BVA9507133 DOCKET NO. 93-13 938 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hearing loss of the left ear. 2. Entitlement to an increased (compensable) evaluation for hearing loss of the right ear. 3. Entitlement to an increased (compensable) evaluation for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active naval service from February 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of December 1990 by the Department of Veterans Affairs (VA) Seattle, Washington, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that service connection for hearing loss of the left ear is warranted as it is a result of the acoustic trauma to which he was exposed during active service. The veteran further asserts that compensable evaluations for hearing loss of the right ear and tinnitus are warranted because he has difficulty understanding others and he occasionally experiences ringing in his ears. Therefore, he requests favorable determinations by the Board. 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 supports the veteran's claim of entitlement to service connection for hearing loss of the left ear. It is further the decision of the Board, however, that the preponderance of the evidence is against the veteran's claims of entitlement to a compensable evaluation for hearing loss of the right ear and for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran sustained a hearing loss of the left ear during active service. 3. The veteran currently has a hearing loss disability of the left ear within the meaning of VA regulations which cannot be disassociated from the hearing loss shown during service. 4. The veteran has an organic hearing acuity of level I in the right ear. 5. Persistent tinnitus has not been demonstrated. CONCLUSIONS OF LAW 1. A hearing loss disability of the veteran's left ear was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1994). 2. The criteria for a compensable evaluation for hearing loss of the right ear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.85, 4.87, Diagnostic Code 6100 (1994). 3. The criteria for a compensable evaluation for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.87a, Diagnostic Code 6260 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to Service Connection for Hearing Loss of the Left Ear Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Before service connection may be granted for hearing loss, the hearing loss must be of a particular levelof severity. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores usisng the Maryland CNC Test are less than 94 percent. See 59 Fed. Reg. 60560 (1994). This is a recent amendment of 38 C.F.R. § 3.385 (1994), which formerly provided what did not constitute impaired hearing for VA benefit purposes. (Emphasis added.) However, the amendment is of no significance for purposes of this appeal. The service medical records indicate that the veteran underwent an audiometirc examination in January 1965, shortly prior to his entrance into active service. The report of this examination reveals that the pure tone air conduction threshold levels in the veteran's left ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were all 0 decibels. The veteran underwent another audiometric examination in November 1968, approximately two weeks prior to his separation from active service. The report of this examination indicates that the pure tone air conduction threshold levels, in decibels, in the veteran's left ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 0, 0, 5, 0, and 20 decibels, respectively. The report of an April 1991 VA audiometric examination reveals that at that time, the pure tone air conduction threshold levels in the veteran's left ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 25, 25, 35, 60, and 60 decibels, respectively. During his April 1992 personal hearing, the veteran testified that he served on an aircraft carrier during active service and that it was at that time that he was exposed to a great deal of noise. In particular, the veteran noted that he was exposed to noise from the flight decks of the launching and recovering areas, the firing from a gun tub, and the shipfitter's shop, on a regular basis. In addition, the veteran stated that he first noticed a decrease in his hearing acuity during service, especially when he spent time away from the aircraft carrier. The report of a July 1992 VA audiometric examination shows that the pure tone air conduction threshold levels in the veteran's left ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 20, 25, 40, 55, and 60 decibels, respectively, for a pure tone average of 40 dB. The veteran's speech recognition ability in his left ear was 100 percent. An impression of moderately severe bilateral high frequency sensorineural hearing loss with excellent discrimination was recorded. In addition, the examiner recommended that the veteran be considered for a hearing aid trial and fitting. The report of a November 1968 audiometric examination demonstrates that the veteran's left ear hearing acuity decreased during active service, although the impaired hearing then shown was not of a severe enough nature to constitute a "disability" as defined by VA regulations. See 38 C.F.R. § 3.385. The Board would point out, however, that VA's laws and regulations do not require in-service complaints or treatment for hearing loss in order to establish service connection for such a disorder. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). In fact, the United States Court of Veterans Appeals (Court) has held that: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.383. . . .For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The veteran experienced acoustic trauma during active service as a result of his duty on an aircraft carrier. In addition, there was an upward shift in tested thresholds in service with a significant increase at 4000 Hz, indicating a high frequency hearing loss. The Board notes that the typical audiogram of an ear in a noise-exposed worker will usually show a maximum loss at 4000 Hz. W. Dixon Ward, Ph.D., "Noise-Induced Hearing Damage," Chapter 45 at 1642 in Otolaryngology, Volume II (Michael M. Paparella et al eds., 3rd ed. 1991). A sensorineural hearing loss of the left ear of a severe enough nature to constitute a "disability" under the provisions of 38 C.F.R. § 3.385 was demonstrated during the most recent July 1992 VA audiological examination. Further, the hearing loss of the left ear shown at the end of service cannot be disassociated from the current hearing loss as there is no evidence of an intercurrent cause of the veteran's hearing loss. As such, service connection for hearing loss of the left ear is warranted. Finally, the Board notes that