BVA9504622 DOCKET NO. 93-09 845 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for tinnitus, and to a compensable rating for high frequency hearing loss, both in the right ear. 2. Entitlement to service connection for residuals of bilateral tympanoplasties with removal of incus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military duty from July 1966 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision which denied an increased rating for right ear defective hearing and right ear tinnitus. The notice of disagreement, which raised the issue of residuals of surgeries as noted on the title page of this decision, was received in January 1992. In accordance with the provisions of Thurber v Brown, 5 Vet.App. 119 (1993), the representative, Veterans of Foreign Wars of the United States, was provided with a copy of the medical literature cited in this decision, in a letter dated in March 1994. In a letter dated in April 1994, the representative responded that no further comment or argument would be submitted. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that service connection should be granted for residuals of bilateral tympanoplasties with removal of incus because the surgeries were necessitated by service-connected disabilities, and that increased ratings should be granted for right ear tinnitus and right ear defective hearing. 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 evidence warrants service connection for residuals of right ear tympanoplasty and removal of right incus. For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against service connection for left ear tympanoplasty and removal of left incus. For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against a compensable rating for right ear defective hearing and against an increased rating for right ear tinnitus. FINDINGS OF FACT 1. Residuals of right ear tympanoplasty and right incus removal, including right conductive hearing loss, cannot be disassociated from service-connected right ear defective hearing. 2. Residuals of left ear tympanoplasty and left incus removal are not associated with wartime service or with any service- connected disability. 3. Right ear tinnitus is no more than persistent as a symptom of head injury, concussion, or acoustic trauma. 4. Right ear defective hearing is level II, and the left ear is not totally deaf. CONCLUSIONS OF LAW 1. Residuals of right ear tympanoplasty with removal of right incus, including right conductive hearing loss, are proximately due to or the result of service-connected disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1994). 2. Residuals of left ear tympanoplasty and left incus removal were neither incurred in or aggravated by wartime service, nor are they proximately due to or the result of any service- connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310 (1994). 3. The criteria for an increased rating for right ear tinnitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.87a, Diagnostic Code 6260 (1994). 4. The criteria for a compensable rating for right ear defective hearing are not met. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.383, 4.14, 4.85, 4.87, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection may be granted for a disability which is proximately due to or the result of service- connected disability. 38 C.F.R. § 3.310. Disability evaluations are determined by the application of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Tinnitus, persistent as a symptom of head injury, concussion, or acoustic trauma, is evaluated at 10 percent. No higher schedular rating is available for tinnitus. 38 C.F.R. § 4.87a, Diagnostic Code 6260. Evaluations of unilateral defective hearing range from noncompensable to 10 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 pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second or hertz. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes 11 auditory acuity levels, from level I for essentially normal hearing to level XI for profound deafness. In situations where service connection is in effect for only one ear, and the appellant does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where the hearing in the service-connected ear is at level X or XI. 38 U.S.C.A. § 1160; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110. Service connection for tinnitus and high frequency hearing loss in the right ear was granted by a rating decision dated in February 1978. At that time, service connection was also denied for tinnitus and high frequency hearing loss in the left ear as existing prior to service without aggravation in service. We note that the veteran is considered to be totally disabled, due to severe high frequency hearing loss with tinnitus and atypical paranoid disorder, by the Social Security Administration (SSA). VA treatment records from October to December 1977 show that the veteran complained of constant tinnitus, made worse by ear plugs, and being excessively bothered by loud noises. He asked to be made deaf. He was referred to the American Tinnitus Society, and a psychiatric consultation was recommended. At VA ear, nose, and throat (ENT) examination in January 1978, the pertinent diagnoses were right ear mild sensorineural high frequency hearing loss with secondary tinnitus. Private ENT consultation by J. L. Reese, M.D., in January 1985 showed the veteran's complaints that any noise, including human speech, exacerbated tinnitus. A quiet room helped. He had adjusted his lifestyle and lived in a fairly remote area to get away from possible noise exposure. He wore ear plugs constantly to reduce the chance of noise, and felt that his left ear was worse. The impression was severe tinnitus, and he was referred to the American Tinnitus Association. Private