BVA9502997 DOCKET NO. 92-10 104 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. Entitlement to an increased rating for a diaphragmatic hernia, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Colorado Department of Social Services WITNESSES AT HEARING ON APPEAL Appellant and appellant's daughter ATTORNEY FOR THE BOARD Heather J. Harner, Associate Counsel INTRODUCTION The veteran served on active duty from November 1948 to May 1952. This appeal to the Board of Veterans' Appeals (Board) arises from a June 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 1993, the case was remanded by the Board for further development. Following the completion of such development, the case has been returned to the Board for adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. He avers that exposure to loud noise during wartime combat and particularly the explosion of a grenade near his head caused his current hearing loss and tinnitus. He further contends that his diaphragmatic hernia is more disabling than currently evaluated. He asserts that he experiences difficulty eating and sleeping and that the hernia causes him to vomit often. 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 entitlement to service connection for bilateral hearing loss and tinnitus and entitlement to an increased rating for a diaphragmatic hernia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Neither bilateral hearing loss nor tinnitus was present in service, and bilateral sensorineural hearing loss was not manifested within one year of discharge from active duty. 3. The veteran's current bilateral hearing loss and tinnitus are not attributable to service. 4. The veteran's diaphragmatic hernia is productive of recurrent epigastric distress with dysphagia and regurgitation but does not considerably impair his health. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service, nor may bilateral sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 3. A rating in excess of 10 percent for a diaphragmatic hernia is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Code 7346 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran's claims are well grounded. By this, we mean that he has submitted claims which are plausible. We further conclude the VA has met its statutory duty to assist the veteran in the development of his claims, and that no further assistance is required to satisfy the provisions of 38 U.S.C.A. § 5107 (West 1991). Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection for hearing loss may be established by demonstrating that the disability was first manifested or became worse during service or that a sensorineural hearing loss because manifest to a degree of 10 percent or more within one year following the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The first clinical evidence of bilateral hearing loss contained in the veteran's claims file is a report of VA audiometric testing dated in March 1990. The veteran's service medical records are negative for complaints or findings of hearing loss or tinnitus. According to the reports of the veteran's medical examinations conducted at entrance into service in December 1948 and upon discharge from service in May 1952, the veteran exhibited normal hearing acuity bilaterally (15/15) as measured by the whispered voice test. The report of a March 1953 VA examination for purposes of compensation does not contain a diagnosis of hearing loss. No complaints of either hearing loss or tinnitus are recorded on any of the clinical reports or among any of the veteran's contentions to the VA regarding other physical disabilities. In his hearing testimony, both the veteran and his daughter, who is a registered nurse, testified that he has had difficulty hearing and buzzing in his ears since he returned from service. The veteran stated that he had worked as a carpenter but that he felt carpentry work did not involve exposure to a high volume of noise. We find the veteran's description of his symptoms credible. However, we cannot accept his explanation of the cause of his hearing loss and tinnitus as he is not a medical expert qualified to identify the etiology of his disability. Even though the veteran's daughter is a registered nurse, she was a small child when the veteran returned from the service. She has described the veteran's symptoms of hearing loss and his complaints of tinnitus but has not provided a reasonable basis for attributing the veteran's hearing loss and tinnitus to service rather than to any intervening events. We must accord more probative value to the contemporaneous hearing tests of record and the absence of any complaints regarding hearing loss or tinnitus in his medical records from the time period following service. The veteran's claims file contains no evidence, other than his own contentions, of the existence of bilateral hearing loss or tinnitus prior to the date of the instant claim. The veteran has not presented any objective medical evidence which relates his current hearing loss or tinnitus to service. Moreover, as he has not presented any objective medical evidence that a bilateral sensorineural hearing loss manifested to a compensable degree within one year of discharge, we have no basis to presume that bilateral hearing loss was incurred in service. We cannot reasonably attribute current hearing loss and tinnitus to any incident in service rather than to possible intercurrent causes, such as acoustic trauma or natural aging. In summary, the requisite nexus of any current hearing loss or tinnitus to service is not demonstrated. The preponderance of the evidence is against the veteran's claims and therefore service connection for hearing loss and tinnitus must be denied. Entitlement to an increased rating for a diaphragmatic hernia, currently rated as 10 percent disabling. While in service, the veteran sustained a gunshot wound to the chest during combat. Service connection for a diaphragmatic hernia secondary to the gunshot wound was granted by rating decision of November 1990. A 10 percent disability rating is now in effect for this disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). When 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). The regulatory rating schedule provides that a hiatal hernia characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health will be rated as 30 percent disabling. A hiatal hernia with two or more of the symptoms for the 30 percent rating but of lesser severity will be rated as 10 percent disabling. 38 C.F.R. § 4.114 (1994). The veteran testified at the personal hearing that he must eat very slowly and chew his food thoroughly and take both nitroglycerin and Tagamet on a regular basis to cope with his hernia. He also testified that he vomits almost every time he eats and he often wakes up at night. The veteran's daughter corroborated these statements in her testimony. The report of a VA examination conducted for purposes of compensation in December 1993 shows that the veteran was well appearing and in no acute distress at the time of the examination. The veteran denied any heartburn or weight loss. Barium X-ray testing revealed the veteran's upper esophagus is normal. He has a thick lower esophageal ring, which measured 9 to 10 millimeters by 1 centimeter in greatest width above a direct hiatal hernia of the short esophagus type. The diagnosis was of a traumatic diaphragmatic injury with direct hiatus hernia with an esophageal ring. VA outpatient treatment reports dated between June 1991 and October 1993 show the veteran complained of discomfort and difficulty swallowing several different times during that period. We accept the veteran's hearing testimony regarding his symptoms insofar as the testimony comports with the outpatient treatment reports and the findings recorded on the December 1993 VA examination report. The Board holds that the criteria for the 10 percent disability rating more accurately describes the level of impairment caused by the veteran's disorder. The hernia is productive of recurrent epigastric distress with dysphagia and regurgitation which requires the veteran to observe some lifestyle changes: taking medication, eating slowly, etc. However, there is no evidence that the hernia has caused impairment of the veteran's health. Most of the outpatient treatment reports contained in the claims file regard treatment for other unrelated disabilities. The VA examiner found the veteran to be well appearing, and the veteran himself complains of no heartburn or weight loss. Given the veteran's current disability picture, a rating in excess of 10 percent is not warranted. A basis for a higher schedular evaluation is not shown. Consideration has also been given to 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 (1991). In particular, we find that the evidence discussed above does not suggest that the veteran's diaphragmatic hernia presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1994). For example, the disability does not require frequent periods of hospitalization, nor does it present marked interference with employment that is not already contemplated by the current evaluation. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss and tinnitus is denied. Entitlement to a disability rating for a diaphragmatic hernia in excess of 10 percent is denied. J. U. JOHNSON 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.