BVA9505797 DOCKET NO. 93-11 015 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss. 2. Entitlement to an effective date earlier than July 25, 1991, for the assignment of a 10 percent disability rating for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from April 1971 to June 1983. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Los Angeles, California, Regional Office (hereinafter RO). This appeal is limited to the issues set forth on the title page. Rating actions have been undertaken denying service connection for some other disorders. Appeals as to the other issues have not been perfected and as such, no action will be taken by the Board on those claims at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has difficulty understanding conversation when he is listening to the radio, watching television or is turned the wrong way. Accordingly, he contends that he is entitled to a compensable evaluation for bilateral hearing loss. He also expressed disagreement with the effective date of a 10 percent disability rating assigned for tinnitus, as he claims that he had significant problems associated with this disability many years earlier. 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 veteran's claims for an increased rating for bilateral hearing loss and an earlier effective date for a 10 percent rating assigned for tinnitus. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Hearing acuity is at level I in both ears. 3. A claim for an increased rating for tinnitus was received on July 25, 1991. 4. It was not factually ascertainable that the veteran had persistent symptoms caused by tinnitus prior to July 25, 1991. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.87, Diagnostic Codes (DC) 6100-6110 (1994). 2. The criteria for an effective date for a 10 percent evaluation for tinnitus earlier than July 25, 1991, are not met. 38 U.S.C.A. § 5110(a),(b)(2) (West 1991); 38 C.F.R. §§ 3.157(b)(1),(2),(3), 3.400(o)(2) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication that there are other records available that would be pertinent to the veteran's appeal. 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Entitlement to an Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. 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 veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the ratings schedule, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on 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 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes 11 auditory levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87 and DC 6100 through DC 6110. The following is a summary of the clinical history involving the veteran's hearing loss. The veteran complained about an ear ache during service in November 1981 and left otitis media was diagnosed in January 1981. The veteran reported at the time of his April 1983 separation examination that he had been exposed to hazardous noise and it was indicated that a previous audiogram had revealed bilateral high frequency sensorineural hearing loss. Audiometric testing was interpreted as showing bilateral moderate to profound high frequency sensorineural hearing loss. After service, the veteran was afforded a VA audiometric examination in January 1984. The average pure tone thresholds were recorded at 3 decibels in the right ear and 5 decibels in the left ear. The veteran's speech discrimination ability was recorded at 100 percent correct in each ear. Constant tinnitus was reported to be present at the time of the examination. A March 1984 rating decision established service connection for bilateral high frequency hearing loss. A noncompensable evaluation was assigned. Another VA audiological examination conducted in April 1989 showed average pure tone thresholds at 25 in the right ear and 36 in the left ear. Speech discrimination was 94 percent correct in both ears. A VA examination completed in June 1991 indicated the veteran's hearing was essentially unchanged since April the 1989 evaluation. Impressions were taken for hearing aids, and it was indicated on a July 1991 VA outpatient treatment report that a hearing aid in the left ear was performing satisfactorily. The most recent VA examination audiometric report of record is dated in October 1991. The recorded pure tone thresholds for the right ear at that time were 5 decibels at 1,000, 2,000, and 3,000 Hz, and 50 at 4000 Hz. The recorded pure tone thresholds in the left ear were 5 decibels at 1,000 and 2,000 Hz, 30 decibels at 3,000 Hz and 65 decibels at 4,000 Hz. The average pure tone thresholds were 14 decibels for the right ear and 25 decibels for the left ear. Speech discrimination ability was recorded at 96 percent correct in both ears. Moderate sensorineural hearing loss was noted in the right ear. The loss in the left ear was described as mild to moderate. In evaluating the level of disability associated with the service connected bilateral hearing loss, the Board will apply the relevant law and regulations cited above to the findings from the most recent VA examination, conducted in October 1991. Francisco v. Brown, 7 Vet.App. 55 (1994). Under the relevant regulations, a noncompensable rating is for assignment where the pure tone average threshold in one ear is 14 decibels, with speech discrimination ability of 96 percent correct (Level I); and, in the other ear, the pure tone threshold average is 25 decibels, with speech discrimination ability of 96 percent, (Level I). 