mental health evaluation in November 1985 revealed the veteran's report that he had been abducted by beings of superior intellect in 1975, and that while a captive of these "aliens," he was afforded the only relief ever from painful tinnitus since his Vietnam exposure to noise. He believed that the aliens were knowledgeable and skillful in medical technology and this gave him hope for the future. He was completely isolated, however, and had no recreational activities or supportive relationships because of fear of exposure to noise, which could aggravate his condition. He was angry over the changes he had to make to accommodate his condition. The evaluator felt that the veteran was socially and vocationally dysfunctional due to his Vietnam "injuries," and that he needed more money in order to soundproof his home, so that he could enjoy some measure of a normal lifestyle. She noted that he could not stand the sound of running water, automobile motors, small appliances, human voices, or music. In March 1986, Dr. Reese stated that the veteran had severe, mentally and physically disabling tinnitus. E. Gough, M.D., an ENT physician, was noted in an SSA decision (dated in November 1987) to have reported in March 1986 that the veteran's reaction to the use of ear plugs was the exact opposite of that of the average person with such a condition. Thus, Dr. Gough suspected psychological problems. The SSA judge pointed out, however, that the degree of tinnitus could not be determined by objective tests. A psychiatrist's March 1986 evaluation was reported to show that the veteran's daily activities consisted of avoiding noise. The veteran denied any psychological elements in his complaints and stated that his problems were entirely physical. A consultative psychologist's evaluation in July 1987 was said to show emotional instability, acting out, negativistic tendencies, and possible organic elements. The discrepancy between verbal and full scale IQ testing was characteristic of individuals with right brain hemisphere or diffuse brain damage. The examiner commented that the veteran was very reclusive and anti-social by his own choice, although it was his opinion that this was necessary due to his tinnitus. The diagnosis at both of these examinations was atypical paranoid disorder. A psychiatric consultation for the SSA in October 1987 was reported to have shown that the veteran was obsessed with the need for a perfect soundproof environment, but, notably, was not bothered by any of the sounds in the psychiatrist's office. He also could get along with his family, live with them, and relate to his friends who came over to visit. When asked why he could not work, however, he insisted that he could bear no sound. He denied having paranoid ideations but appeared to have them. He almost attacked people for not taking care of his tinnitus needs. The diagnoses were atypical personality disorder and paranoid personality disorder. The November 1987 SSA decision also notes the veteran's assertions that his disability stems solely from his bilateral ear problems, and that his only relief was on a "UFO." He was reported to have seen a mental health professional only once. The SSA judge noted that the veteran had no difficulty understanding him, although the judge spoke normally. Private medical records of D. Brackmann, M.D., dated from July to August 1988 reflect findings of severe tinnitus, severe recruitment, and bilateral sensorineural hearing loss. "Recruitment" is an abnormally large increase in the loudness of a sound caused by a slight increase in its intensity. Dorland's Illustrated Medical Dictionary 1133 (26th ed. 1981). "Sensorineural" indicates uncertainty as to whether the loss of hearing is due to a lesion in the inner ear or in the 8th nerve. Sensory loss is cochlear and neural loss is 8th nerve loss. Recruitment in sensory hearing loss results in the perceived loudness of sound increasing more with each increment in intensity than in a normal ear. In neural hearing loss, the loudness of sound increases no more with each increment in intensity than does a normal ear (no recruitment), or increases less with each increment in intensity than does a normal ear (decruitment). The Merck Manual 2322-24 (Robert Berkow, M.D., ed., 16th ed. 1992). The veteran complained to Dr. Brackmann in July and August 1988 of being extremely sensitive to noise. He stated that he did not care about his hearing acuity any longer and desired surgical relief. The removal of the incus bilaterally was discussed and the veteran was advised to call or write if this surgery was desired. In October 1988, he underwent right tympanoplasty with removal of the right incus. The operative report shows that diagnosis in the right ear was hyperrecruitment and the purpose of the surgery was to produce a permanent conductive hearing loss in that ear. The veteran reported afterwards that the surgery was "wonderful" and "fantastic," and wanted the surgery done on the left ear. In August 1989, it was noted that the veteran had partial relief from the previous surgery but that he still had marked hyperrecruitment in the left. Surgery was advisable on the left because he still had to wear a plug and muff, and even then had a painful response to sound. Therefore, the same month, the veteran underwent private left tympanoplasty with removal of the left incus, to create a conductive hearing loss. It was hoped that this would decrease hyperrecruitment on the left. The veteran later called his private physician and reported that he again had symptoms of hypersensitivity to sound and requested surgery to cut the cochlea. He was advised that this would result in total deafness and that this was not indicated for his problem. He was advised to get psychological evaluation. At VA audiology examination in September 1991, the diagnosis was bilateral mixed hearing loss. The veteran complained of severe tinnitus. The examiner stated that the veteran's bilateral hearing was profoundly impaired due to his election to undergo bilateral tympanoplasty and removal of incus. