BVA9501030 DOCKET NO. 93-06 653 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased disability rating for bilateral hearing loss, currently evaluated as non-compensably disabling. 2. Entitlement to an increased disability evaluation for otitis media of the left ear, currently evaluated as non-compensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from May 1943 to September 1945. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1991 rating decision of the Boston, Massachusetts, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected hearing loss and otitis media disabilities are of sufficient severity to warrant a compensable disability 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 entitlement to a compensable disability evaluation for bilateral hearing loss and otitis media of the left ear is not warranted. However, it is also the decision of the Board that a 10 percent disability evaluation is warranted for the above multiple non-compensable service-connected disabilities. FINDINGS OF FACT 1. The appellant's service-connected bilateral hearing loss disability is currently manifested by subjective complaints of poor hearing and impaired speech discrimination, and is productive of only mild bilateral hearing loss on audiological examination. 2. The appellant's service-connected otitis media of the left ear is manifested by a scarred and retracted left tympanic membrane with mild hearing loss, absent clinical findings for suppurative processes. 3. The appellant's bilateral hearing loss and otitis media are of such character as to clearly interfere with normal employability in view of poor speech discrimination scores, the required use of two hearing aids, and the contentions of the appellant. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable disability evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, Diagnostic Code 6100 (1993). 2. The schedular criteria for a compensable disability evaluation for otitis media of the left ear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, Diagnostic Code 6100, 6200 and 6201 (1993). 3. The criteria for a 10 percent disability rating for multiple non-compensable service-connected disabilities of such character as clearly to interfere with normal employability are shown. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background A review of the record reflects that the appellant sustained an auditory injury from an artillery cannon fired in close proximity to the appellant's left ear during service. At that time the appellant's ear condition was manifested by mild hearing loss and a suppurative discharge. By rating action dated in April 1946, he was service connected for hearing loss at the non-compensable disability level and otitis media at the 10 percent disability level. By rating action dated in September 1951, the appellant's service-connected bilateral hearing loss and otitis media of the left ear were evaluated as non-compensably disabling. At this time, the appellant's auditory condition was manifested by mild hearing loss, absent a suppurative discharge. In April 1989, a VA examination was conducted. The appellant complained of poor hearing and impaired speech discrimination. Clinical findings indicated that the ear canals and drums were within normal limits. The average puretone decibel (dB) loss average was 44dB in the right ear and 56dB the left ear. The percent of speech discrimination was 86 percent in the right ear and 88 percent in the left ear. The appellant was diagnosed with bilateral hearing loss, right sensorineural and left mixed type. In February 1991, at the request of the appellant, another VA examination was conducted. The appellant complained of poor speech discrimination. Clinical findings noted that the right and left ear canal were clear. They further noted that the right ear drum was intact, and that the left ear drum was scarred, retracted, and immobile. An audiological study revealed an average puretone decibel loss of 46dB in the right ear with 86 percent discrimination, and 54dB in the left with 78 percent discrimination. The appellant was diagnosed with bilateral hearing loss and residuals of otitis media manifested by a scarred and retracted left tympanic membrane. Private outpatient treatment reports dated October 1990 to February 1992 reflect that the appellant was seen for his auditory condition. In October 1990, a private audiological examination indicated the presence of high frequency sensorineural hearing loss in the right ear and moderate to severe mixed hearing loss of the left ear with very small air bone gaps. The appellant reportedly had two hearing aids from the VA hospital. An audiological study dated in November 1991 revealed average puretone decibel loss of 48 dB for the right ear and 55dB for the left ear with discrimination of 92 percent bilaterally. Private outpatient treatment report dated in February 1992 reflects that the right ear was normal on examination, but noted that the left ear had an anterior perforation with adhesions between the drum and promontory. It was further noted that the left ear was dry and free of any infection. Analysis The appellant seeks a compensable disability evaluation for his service-connected bilateral hearing loss and otitis media of the left ear. In evaluating the appellant's request for an compensable rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). After having reviewed the relevant medical evidence in accordance with 38 C.F.R. § 4.1 (1993) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), the Board is of the opinion that the appellant is appropriately rated for his service-connected bilateral hearing loss and otitis media of the left ear at the non-compensable disability level under diagnostic codes 6100, 6200 and 6201. However, the Board is also of the opinion that the appellant's bilateral hearing loss and otitis media are of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree, to warrant a 10 percent rating. The Schedule for Rating Disabilities provides for a non- compensable disability evaluation for both mild hearing loss and non-suppurative otitis media with mild hearing loss. 38 C.F.R. Part 4, Diagnostic Codes 6100, 6200 and 6201 (1993). The objective medical evidence of record supports a non-compensable disability evaluation for both bilateral hearing loss and otitis media of the left ear. VA audiological studies performed in April 1989 and February 1991, as well as on a private audiological evaluation dated November 1991, reveal mild hearing loss under the applicable VA law and regulations. VA audiological study in February 1991 shows the numeric designation of hearing impairment in the right (better) ear is II, and in the left ear is IV. 38 C.F.R. § 4.85(a) (1993). The percentage evaluation provided by the schedule is 0. 38 C.F.R. § 4.85(b) (1993). Similarly, on private audiological evaluation in November 1991, the numeric designation of hearing impairment in the right (better) ear is I, and in the left ear is I. 38 C.F.R. § 4.85(a) (1993). The percentage evaluation provided by the schedule is again 0. 38 C.F.R. § 4.85(b) (1993). In view of objective evidence of only mild hearing loss, the Board finds that a compensable rating for bilateral hearing loss and non-suppurative otitis media is not warranted. 38 C.F.R. §§ 4.85, 4.87a, Diagnostic Code 6100 and 6201. Furthermore, in the absence of objective medical evidence of suppurative processes of the left ear, the Board finds that a compensable rating for suppurative otitis media under diagnostic code 6200 is not warranted. 38 C.F.R. § 4.87a, Diagnostic Code 6202 (1993). While the medical evidence reflects that the appellant has mild bilateral hearing loss and otitis media of the left ear, as evidenced by scarring and retraction, it does not establish the presence of a compensable disability as required for an evaluation under diagnostic codes 6101-6110 (moderate-severe impairment of hearing), diagnostic code 6210 (disease of the auditory canal), or diagnostic codes 6200-6210 (generally, other diseases of the ear) in view of the absence of clinical evidence for swelling, dry and scaly or serous discharge, itching, frequent and prolonged treatment, dizziness, suppuration, or growths in the ear. However, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the Board finds that the appellant's bilateral hearing loss and otitis media are of such character as to clearly interfere with normal employability in view of poor speech discrimination scores, the required use of two hearing aids, and the contentions of the appellant. Therefore, the undersigned concludes that a 10 percent disability evaluation for multiple non-compensable service-connected disabilities is warranted. 38 C.F.R. §§ 3.321(b), 3.324 (1993). Additionally, while the record shows that the appellant has requested a new medical examination, the Board finds that a new examination is not warranted in view of audiological examinations conducted by both the VA and a private practitioner of the appellant's choice which are relatively recent and provide adequate information for the purposes of determining the current disability picture. Accordingly, the Board concludes that a compensable disability rating for bilateral hearing loss and otitis media of the left ear is not warranted, but a 10 percent disability rating is warranted for multiple non-compensable service-connected disabilities. ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to a compensable disability rating for otitis media of the left ear is denied. A 10 percent disability rating for multiple non-compensable service-connected disabilities is granted. C.P. RUSSELL 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.