BVA9500323 DOCKET NO. 93-07 571 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 20 percent for otosclerosis, with hearing loss, status post right ear fenestration and left ear stapedectomies. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from October 1954 to August 1958. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a April 1992 rating decision of the St. Petersburg, Florida, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 20 percent for the appellant's service-connected otosclerosis, with hearing loss, status post right ear fenestration and left ear repeated stapedectomies. The Board's decision is limited to the issue developed for appellate review. It is unclear from the record, however, whether the appellant intends to raise a claim for service connection for a psychiatric disability. If so, the appellant should contact the RO, and the RO should then take appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 20 percent for otosclerosis, with status post right ear fenestration and left ear repeated stapedectomies. He asserts that in addition to hearing loss, he currently suffers from pain and bleeding in his right ear, as well as pain and recurrent infections in his left ear. He requests additional compensation for residuals of his repeated left ear surgeries. 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 appellant'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 allowance of the claim for an evaluation in excess of 20 percent for otosclerosis, with hearing loss, status post right ear fenestration and left ear stapedectomies. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The most current audiological examination indicates Level I hearing in the appellant's right ear and Level II hearing in his left ear. 3. He also experiences recurrent ear infections. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for otosclerosis with hearing loss, status post right ear fenestration and left ear stapedectomies have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, 3.951(a ) , Part 4, § 4.85, Table VI and Table VII, Diagnostic Codes 6100, 6200, 6202 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to his claim. 38 U.S.C.A. §5107(a) (West 1991). During a December 1991 VA examination, as well as during the 1992 personal hearing, the appellant reported ongoing VA outpatient treatment (OPT) for recurrent left ear infections. There are no VAOPT records dated after 1984 currently associated with the claims folder. However, since the appellant has not asserted any additional relevancy of such VA OPT records other than treatment for recurrent left ear infections, and the appellant's assertions appear credible, the Board will proceed with the current evaluation and consider all residuals of the appellant's service- connected otosclerosis, including left ear infections. Moreover, the current evidentiary record contains complete service medical records, as well as post-service VA and private inpatient reports dated in 1960 and 1969; post service VA examinations including audiograms dated in 1959, 1960, 1983, 1984, 1987, and 1991; and treatment reports from the appellant's private physician including audiograms dated in 1969, 1970, 1971, 1975, and 1977 which the Board concludes adequately detail the history and current severity of the appellant's otosclerosis. Therefore, after reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). Separate diagnostic codes identify the various disabilities. A readjustment to the schedule for rating disabilities shall not be grounds for reduction of the disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability has actually improved. 38 C.F.R. § 3.951(a) (1993). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1993). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In 1987, VA amended the schedule for rating disabilities to implement a new and more universally acceptable method for evaluating the degree of disability attributable to hearing loss. Under the rating criteria in effect before December 1987, otosclerosis was evaluated on the basis of any associated loss of hearing. Hearing loss was in turn evaluated on the extent of impairment in the conversational voice range, i.e. 500, 1000 and 2000 hertz. 38 C.F.R. Part 4, § 4.85, Table VI, VII, Diagnostic Code (DC) 6202. The rating criteria for evaluation of hearing loss were subsequently revised, effective December 1987. According to the current revised schedule for rating disabilities, otosclerosis continues to be evaluated on the basis of any associated loss of hearing. 38 C.F.R. Part 4, DC 6202 (1993). However, the severity of hearing loss is currently determined, for VA benefits purposes, by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, DC 6100 through 6110 (1993). Evaluations of bilateral defective hearing range from noncompensable to 100 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 1,000, 2,000, 3,000 and 4,000 hertz (cycles per second). The revised schedule for rating disabilities allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. Service medical records indicate that the appellant was diagnosed with otosclerosis during service, resulting in a 1956 right ear fenestration and a 1957 left ear stapedectomy. By a rating decision dated in February 1960, service connection for bilateral otosclerosis was granted and a noncompensable evaluation was assigned therewith. The record further reflects that the appellant subsequently underwent two additional left ear stapedectomies dated in May 1960 and November 1969. In a June 1983 rating decision, the appellant was assigned a 10 percent evaluation for his service-connected bilateral otosclerosis, effective April 1983, due to an increase in hearing disability detected on a May 1983 VA