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 50 80 90 100 LEFT 45 60 80 100 105 The average right and left pure tone thresholds for rating purposes were 80 and 86 decibels, respectively. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. A noncompensable rating is assigned for unilateral defective hearing where the pure tone threshold in the service-connected ear is 80 decibels with speech recognition ability of 96 percent correct (level II) and the nonservice-connected ear is not totally deaf. 38 C.F.R. §§ 3.383, 4.14, 4.85, Diagnostic Code 6100. At his hearing before the Board, the veteran testified that he had been rendered unconscious in Vietnam by 5 days of explosions and evacuated out of a combat area because he was "scrambled." He stated that his ear surgery was necessitated by events in service and that he should not be barred from a higher rating because the surgery was elective, as it was also medically advised. He admitted that he understood prior to the surgery that his hearing acuity would decrease as a result of the surgery. This effect was desired because it was hoped to cause a decrease in recruitment. In fact, the surgery did relieve the "input of outside sound" (the source of recruitment), according to the veteran. The surgery, however, increased his tinnitus, in his opinion. (Transcript of hearing at page 8.) We have considered the relevant evidence. In light of corroborating medical texts, we agree with the veteran that recruitment is associated with his service-connected right ear sensorineural hearing loss. As such, the right ear surgery ameliorated a symptom of the service-connected defective hearing, that is, recruitment. Therefore, service connection is warranted for residuals of right ear tympanoplasty with removal of right incus, including right conductive hearing loss. Service connection is not warranted for left ear tympanoplasty with removal of the left incus, as that surgery was performed to ameliorate recruitment secondary to nonservice-connected left ear defective hearing. A claim for service connection for left ear defective hearing has previously been denied. Based on the above, we consider the claim for an increased rating for right ear defective hearing based on the total post-surgery hearing status of the right ear. Hearing in the service-connected right ear, following the 1988 surgery, is level II. Hearing in the non-service connected left ear is considered level I for rating purposes because it is not totally deaf. 38 C.F.R. §§ 3.383, 4.14. Therefore, the schedular rating for right ear defective hearing is noncompensable. 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating is one which we believe is appropriate, considering the veteran's admission at his personal hearing that recruitment associated with this disability was improved by surgery, and that some portion of the remaining recruitment is associated with nonservice-connected left ear defective hearing. The regular rating schedule is adequate to rate this disability, as it does not present an unusual or exceptional disability picture which would render the schedule inapplicable. The right ear hearing loss is rated on the degree of hearing loss, regardless of the cause or etiology of the hearing loss. Thus, an extraschedular rating is not appropriate. 38 C.F.R. § 3.321(b)(1). Regarding the rating for tinnitus, the veteran already is awarded the highest schedular rating for this disability. While we sympathize with the veteran that tinnitus is persistent, we find that it is adequately compensated by the 10 percent rating assigned, which contemplates a persistent disorder. The Board does not disagree with the SSA judge's observation that the degree of tinnitus cannot be determined by objective tests. At the same time, the purpose of the rating schedule, provided by law, is to provide a basis for disability evaluation based on both subjective and objective criteria, and the Board finds that the absence of objective testing for a disability does not diminish the utility of the schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An extraschedular rating for tinnitus is not appropriate, in the absence of an unusual disability picture not contemplated by the rating schedule. 38 C.F.R. § 3.321(b)(1). While we appreciate that the veteran experiences tinnitus as painful, this, in itself does not render impractical the application of the regular schedular standards. A compensable rating for a disability necessarily anticipates some impairment of earning capacity due to the disability, which, in the case of tinnitus, would not be inconsistent with the presence of some pain. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Therefore, the Board finds that the regular rating schedule applies to the rating of tinnitus in this case. ORDER Entitlement to service connection for residuals of right tympanoplasty with removal of the right incus, including right conductive hearing loss, is granted. Entitlement to service connection for residuals of left tympanoplasty with removal of the left incus is denied. Entitlement to a compensable rating for right ear defective hearing with recruitment is denied. Entitlement to a rating in excess of 10 percent for right ear tinnitus is denied. WILLIAM J. REDDY HARRY M. McALLISTER, M.D. Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals M. SABULSKY Member, Board of Veterans' Appeals 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.