it has relied upon a medical text in connection with the veteran's claim. It is acknowledged that under procedures and practices currently being followed at the Board, such evidence would be made available to the veteran's representative for an opportunity to comment on that evidence. See 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.903 (1994); Thurber v. Brown, 5 Vet.App. 119, 126 (1993). Nevertheless, in consideration of the delay that would occur if strict compliance with those procedures and practices were followed, and in view of our complete allowance of the benefit sought on appeal, the Board finds that the veteran would not be adversely affected or prejudiced by being provided with a decision in his appeal as quickly as practicable. II. Entitlement to a Compensable Evaluation for Hearing Loss of the Right Ear As previously mentioned, the service medical records indicate that the veteran underwent an audiometric examination in January 1965, shortly prior to his entrance into active service. The report of this examination reveals that the pure tone air conduction threshold levels in the veteran's right ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were all 0 decibels. During a November 1968 audiometric examination, which was conducted approximately two weeks prior to the veteran's separation from active service, the pure tone air conduction threshold levels in the veteran's right ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 0, 0, 5, 25, and 30 decibels, respectively. The report of an April 1991 VA audiometric examination reveals that the pure tone air conduction threshold levels in the veteran's right ear for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 25, 25, 45, 60, and 60 decibels, respectively. During his April 1992 personal hearing, the veteran testified that due to his decreased hearing acuity, he is required to pay close attention to a person's face when he is being spoken to in order to understand what is being said. In addition, the veteran stated that he has difficulty understanding what is being said to him, especially if the speaker is a woman. The report of a July 1992 VA audiometric examination shows that the pure tone air conduction threshold levels in the veteran's right ear for the frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 35, 55, and 55, respectively, for a pure tone average of 41 dB. The veteran's speech recognition ability in his right ear was 100 percent. An impression of moderately severe bilateral high frequency sensorineural hearing loss with excellent discrimination was recorded. In addition, the examiner recommended that the veteran be considered for a hearing aid trial and fitting. In September 1992, a VA hearing officer determined that service connection for hearing loss of the right ear was warranted because a 30 decibel or greater loss of hearing acuity constitutes a hearing loss for VA purposes and that the veteran manifested such a loss during his active service. By decision in January 1993, the RO granted service connection for hearing loss of the right ear and assigned this disorder a noncompensable evaluation. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1994). Moreover, evaluations of 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 of 1,000, 2,000, 3,000, and 4,000 Hz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Codes 6100- 6110. Based upon the results of the July 1992 VA audiometric examination, the veteran has an organic hearing acuity of level I in the right ear. Under the criteria set forth in 38 C.F.R. § 4.85, Diagnostic Code 6100, a noncompensable evaluation is required for such an organic acuity hearing level. While the veteran may indeed experience some difficulty with his hearing in certain circumstances, his objective hearing deficit is not shown to be of such degree as to permit a compensable rating under the applicable standards. In reaching its decision, the Board has considered the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, the evidence discussed above does not suggest that the veteran's disability presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards and to warrant the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). For example, the veteran's disability has not required frequent periods of hospitalization or caused marked interference with employment. In view of the foregoing, the Board finds no basis for award of an increased rating for the veteran's service-connected hearing loss. III. Entitlement to a Compensable Evaluation for Tinnitus The service medical records, as well as the report of an April 1991 VA examination, do not contain any complaints, treatments, or diagnoses referable to tinnitus. During his April 1992 personal hearing, the veteran testified that he mostly experienced tinnitus when he was in quiet surroundings. During a July 1992 VA audiological examination, the veteran reported experiencing intermittent bilateral tinnitus that was high in pitch and annoying when it occurred. In September 1992, a VA hearing officer determined that service connection for tinnitus was warranted as the veteran had a service-connected hearing deficiency that was probably due to acoustic trauma. By decision in January 1993, the RO granted service connection for tinnitus and assigned this disorder a noncompensable evaluation pursuant to the provisions of 38 C.F.R. § 4.87a, Diagnostic Code 6260. Under this diagnostic code, a compensable evaluation of 10 percent is warranted with persistent tinnitus as a symptom of a head injury, concussion, or acoustic trauma. Based upon a thorough review of the evidence of record, the Board finds that the current noncompensable evaluation most accurately represents the veteran's disability picture. In this regard, the Board notes that the veteran has never maintained that he experienced tinnitus on a persistent basis, but rather, only on an intermittent one. Therefore, the preponderance of the evidence is against a compensable evaluation. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). However, the Board determines that there is no schedular basis for an increased evaluation for service-connected tinnitus. The Board further finds that the disability picture in this case is not so exceptional or unusual so as to warrant a compensable evaluation on an extra-schedular basis. For example, it has not been shown that the veteran's tinnitus has caused marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). ORDER Service connection for hearing loss of the left ear is granted A compensable evaluation for hearing loss of the right ear is denied. A compensable evaluation for tinnitus is denied. JACQUELINE E. MONROE 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.