BVA9502498 DOCKET NO. 93-03 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to restoration of a 20 percent disability evaluation for sensorineural hearing loss in the right ear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from March 1943 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a July 1991 rating decision by the Department of Veterans Affairs (VA) Pittsburgh, Pennsylvania, Regional Office (RO), which reduced the appellant's disability evaluation for his service-connected sensorineural hearing loss in the right ear from 20 percent to noncompensable, on the basis that a November 1988 rating decision had been clearly and unmistakably erroneous in granting a 20 percent evaluation for the appellant's service- connected unilateral hearing loss. The Board notes that the appellant instituted a claim for an increased evaluation for his service-connected right ear hearing loss in April 1990, which was denied by the RO in a September 1990 rating decision. After receiving a statement of the case on that issue in January 1991, the appellant submitted a statement in February 1991 in which he indicated that he had not raised the issue of entitlement to an increased evaluation for his service- connected sensorineural hearing loss in the right ear. Because of that statement, the Board finds that it would be improper to render an appellate decision at this time on an issue that the appellant has clearly indicated he is not pursuing. Therefore, this decision will only address the issue of entitlement to restoration of a 20 percent disability evaluation for sensorineural hearing loss in the right ear. The appellant appears to raise the issues of entitlement to service connection for a nervous condition, tinnitus, and hearing loss in the left ear. The Board notes that service connection for a nervous condition was denied by the Board in a November 1955 appellate decision and subsequently by the RO in a January 1985 rating decision. We also note that the appellant is already service connected for tinnitus, as associated with his service- connected otitis externa. However, because his service-connected right ear hearing loss is sensorineural in nature, the Board is of the opinion that he may be seeking to have his tinnitus rated as a separate entity, perhaps secondarily related to his sensorineural hearing loss in the right ear. These claims are not inextricably intertwined with the current claim and have not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his defective hearing has not improved, and, therefore, the evaluation assigned for that disability should not have been reduced from 20 percent to noncompensable. 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 the appellant's claim of entitlement to restoration of a 20 percent disability evaluation for sensorineural hearing loss in the right ear. FINDINGS OF FACT 1. In a November 1988 rating decision, the RO granted a 20 percent evaluation for the appellant's service-connected sensorineural hearing loss in the right ear, based on audiometric findings pertaining to both ears at a September 1988 VA audiological evaluation. 2. The appellant is service-connected for defective hearing in the right ear only. 3. At the September 1988 VA audiological evaluation, the appellant had an average puretone decibel loss of 73, with a speech discrimination ability of 82 percent correct, in the right ear, which represented Level IV hearing acuity in the right ear. 4. At a June 1990 VA audiological evaluation, the appellant had an average puretone decibel loss of 71, with a speech discrimination ability of 88 percent correct, in the right ear, which represented Level III hearing acuity in that ear. 5. At a December 1991 VA audiological evaluation, the appellant had an average puretone decibel loss of 72, with a speech discrimination ability of 88 percent correct, in the right ear, which represented a Level III hearing acuity in that ear. CONCLUSION OF LAW Restoration of a 20 percent evaluation for sensorineural hearing loss in the right ear is not warranted. 38 U.S.C.A. §§ 1155, 1160(a), 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.85, 4.87, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claim is well-grounded and adequately developed. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). VA law and regulations provide that where service connection has been granted for defective hearing involving only one ear, and total deafness is present in the other ear as a result of nonservice-connected disability not the result of the veteran's own willful misconduct, a compensable evaluation is possible. 38 C.F.R. § 1160(a) (1994). In situations where service connection has been granted only for defective hearing involving one ear, and the veteran does not have total deafness in both ears, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at Level X or XI. 38 C.F.R. § 4.85, 4.87, Diagnostic Codes 6100 and 6101 (1994). Audiometric findings in the right ear at the September 1988 VA audiological evaluation revealed decibel losses of 30, 50, and 105 for the frequencies at 1000, 2000, and 3000 cycles per second (hertz), respectively, with the frequency at 4000 hertz labeled as NR, for an average puretone decibel loss of 73. (An October 1988 report of contact between the RO and a VA Chief of Audiology and Speech Pathology indicates that a "NR" in the puretone thresholds is equivalent to a 105 decibel loss). Speech reception ability in the right ear was 82 percent correct at that time. These findings for the right ear represented Level IV hearing acuity. Audiometric findings for the nonservice- connected left ear in September 1988 showed an average puretone decibel loss of 88 decibels, with a speech recognition ability of 66 percent correct. VA Form 10-2364, audiological evaluation, dated September 22, 1988. In its November 1988 rating decision, the RO incorrectly considered the appellant as being service connected for bilateral defective hearing, whereas he was only service connected for the sensorineural hearing loss in his right ear, and, therefore, matched the average puretone decibel loss and speech discrimination ability in both the right and left ears with Tables VI and VII in 38 C.F.R. § 4.85 (1994). Due to this mistake in rating the appellant as for bilateral service- connected hearing loss, rather than unilateral hearing loss, the RO arrived at a disability evaluation commensurate with the actual hearing acuity in both ears. However, because the appellant is only service connected for hearing loss in the right ear, the hearing acuity in the nonservice-connected left ear should have been considered as Level I (normal), under the applicable laws and regulations. Thus, the proper combination of the appellant's hearing acuity levels in November 1988 should have been Level III for the service-connected right ear hearing loss and Level I for the nonservice-connected left ear hearing loss, which equates to a noncompensable evaluation under Diagnostic Code 6100. Because the appellant was not totally deaf in the nonservice-connected left ear, he needed to demonstrate that he had Level X or Level XI hearing acuity in the service- connected right ear to be entitled to a compensable evaluation (10 percent) in November 1988. As the audiometric findings in September 1988 did not show total deafness in the left ear or Level X or Level XI hearing acuity in the right ear, a compensable evaluation was improper. The Board notes that subsequent VA audiological evaluations revealed that the appellant had an average puretone decibel loss of 71 and a speech discrimination ability of 88 percent correct in the right ear in June 1990 and had an average puretone decibel loss of 72 and a speech discrimination ability of 88 percent correct in the right ear in December 1991. Both of these combinations indicate Level III hearing acuity in the right ear. VA Form 10-2364, audiological evaluation, dated June 19, 1990, and VA Form 10-2364, audiological evaluation, dated December 23, 1991. As the evidence demonstrates that the November 1988 rating decision was clearly and unmistakably wrong in evaluating the appellant's service-connected hearing loss as being bilateral, when, in fact, it was only unilateral (right ear), the Board finds that the RO rectified its mistake in its July 1991 rating decision by assigning the proper noncompensable evaluation for the appellant's service-connected sensorineural hearing loss in the right ear. The Board has considered the testimony provided by the appellant at his November 1991 regional office personal hearing, but we do not find that this testimony, when considered with the other evidence of record, is supported by the other evidence so as to permit restoration of the 20 percent evaluation for his service- connected sensorineural hearing loss in the right ear. Therefore, we are unable to identify a basis to grant the benefit sought by the appellant in this case. ORDER Restoration of a 20 percent disability evaluation for sensorineural hearing loss in the right ear is denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.