BVA9500187 DOCKET NO. 93-09 039 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. 2. Entitlement to disability compensation under the provisions of 38 C.F.R. § 3.324. 3. Entitlement to nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Mississippi Division of Veterans Affairs ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from March 1943 to October 1945. This is an appeal from 1991 and 1992 rating actions by the Department of Veterans Affairs (VA) Regional Office, Jackson, Mississippi, which confirmed and continued a noncompensable evaluation for the veteran's bilateral hearing loss and was denied entitlement to disability compensation under the provisions of 38 C.F.R. § 3.324 (1993) and to nonservice- connected disability pension benefits. For the reasons discussed below, the Board assumes jurisdiction of the issue of service connection on a secondary basis and the proper evaluation for tinnitus. 38 C.F.R. § 19.13 (1993). The issue of a compensable evaluation under the provisions of 38 C.F.R. § 3.324 is moot. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that an increased evaluation should be assigned for his hearing loss since his hearing has been getting worse for years and he has failed to obtain some good jobs on account of the hearing loss. The veteran further maintains that he should be entitled to receive nonservice- connected disability pension benefits effective from August 1989 when he reached age 65. 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 veteran's claims for a compensable evaluation for his bilateral hearing loss and nonservice-connected disability pension benefits. Service connection and an evaluation of 10 percent are in order for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran has level II hearing in both ears. 3. In addition to his hearing loss, the veteran has established service connection for a scar on the back of the left ear resulting from a gunshot wound and residuals of a cerebral concussion, each rated noncompensable. 4. The veteran has persistent tinnitus, a symptom of acoustic trauma, rated as 10 percent disabling. 5. The veteran's nonservice-connected conditions consist of atrophy of both testis, rated 20 percent disabling, and benign prostatic hypertrophy, rated noncompensable. 6. The veteran was born in August 1924 and completed three years of high school. He was employed as a construction worker and was last employed in 1986. 7. The veteran's disabilities do not prevent him from engaging in substantially gainful employment considering his age, education and employment experience. CONCLUSIONS OF LAW 1. An increased (compensable) evaluation for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Code 6100 (1993). 2. Tinnitus is proximately due to or the result of a service- connected disease or injury, and meets the criteria for a 10 percent evaluation. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.310, Part 4, Code 6260 (1993). 3. The veteran is less than 100 percent disabled and he is not unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. I. The Claim for a Compensable Evaluation for Bilateral Hearing Loss The veteran's service medical records reflect that he sustained a concussion in October 1944 as a result of a shell blast. Both tympanic membranes were perforated. He also had a hearing loss. The veteran was afforded an audiological examination by the VA in May 1950. A diagnosis of bilateral mild deafness was made. By rating action dated in May 1950, service connection was granted for defective hearing, rated noncompensable. When the veteran was afforded an audiological examination by the VA in September 1977, a mild to moderate high frequency sensorineural hearing loss of the right ear was reported. A mild sensorineural hearing loss for the left ear was also reported with a severe loss beginning at 4,000 hertz. In May 1991, the veteran submitted a claim for an increased evaluation for his hearing loss. The veteran was afforded an audiological examination by the VA in June 1991. The examination reflected for the right ear pure tone threshold levels in decibels of 25, 45, 50 and 65, at 1,000, 2,000, 3,000, and 4,000 hertz for an average of 46 decibels. For the left ear, the threshold levels in decibels were 25, 45, 60 and 70, at those frequencies for an average of 50 decibels. The speech recognition score was 98 percent for the right ear and 94 percent for the left ear. The veteran later submitted a June 1992 private audiological report indicating that there were a 38 percent loss in the right ear and a 46 percent loss in the left ear. The veteran was again afforded a VA audiological examination in July 1992. The examination reflected for the right ear pure tone threshold levels in decibels of 40, 45, 55 and 70 at 1,000, 2,000, 3,000, and 4,000 hertz for an average of 52.5 decibels. For the left ear, the threshold levels in decibels were 35, 50, 65 and 70 at those frequencies for an average of 55 decibels. The speech recognition score was 88 percent for the right ear and 84 percent for the left ear. Under the current schedular criteria, the determination of the degree of impairment resulting from defective hearing is based on the results of controlled speech discrimination tests together with an average of hearing threshold levels as measured by pure tone audiometry in the frequencies of 1,000, 2,000, 3,000, and 4,000 hertz. The rating schedule establishes 11 levels of auditory acuity, designated from level I, for essentially normal hearing, to level XI for profound deafness. As noted above, the most recent VA audiological examination report reflects that in the right ear, the average pure tone decibel threshold level was 52.5 and in the left ear the average threshold level was 55. The speech recognition score was 88 percent for the right ear and 84 percent in the left ear. Those findings correspond to level II in both ears. Under the provisions of Diagnostic Code 6100, a noncompensable evaluation is provided for a bilateral hearing loss in such circumstances. Thus, an increased rating for the bilateral hearing loss would not be in order. Although the June 1992 private audiological report reflected that there were a 38 percent loss in the right ear and a 46 percent loss in the left ear, the basis for these conclusions was not provided. II. Service Connection and the Proper Evaluation for Tinnitus At the time of the VA audiological examination in July 1992, the veteran reported periodic roaring tinnitus, bilaterally, which affected his ability to hear speakers, especially in crowds. As tinnitus is a recognized consequence of sensori-neural hearing loss, in this case caused by acoustic trauma, service connection on a secondary basis is warranted. 