audiogram. Subsequently, in a March 1985 rating decision, the appellant was assigned, in part, a 20 percent evaluation for otosclerosis with hearing loss, status post right ear fenestration and left ear repeated stapedectomies, effective January 1984. It is noted that such evaluations were determined based upon the 1945 schedule for rating disabilities. In October 1991, the appellant reopened his claim for an increased evaluation for his service connected otosclerosis, and submitted a November 1991statment from William H. Lippy, M.D.. In such statement, Dr. Lippy, who stated that he had treated the appellant since 1969, indicated the possibility of future left ear surgeries, and included the results of audiograms performed from March 1969 to July 1977. The evidentiary record currently contains VA audiograms dated in 1959, 1960, 1983, 1984, 1987, and 1991. Results from the May 1987 VA audiogram indicated thresholds of 40, 40, 45, 55 and 70 decibels at 500, 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 45, 35, 35, 65, and 90 decibels at 500, 1000, 2000, 3000, and 4000 hertz, respectively, for the left ear. Under current regulations, the average right ear pure tone threshold was 50 decibels, with right ear speech recognition at 92 percent, resulting in Level I hearing acuity for the right ear; the average left ear pure tone threshold was 54 decibels, with left ear speech recognition at 92 percent, resulting in Level I hearing acuity for the left ear. The most current VA audiogram, dated in December 1991, indicated thresholds of 50, 40, 55, and 80 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for the right ear; and 35, 40, 65, and 90 decibels at 1000, 2000, 3000, and 4000 hertz, respectively, for the left ear. The average right ear pure tone threshold was 56 decibels, with right ear speech recognition at 96 percent, resulting in Level I hearing acuity for the right ear; the average left ear pure tone threshold was 58 decibels, with left ear speech recognition at 100 percent, resulting in Level II hearing acuity for the left ear. During a November 1992 personal hearing, the appellant presented sworn testimony that he currently suffered from increased bilateral hearing loss, as well as additional residuals of his repeated left ear stapedectomies. He testified that he had his right ear cleaned periodically, but that he had not suffered any infections in that ear. He further testified that he suffered from recurrent infections in his left ear, resulting in pain, the daily use of antibiotics, and the possibility of future left ear surgery. The objective clinical evidence of record simply does not support an evaluation in excess of 20 percent for the appellant's service connected otosclerosis with status post right ear fenestration and left ear repeated stapedectomies. As noted above, otosclerosis is evaluated on the basis of any associated hearing loss, and the schedular criteria do not provide for a separate compensable rating for this disability on any other basis. 38 C.F.R. Part 4, DC 6202 (1993). The assignment of disability ratings for hearing impairment is currently derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the revised rating schedule, a noncompensable evaluation is assigned where hearing is at Level II for one ear and at Level I in the other ear, or Level I in both ears. However, current regulations also prohibit reduction of an assigned evaluation based upon simply a change in the rating schedule. 38 C.F.R. § 3.951(a) (1993). As the appellant's current evaluation of 20 percent for otosclerosis was assigned prior to the December 1987 revision of the rating schedule, and there is no medical evidence of record indicating his hearing disability has actually improved, such 20 percent disability evaluation for otosclerosis is, at best, confirmed and continued at this time. In addition, it is noted that the current evaluation derived from the rating schedule is intended to make proper allowance for hearing aids. 38 C.F.R. § 4.86 (1993). The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. Even if a 10 percent rating for suppurative otitis media is combined with the rating for hearing loss as provided by DC 6200, since the actual schedular evaluation of the hearing loss is noncompensable, an overall combined rating in excess of 20 percent would not be warranted. In other words, the current 20 percent rating adequately compensates the hearing loss and recurrent infections. We must accordingly find that under current regulations, the preponderance of the evidence is against the appellant's claim for an evaluation in excess of 20 percent for otosclerosis with status post right ear fenestration and left ear stapedectomies. Moreover, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's otosclerosis with status post right ear fenestration and left ear stapedectomies. The Board has considered the sworn testimony of the appellant indicating increased hearing loss, as well as recurrent left ear infections. However, the evidentiary record reflects that the appellant has not been hospitalized since 1969 due to his service-connected disability, and has recently been declared permanently and totally disabled by the VA due to non service-connected disabilities. Therefore, we do not find that the appellant's service-connected otosclerosis with status post right ear fenestration and left ear stapedectomies presents such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1993). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 20 percent for otosclerosis with status post right ear fenestration and left ear stapedectomies is denied. HOLLY E. MOEHLMANN 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. (CONTINUED ON NEXT PAGE) 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.