BVA9506004 DOCKET NO. 93-12 244 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to an increased (compensable) evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from August 1942 to November 1945. This appeal arises from a December 1991 rating action that granted service-connection for left ear hearing loss with assignment of a noncompensable evaluation, and denied service connection for right ear hearing loss. The veteran's representative, in a statement in October 1993, raised the issues of entitlement to service connection for tinnitus and vertigo. These issues are not inextricably intertwined with the issues on appeal, have not been developed for appeal, and will not be considered by the Board of Veterans' Appeals (Board) at this time. The RO's attention is directed to the claim for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the RO erred in not finding that the evidence of record supports service connection for right ear hearing loss and a compensable rating for the left ear hearing loss. He reports being exposed to heavy shelling and bombing during service, as well as exposure to loud noise in the anti-aircraft artillery. He also asserts that he did not receive a hearing examination when discharged, and that his right ear had the worse hearing. 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 claim for entitlement to service connection for hearing loss, right ear, is not well-grounded, and that the preponderance of the evidence does not support a compensable evaluation for hearing loss, left ear. FINDINGS OF FACT 1. Right ear hearing loss was not demonstrated in service or for decades thereafter. 2. There is no objective medical evidence to associate the current right ear hearing loss, first demonstrated many years after service, with any incident of service. 3. The veteran has level II hearing in the service-connected left ear, and level I hearing in the nonservice-connected right ear. 4. The veteran has not submitted evidence tending to show that his left ear hearing loss presents an unusual disability picture with such factors as marked interference with work or frequent periods of hospitalization. CONCLUSION OF LAW 1. The appellant's claim for service connection for hearing loss, right ear, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A compensable evaluation for defective hearing, left ear is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. 4.85, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Right Ear In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. See Tirpak. In this case, the appellant has failed to submit medical evidence establishing the existence of defective hearing in the right ear in service, or any objective medical evidence that the post-service defective hearing in the right ear is related to service. The available service medical records for the veteran include the August 1942 induction examination, a dental record, and the report of physical examination prior to discharge, dated in November 1945. The 1942 induction examination showed the veteran's hearing to be 20/20, each ear. The 1945 discharge examination showed whispered voice hearing to be 15/15 in the right ear and 5/15 in the left ear. There were no other abnormal physical findings for the ears. The veteran filed for VA dental benefits in 1953. In September 1980 he filed a claim for pension benefits, and indicated that the claim was based on pulmonary tuberculosis. An accompanying medical statement from a private physician confirmed the pulmonary tuberculosis. There was no reference to defective hearing either by the veteran or the physician. The veteran underwent VA ear, nose and throat (ENT) and audiometric examinations in June 1992. In the ENT examination it was noted that the veteran had a history of hearing loss progressive over the last 10 years. The examination assessment was bilateral sensorineural hearing loss. Received in support of the veteran's claim in October 1992 was a copy of a private audiometric examination performed in September 1992, and a statement from T. Killian, M.D., dated in October 1992. Dr. Killian reported following the veteran since 1971 for tinnitus, hearing loss and vertigo. An overview of the September 1992 audiometric examination was provided, noting that the veteran had a "moderate severe hearing loss," greater in the right ear than the left. Hearing testimony was provided by the veteran before the RO hearing officer, in February 1993. A transcript of that hearing is included in the claims folder. The veteran reported that his right ear hearing loss was worse that his left (page 2), and that he first became aware of a hearing problem in 1954-55, manifested by an aching in the ear and decreased hearing (pages 3&4). In regard to post-service noise exposure, he noted that he was a manager of an auto body shop, but was never out in the shop much (page 4). The veteran also stated that he did not recall a hearing test when released from the service, and introduced notarized statements from service buddies to that effect (page 6). Finally, the veteran reported procuring his unit morning reports, and that they show that he was exposed to heavy shelling during service. Received at the time of the hearing in February 1993, were 2 notarized statements, from D. Taylor, and W. Buckner. These statements were to the effect that when discharged on the same day as the veteran in November 1945, no physical examination was given. The Board does not dispute that the veteran was exposed to heavy shelling and loud noises associated with his artillery duties during service; however, noise exposure itself does not provide a basis for service connection for hearing loss shown decades after service. Available service medical records do not show a hearing loss for the right ear in service. In regard to the veteran's testimony and supporting statements concerning lack of medical examination at separation in November 1945, there is nothing in the record to suggest that the November 1945 separation examination report for the veteran is not authentic or pertains to another veteran. The report contains specific data such as the veteran's weight, height, pulse rate, and blood pressure. For the report to have been prepared and signed by an Army medical officer without benefit of some type of examination seems highly unlikely. Therefore, the report is considered to be more credible than the statements and testimony that no examination was