BVA9505220 DOCKET NO. 92-07 880 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right wrist (major). 2. Entitlement to an increased (compensable) evaluation for hearing loss. ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from February 1961 to February 1964, from May 1965 to May 1969, and from April 1970 to October 1977. The appeal arises from a September 1991 rating decision in which the Regional Office (RO) granted service connection for residuals of a fracture of the right wrist and bilateral hearing loss. The RO also assigned noncompensable evaluations for both disabilities and denied a compensable evaluation under the provisions of 38 C.F.R. § 3.324 (1994). The veteran filed an appeal in November 1991. The Board remanded the case in September 1992. The case is now ready for appellate review. Also, it appears that the veteran may be raising the issue of entitlement to service connection for otitis media. Inasmuch as this issue has not been developed for appellate consideration on this appeal, and is not inextricably intertwined with the issues on appeal, the matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that an increased evaluation is warranted for the residuals of a fracture of the right wrist. He also maintains that his hearing loss is growing worse. The veteran essentially contends that his hearing loss has interfered with his job. 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 claims for entitlement to increased evaluations for residuals of a fracture of the right wrist and hearing loss. It is also the decision of the Board that the record supports a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. Residuals of a fracture of the right wrist are productive of no pain on motion and no limitation of motion, and the residuals are minimal. 3. Hearing loss disability is manifested by an average pure tone threshold at 1,000, 2,000, 3,000 and 4,000 hertz of 43 decibels in the right ear and 48 decibels in the left ear. Speech discrimination ability is 88 percent in the right ear and 84 percent in the left ear. 4. Neither the veteran's right wrist disability nor his hearing loss presents an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. 5. The veteran's service-connected disabilities, which are not of a compensable degree, interfere with normal employability. CONCLUSIONS OF LAW 1. The criteria for a compensable schedular evaluation for residuals of a fracture of the right wrist are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.31, Part 4, Diagnostic Code 5215 (1994). 2. The criteria for a compensable schedular evaluation for hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 6100 (1994). 3. The criteria for a 10 percent evaluation for the veteran's service-connected disabilities are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.324 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the claims for entitlement to increased evaluations for residuals of a fracture of the right wrist and hearing loss are "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claims are plausible, meritorious on their own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to the veteran's claims. 38 U.S.C.A. § 5107. Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the current state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. § 4.10. Also, 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. The history of the veteran's right wrist disability may be briefly described. The service medical records show the veteran complained of having twisted his right wrist in April 1970. Examination revealed slight swelling but good range of motion. A service medical record dated in April 1977 shows that the veteran complained of pain in the right wrist. There was no swelling. However, there was some erythema on the elbow or wrist and some discomfort in the wrist joint with forced extension. The assessment was tendonitis. At the separation medical examination in September 1977, the veteran complained of occasional aches in the right wrist in cold weather. However, clinical evaluation of the upper extremities and the musculoskeletal system was normal. Significantly, the veteran has reported no medical treatment for right wrist complaints since service. The residuals of a fracture of the right wrist are evaluated under Diagnostic Code 5215. Under that Diagnostic Code, a 10 percent evaluation is warranted when dorsiflexion of the wrist is less than 15 degrees or when palmar flexion of the wrist is limited in line with the forearm. 38 C.F.R. Part 4. The most probative evidence in evaluating the current severity of the veteran's right wrist disability is recent medical evidence, in this case the report of the VA examination performed in August 1991. At the August 1991 VA examination, the veteran reported that his wrist ached in cold weather. Significantly, examination revealed full range of painless motion of the right wrist. X-rays of the right wrist which were associated with the examination revealed non-union of the ulnar styloid fracture and minimal narrowing of the radial carpal joint. The diagnosis was minimal residuals of an old fracture of the right wrist. Thus, there is no limitation of motion of the right wrist and the criteria for a compensable schedular evaluation are not met. 38 C.F.R. Part 4, Diagnostic Code 5215. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. With regard to the veteran's defective hearing, the Board notes that issue regarding hearing loss was developed on appeal as entitlement to an increased (compensable) rating for right ear hearing loss. However, in the September 1991 rating decision, the RO clearly granted service connection for bilateral hearing loss. Moreover, the RO has evaluated the veteran's hearing loss on the basis of bilateral hearing loss. Evaluations of the veteran's service-connected hearing loss 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 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from bilateral defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. Part 4, Diagnostic Codes 6100-6110. The history of the veteran's defective hearing must be considered in light of the fact that the criteria for evaluating hearing loss disability were changed in December 1987. Under the criteria in effect at the time, the measurements recorded on reports of service separation examinations in December 1963, April 1969 and September 1977 were consistent with the criteria contemplated for a noncompensable evaluation. The most probative evidence in determining the current severity of the veteran's service-connected hearing loss disability are the results of recent VA examinations. At a VA examination in August 1991, the veteran's speech recognition ability was 80 percent in the right ear and 84 percent in the left ear. The average pure tone threshold at 1,000, 2,000, 3,000 and 4,000 hertz was 46 decibels in the right ear and 48 decibels in the left ear. Even more probative are the results of a VA examination in April 1992. At that time, the veteran's speech discrimination ability was 88 percent in the right ear and 84 percent in the left ear and the average pure tone threshold at 1,000, 2,000, 3,000 and 4,000 hertz was 43 decibels in the right ear and 48 decibels in the left ear. Where the pure tone threshold average in one ear is 43 or 46 decibels with speech recognition ability of 88 or 80 percent (level II or III, respectively) and in the other ear, the pure tone threshold average is 48 with speech recognition of 84 percent (level II), a noncompensable evaluation is assigned for the veteran's bilateral defective hearing. 38 C.F.R. Part 4, Diagnostic Code 6100. While the veteran contends that his defective hearing has become worse, a compensable schedular evaluation for that disability is not warranted. Disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). With regard to the veteran possibly having to wear hearing aids in the future, the Board points that the rating schedule has been designed to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. The Board has also considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but finds that they do not provide a basis upon which to grant separate compensable evaluations for the veteran's right wrist and hearing loss disabilities. For example, when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b). However, there is no evidence that either residuals of a fracture of the right wrist or hearing loss has caused marked interference with employment or that either disability has required frequent hospitalizations. Significantly, recent VA outpatient treatment records show no treatment for residuals of a fracture of the right wrist. Therefore, an extra-schedular evaluation for either residuals of a fracture of the right wrist or bilateral hearing loss is not warranted. 38 C.F.R. § 3.321(b). Also, whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of a compensable degree under the VA Schedule for Rating Disabilities, a 10 percent evaluation is warranted. 38 C.F.R. § 3.324. In his substantive appeal, the veteran related that he uses the phone all day in his job. He reported that he has had to start listening with his left ear on the phone and has had to use a higher volume than in the past. Under the circumstances, the Board finds that the veteran's service-connected disabilities interfere with normal employability. Therefore, a 10 percent evaluation under 38 C.F.R. § 3.324 is warranted. Finally, when after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, the preponderance of the evidence is against the veteran's claims for entitlement to increased evaluations for residuals of a fracture of the right wrist and hearing loss. ORDER Increased evaluations for residuals of a fracture of the right wrist and hearing loss are denied. A 10 percent under 38 C.F.R. § 3.324 is granted, subject to the provisions governing the award of monetary benefits. U. R. POWELL 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.