38 C.F.R. §§ 4.85, 4.87, DC 6100. The audiology results just referenced represent the most current objective assessment of the veteran's hearing acuity contained in the record. Weighing this objective "negative" evidence against the subjective "positive" evidence, which is limited to the veteran's assertion that the level of disability caused by his hearing loss represents a more severe disability than is shown by the clinical evidence of record, the Board concludes that the probative weight of the "negative" evidence is greater than the weight of the "positive" evidence of record. Therefore, a compensable disability rating for bilateral hearing loss under the ratings schedule is not warranted. Gilbert, 1 Vet. App. at 49. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected bilateral hearing loss is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. II. Entitlement to an Earlier Effective Date for the Assignment of a 10 Percent Disability Rating for Tinnitus The effective date of an award of increased compensation shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if application for benefits is received within one year of such date; otherwise, it is the date of receipt of claim. 38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o)(2) (1994). Reports from a VA or service department examination or hospitalization showing treatment for a service-connected disability may be considered to be informal claims for an increased rating for that disability. The date of such treatment will be accepted as the date of receipt of claim. Otherwise acceptable evidence from private physicians and government hospitals may be considered to be informal claims for increased disability ratings; with the date of receipt of such evidence being accepted as the date of receipt of the informal claim. 38 C.F.R. § 3.157(b)(1),(2),(3). The evidence relevant to this claim is as follows. Service connection for tinnitus was established by a May 1989 rating decision. A noncompensable evaluation was assigned. The veteran had reported that the tinnitus was only periodic. Tinnitus must be persistent to warrant a 10 percent rating. 38 C.F.R. Part 4, Code 6260. On July 25, 1991, the veteran submitted a VA Form 21-4138 (Statement in Support of Claim) reporting that his "[h]earing and [n]asal/[s]inus conditions" were increasing in severity, necessitating hearing aids an possibly requiring surgery in the future. Accordingly, the veteran requested an increased disability rating for these conditions. A March 1992 rating decision increased the disability rating for tinnitus to 10 percent disabling, effective from July 25, 1991. This increase was apparently based on a report from an October 1991 VA examination in which the veteran indicated that he had been suffering from "constant" tinnitus. For the veteran to be entitled to an earlier effective date for the 10 percent disability rating assigned for tinnitus, there would have to be some clinical evidence contained in the claims file that could be reasonably construed as an informal claim for an increased rating dated after May 1989, when service connection for tinnitus was established, and before July 25, 1991. The clinical evidence of record during this period showed treatment for nasal congestion diagnosed as allergic rhinitis and hypertrophied turbinates according to VA outpatient treatment records dated in May, July and October 1990 and January, March and April of 1991. VA Audiometric evaluations conducted in June and July 1991 do not include any references to tinnitus. (See, e.g., report from June 1991 VA Audiometric examination in which the veteran denied any "physical problems with his ears.") In his original claim the veteran sought service connection for defective hearing. At the time of a 1984 examination, an incidental finding of constant tinnitus was noted. No claim had been filed as to that disorder, and no consideration was given in the rating action that granted service connection for defective hearing. At the time service connection was granted for tinnitus, it was not noted to be persistent. Constant tinnitus was found, most recently, after the July 1991 claim for an increased rating was received. Because there is no evidence of treatment or symptoms of tinnitus after May 1989 and before July 25, 1991, no clinical record from this period of time can be considered to be an informal claim for an increased rating for tinnitus. As it is not factually ascertainable that an increase in disability due to tinnitus occurred before July 25, 1991, an earlier effective date for the 10 percent disability rating assigned at that time is not warranted. ORDER Entitlement to an increased (compensable) rating for bilateral hearing loss is denied. Entitlement to an earlier effective date for the assignment of a 10 percent disability rating for tinnitus is denied. MICHAEL D. LYON 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.