given. However, clearly, the hearing test was only a voice test and not one with audiometric testing equipment. The test results formed the basis for the RO's grant of service connection for left ear hearing loss. The Board finds the November 19, 1945, examination report to be probative of the issue at hand. There is no requirement that the veteran's right ear hearing loss be shown in service, but there must be evidence tending to show a nexus between the current right ear hearing loss and his active military service. While he reports first noticing a hearing loss in the mid 1950's, that was approximately a decade after service and the first medical reference to a hearing loss is many years later, in 1971, as reported by Dr. Killian. Further, the October 1992 statement from Dr. Killian did not address the etiology of the right ear hearing loss and in no way tends to show or suggest that it is the result of acoustic trauma or otherwise related to the veteran's World War II service. The other medical evidence of record, audiometric test results from 1992, also fails to provide any link between the right ear hearing loss and any incident of service. As there is no competent evidence tending to show right ear hearing loss during or in proximity to service or tending to link the current hearing loss with events of service, the claim is not well grounded. The veteran himself is not shown to possess the medical expertise to determine the etiology of his right ear hearing loss or it's relationship to service, and his claims of medical causation are of limited probative value. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Having not made evidentiary assertions establishing a plausible basis entitling him to service-connection, he has failed to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991). If the veteran were to submit evidence tending to relate his current right ear hearing loss to service, his claim would be well grounded. Left Ear An allegation of increased disability establishes a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Evaluations of unilateral defective hearing range from zero percent to 10 per cent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold 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 for defective hearing, the revised rating schedule establishes 11 auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and veteran does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. A zero percent evaluation is assigned if hearing in the better ear is at level I and the other ear is at level IX or better. A 10 per cent evaluation is assigned if the better ear is at level I and the other ear is at level X or worse. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 4.85, Table VII, Diagnostic Codes 6100 to 6101. The nonservice-connected right ear is considered the "better" ear for rating purposes, even though the veteran has somewhat greater hearing loss in that ear than in the left. As reported above, the 1945 discharge examination showed whispered voice hearing to be 5/15 in the left ear. VA audiometric examination in June 1992 showed pure tone thresholds for the left ear to be 50, 55, 60, and 60 decibels at 1000, 2000, 3000, and 4000 hertz, respectively. The pure tone threshold average for the left ear was 56 decibels, and speech recognition was 84 percent. These figures, under 38 C.F.R. § 4.85, Table VI (1994), translate to a numeric designation of level II hearing impairment for the left ear. In situations where service connection has been granted only for hearing loss involving one ear, the hearing acuity of the other ear is considered to be normal and assigned a level I designation. A zero percent evaluation is assigned where the hearing in the service-connected ear is at level II, and the other ear is at level I. 38 C.F.R. § 4.85, Diagnostic Code 6100. In regard to the private audiometric examination provided the veteran in September 1992, the Board notes that Dr. Killian indicated in his statement of October 1992 that for the left ear there was a 35.6 percent loss, and there was a possibility of a fluctuating audiology problem. In regard to these results, it is not shown from the evidence submitted by Dr. Killian that he tested the veteran's hearing using the Maryland CNC word list as is used by the VA and is required for proper utilization of the rating schedule criteria for hearing loss. However, even if the private test scores were used, a zero percent rating would apply. The September examination showed a left ear pure tone average of 58 decibels for the 1000, 2000, 3000, and 4000 hertz range, and a speech reception threshold of 55 decibels and discrimination of 68 percent. Using the discrimination score in place of the speech recognition score utilized by the VA, the figures translate to a numeric designation of level V hearing impairment for the left ear. A zero percent evaluation is assigned where the hearing in the service-connected ear is at level V, and the other ear is at level I. Hearing in the service-connected ear would have to be at level X or XI, considerably worse than the veteran's left ear hearing, for a 10 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has given appropriate consideration to the fact that the veteran does use a hearing aid; however, the rating criteria contemplate the use of assistive devises in increasing hearing acuity 38 C.F.R. § 4.86 (1994). The veteran's representative, in a written presentation dated in October 1993, opined that the veteran's disability more nearly approximated the criteria require for a rating under Diagnostic Code 6204. The Board points out that inasmuch as service connection has not been established for chronic labyrinthitis, that diagnostic code is not for application. 38 C.F.R. § 3.321 In exceptional cases where the schedular standards are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran has not submitted evidence tending to show that the disability caused by his left ear hearing loss is unusual or that it causes marked interference with work or requires frequent periods of hospitalization as to warrant an extraschedular increased evaluation. Id. ORDER Having found the claim for service connection for hearing loss, right ear, not to be well-grounded, the claim is dismissed. A compensable rating for hearing loss, left ear, is denied. JANE E. SHARP Member, Board of Veterans' Appeals (Continued on next page) 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.