38 C.F.R. § 3.310. Further, it appears that the veteran's tinnitus is persistent within the meaning of Code 6260; thus, a 10 percent evaluation is in order. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A.. § 5107. Given the above determinations, the issue of a compensable evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 is moot. III. The Claim for Nonservice-connected Disability Pension Benefits The record reflects that the veteran was born in August 1924 and has completed three years of high school. He has indicated that he was employed as a construction worker and was last employed in 1986. He has also indicated that he began receiving Social Security benefits in 1987; however, these benefits were apparently retirement benefits based on his age. It should be commented that the law regarding entitlement to disability pension benefits was changed and a veteran is no longer entitled to such benefits solely on the basis of reaching age 65. Pub.L. 101-508 (effective November 1, 1990). It is now necessary that he be permanently and totally disabled as a result of all of his disabilities in order to establish entitlement to disability pension benefits. On the July 1992 VA general medical examination, the veteran's height was 70 inches and his weight was 190 1/2 pounds. He was described as well developed and well nourished. His carriage was normal, his posture was erect and his gait was normal. The genitourinary system was normal except for moderately severe atrophy of both testicles. There was also moderate benign prostatic hypertrophy with no tenderness or nodule or history of hematuria. There had been nocturia on one occasion. As indicated previously, the neurological evaluation was normal. The skin and head, face and neck were reported to be normal. The remainder of the general medical examination did not reveal any significant abnormality. The diagnoses were atrophy of both testicles and moderate benign prostatic hypertrophy. On special ear examination, the veteran reported a hearing loss. He denied having vertigo or problems with his balance. The examination showed normal tympanic membranes. The middle ear spaces were clear of disease or fluid. The assessment was sensorineural hearing loss consistent with noise exposure during service. On the VA audiological examination conducted in July 1992, as indicated previously, a bilateral hearing loss was shown. The veteran also reported a period roaring tinnitus, bilaterally, that had its onset about six months previously. The veteran was not aware of what had caused the tinnitus. As discussed previously, the veteran's bilateral hearing loss is rated as noncompensable under the provisions of Diagnostic Code 6100. His tinnitus warrants an evaluation of 10 percent under Diagnostic Code 6260. The scar on the back of the veteran's left ear resulting from the gunshot wound is not shown to be disfiguring or to have resulted in a functional impairment. Thus, a noncompensable evaluation is warranted for that condition. 38 C.F.R. § Part 4, Diagnostic Codes 7800, 7804, 7805. It has not been shown that he has any current residuals of the concussion suffered during service. Thus, a noncompensable evaluation would also be warranted for that condition. 38 C.F.R. Part 4, Diagnostic Code 8045-9304. Although there is atrophy of both testicles, a 20 percent evaluation is the maximum warranted for that condition. 38 C.F.R. Part 4, Diagnostic Code 7523. The prostatic hypertrophy was described as benign and there is no impairment resulting from that condition. Thus, a noncompensable evaluation would be in order for that disability. 38 C.F.R. Part 4, Diagnostic Code 7527. A maximum combined rating of 30 percent would therefore be in order for all of the veteran's disabilities. In this case, the veteran is not totally disabled and does not meet the percentage requirements for disability pension benefits. This is, he does not have at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16, 4.17. Further, the evidence in the Board's opinion does not establish that the veteran is unemployable by reason of his disabilities, age, occupational background and other related factors. Although the veteran has several disabilities, as noted previously, the record does not establish that the disabilities are of such nature and severity so as to permanently prevent the veteran from engaging in all types of substantially gainful employment. Accordingly, under these circumstances, a permanent and total disability rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b)(2). The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue regarding entitlement to an increased (compensable) rating for bilateral hearing loss and nonservice-connected disability pension benefits. 38 U.S.C.A. § 5107. ORDER Entitlement to an increased (compensable) evaluation for bilateral hearing loss is denied. Entitlement to service connection and a 10 percent evaluation for tinnitus is granted, subject to the law and regulations governing the payment of monetary benefits.. Entitlement to nonservice-connected pension disability benefits is denied. WAYNE M. BRAEUER 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.