speech recognition was 74 percent. 2. The April 1992 VA audiology examination disclosed left ear pure tone thresholds of 30, 20, 45, and 25 decibels with an average of 30 decibels at 1000, 2000, 3000, and 4000 Hertz respectively. Left ear speech recognition was 98 percent. 3. The April 1992 VA examination revealed bilateral tympanic membrane scarring with retraction on the right. There was no finding of suppuration. 4. The April 1992 VA examination disclosed that the veteran had been fitted with hearing aids; that there was tenderness over the right shoulder; that right ankle motion was productive of pain; that the right ankle had a 7.9 centimeter brownish hyperpigmented scar with mild atrophy at the right medial malleolus; and that there was tenderness over the right medial and lateral malleoli. 5. The veteran’s service-connected disabilities interfere with normal employability. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for otitis media and mastoiditis, postoperative with hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, 4.87, 4.87a, Diagnostic Codes 6200-6100 (1994). 2. The requirements for a compensable evaluation for multiple noncompensable service connected disorders pursuant to 38 C.F.R. § 3.324 have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). In other words, he has presented claims which are plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's otitis media with mastoiditis, postoperative with hearing loss; residuals of a fracture of the right lateral malleolus; a history of mitral regurgitation; and residuals of a dislocated right shoulder. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. I. Entitlement to an increased (compensable) evaluation for otitis media and mastoiditis, postoperative with hearing loss. The service medical records show that in 1991 the veteran had otitis media and mastoiditis on the right, and that he required surgery for a cholesteatoma. At an April 1992 VA examination, the veteran was found to have bilateral tympanic membrane scarring with retraction on the right, and clear canals. There were no findings of suppuration. It was noted that due to chronic infection of the right ear he had undergone a mastoidectomy in September and October 1991 while in service. The April 1992 VA audiology examination disclosed right ear pure tone thresholds of 70, 55, 50, and 60 decibels with an average of 59 decibels at 1000, 2000, 3000, and 4000 Hertz respectively. Right ear speech recognition was 74 percent. Left ear pure tone thresholds were 30, 20, 45, and 25, with an average of 30 decibels at 1000, 2000, 3000, and 4000 Hertz respectively. Left ear speech recognition was 98 percent. The audiologist noted that the right ear revealed a mixed type hearing loss for all frequencies tested, which was accompanied by reduced word recognition ability. The left ear exhibited low mid frequency and high frequency loss for 3000 to 8000 ertz. Hearing aids were noted to have been fitted by the Navy. The veteran's hearing disability is evaluated as noncompensable under diagnostic codes 6200 and 6100 of the VA Schedule for Rating Disabilities. Under diagnostic code 6200, a 10 percent evaluation may be assigned for chronic, suppurative otitis media during the continuance of the suppurative process. A noncompensable evaluation has been assigned as the April 1992 VA ear examination disclosed no evidence of suppuration. 38 C.F.R. § 4.31. The April 1992 VA audiology examination also disclosed there was an average puretone loss of 59 decibels in the right ear, and of 30 decibels in the left ear. Speech audiometry revealed speech recognition ability of 74 percent in the right ear, and of 98 percent in the left ear. The above puretone decibel losses and discrimination percentages equate to a numeric designation of V in the right ear and I in the left ear in Table VI of 38 C.F.R. § 4.87 of the VA Schedule for Rating Disabilities. Application of these numeric designations for both ears to Table VII results in assignment of a noncompensable evaluation under diagnostic code 6100. Higher puretone decibel losses and lower speech recognition percentages would be required for the assignment of a compensable evaluation. Accordingly, as the veteran's bilateral hearing loss has not been shown to be sufficiently disabling as to warrant a compensable rating on the basis of current audiometric studies with application of the criteria under 38 C.F.R. §§ 4.87, 4.87a, the benefit sought on appeal is denied. In reaching this decision no question has been presented as to which of two evaluations would more properly classify the severity of the appellant's otitis media and mastoiditis, postoperative with hearing loss. 38 C.F.R. § 4.7. The claimant's ear disability does not present an unusual or exceptional clinical picture, and it has not markedly interfered with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards. 38 C.F.R. § 3.321(b)(1). II. Entitlement to a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324. Service connection has been granted for otitis media and mastoiditis, postoperative with hearing loss; residuals of a fracture of the right lateral malleolus; a history of mitral regurgitation; and for residuals of a dislocated right shoulder. Each of these disabilities is evaluated as noncompensable. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 VA Schedule for Rating Disabilities, the rating agency may apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. A review of the service medical records discloses the veteran dislocated his right shoulder in 1976. He sustained a fracture of his right lateral malleolus in 1984. The claimant was reported to have mitral regurgitation in 1989. At an April 1992 VA examination the appellant reported that his right ankle swelled on walking around a mall, and that he could not run secondary to swelling. In the last few weeks he felt his shoulder try to pop out when he was catching a softball The veteran stated that this joint hurt all the time with cold weather or wet weather. Physical examination of the shoulder revealed tenderness without erythema or swelling anteriorly. There was full range of right shoulder motion except for pain with moving the right shoulder to place the arm behind the head and back. It was noted the appellant could only lift the right arm when attempting to hold the right arm over the head. An x- ray of the right shoulder was noted to be normal. Doppler study of the heart showed no abnormal flows across mitral, pulmonic, aortic and tricuspid valves, and echocardiography was normal save for evidence of mitral annular calcification. There was no evidence of mitral regurgitation, and a chest x-ray revealed normal findings. Examination of the right ankle showed a 7.9 cm brownish hyperpigmented scar with mild atrophy at the right lateral malleolus. Tenderness was found over the medial/lateral malleoli of the right ankle, and there was trace 1+ pedal edema bilaterally. The right ankle demonstrated normal range of motion except for pain with all movements on the right. X-ray of the right ankle disclosed probable old small fractures and nonspecific soft tissue prominence. The examiner diagnosed post fracture of the right ankle with well healed atrophied scar, and no heart valve condition. The Board is of the opinion that the veteran's noncompensably evaluated disabilities clearly interfere with his ability to work. In this regard, the Board observes that the veteran's hearing loss in and of itself with need for a hearing aid adversely affects his ability to perform his work. The pain and functional limitations in his right shoulder and ankle, together with his hearing loss constitute, in the Board's opinion, a sufficiently adverse impact in his daily functioning in an industrial environment as to permit the conclusion that the criteria for a compensable evaluation of 10 percent under 38 C.F.R. § 3.324 are satisfied. Accordingly, the Board finds a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324 is warranted. ORDER Entitlement to a compensable evaluation for otitis media and mastoiditis, postoperative with hearing loss is denied. Entitlement to a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324 is granted, subject to pertinent criteria applicable to the payment of monetary benefits. DEREK R. BROWN 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. ADDENDUM Pursuant to the authority provided at 38 C.F.R. § 19.13(a) (1994), the assumption of jurisdiction to grant a compensable evaluation pursuant to the provisions of 38 C.F.R. § 3.324 is approved. ____________________________ ROGER K. BAUER Vice Chairman