BVA9502811 DOCKET NO. 93-06 007 ) 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 a bilateral hearing loss. 2. Entitlement to an increased (compensable) evaluation for allergic rhinitis and sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from January 1972 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) from an April 1992 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for a bilateral hearing loss and a compensable evaluation for allergic rhinitis and sinusitis. During the course of the appeal the veteran appears to have raised the issue of entitlement to service connection for headaches, which has not previously been adjudicated. This claim is referred to the regional office for appropriate development and adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he noticed a significant and noticeable decrease in his hearing during his service in the Air Force, which causes him to have difficulty in hearing conversation when there is a low level of background noise. He contends that his hearing loss is due to a continued, prolonged, exposure to noise from aircraft when he worked on the flight line, and from ground power units located in a building where he once had an office. He alleges that since he had better-than-average hearing when he entered the service, he should be compensated for a hearing loss, even though he does not meet the criteria for compensation. As to sinusitis, the veteran contends that he had a "sinus rupture" during a very rapid, emergency descent, for which he was grounded for weeks. He states that he continues to suffer from headaches and also has allergies which began in service. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for a bilateral hearing loss is well grounded. It is the further decision of the Board that the preponderance of the evidence is against the claim for an increased evaluation for allergic rhinitis and sinusitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran has submitted no objective evidence of a bilateral sensorineural as defined by VA regulations in service or within one year following discharge from service, and the veteran has no current disability due to auditory impairment. 3. Allergic rhinitis and sinusitis are currently manifested by seasonal allergies, with watery, irritated eyes, a runny nose, and shortness of breath, and sinus drainage with headaches, but without atrophy of the intranasal structure, x-ray manifestations of sinusitis, crusting or scabbing, purulent discharge, or the need for surgical intervention. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for a bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5107(a), 7105(d)(5) (West 1991); 38 C.F.R. § 3.303 (1993); 59 Fed. Reg. 60560 (to be redesignated at 38 C.F.R. § 3.385 (1994)). 2. The schedular criteria for a compensable disability rating for allergic rhinitis and sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Codes 6501 and 6512 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The initial question which must be answered for each of the issues on appeal is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). To be well grounded, the claim be "plausible;" that is, it must be meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, the Board is without jurisdiction to consider the claim, and it must be dismissed. See 38 U.S.C.A. § 7105(d)(5); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). For reasons explained in the next section, the Board finds that the veteran's claim for service connection for a bilateral hearing loss is not well grounded. As to the claim for an increased evaluation for allergic rhinitis and sinusitis, however, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also is satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran filed claims for the disabilities in issue in December 1991. In April 1992, the RO granted service connection for allergic rhinitis and sinusitis at a noncompensable evaluation, effective from December 1991, but denied service connection for a bilateral hearing loss. The veteran then testified at a hearing before the RO in October 1992, in November 1992, and the hearing officer denied service connection for allergic rhinitis and sinusitis and an increased evaluation for a bilateral hearing loss. I. Entitlement to Service Connection for Bilateral Hearing Loss In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a sensorineural hearing loss is manifest to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. See U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Before service connection may be granted for a hearing loss, that loss must be of a particular level of 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 using the Maryland CNC Test are less than 94 percent. See Fed. Reg. 60560 (1994). This is a recent amendment of 38 C.F.R. § 3.385 (1993), which formerly provided what did not constitute impaired hearing for VA benefit purposes. This change in statutory language is of no significance for purposes of this appeal. The veteran underwent four hearing tests during service, none of which included a speech recognition score. On hearing examinations in June 1971 and in January 1972, the pure tone thresholds at all frequencies either remained the same or varied to an insignificant degree. Hearing tests in March 1981 and in May 1981, just before the veteran's separation from service in July 1981, revealed a very slight decrease in hearing acuity, averaging overall 5 decibels for each ear. On the February 11, 1992, VA audiological evaluation, the pure tone average for the right ear was 13 and for the left ear 16. The CNC speech recognition score for the right ear was 100 percent and for the left ear 96 percent. The examining physician noted a very mild, noise-induced sensorineural hearing loss. As previously noted, the pertinent regulation defines hearing loss for VA purposes, as, inter alia, a pure tone threshold for at least three of the indicated frequencies of 26 decibels or greater. The veteran's highest degree of hearing loss was a 25 decibel pure tone threshold in the left ear at the 4000 frequency. Clearly then, the veteran does not meet either of the first two criteria of the regulation. Furthermore, neither speech recognition score meets the 94 percent or less requirement of the regulation. Therefore, the Board finds that the veteran has not produced any evidence, medical or otherwise, that would show a presently existing disability relative to a bilateral hearing loss. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Since the objective evidence fails to show the existence of a hearing loss as defined by VA in service, within the one-year presumptive period, or at any time thereafter, the Board must find that there is no plausible basis for allowance of the claim for service connection for a bilateral hearing loss. The claim must, therefore, be dismissed. II. Entitlement to a Compensable Evaluation for Allergic Rhinitis and Sinusitis Service medical records reveal several episodes of upper respiratory infections and allergic conjunctivitis. On March 14, 1972, the veteran, who was undergoing training as a pilot, reported to an outpatient clinic with a slight pressure sensation in his right ear after descending from 20,000 feet. The sensation had persisted for more than two hours. An examination showed that a Valsalva maneuver was adequate and the tympanic membranes were clear. The diagnostic impression was that the veteran had a mild ear block, and observation was suggested. On March 27, 1972, the veteran experienced pain in the right frontal sinus and pain in the right ear on descent. Upon examination, it was found that he had a mild upper respiratory infection with a sore throat, mildly infected nasal mucosa, and a boggy right ear. The right sinus was tender to percussion. An x-ray showed thickened mucosa in the right parietal sinus. The impression was barotitis media, and medications were prescribed. Although the upper respiratory infection proved to be persistent, by early April the symptoms had cleared up. In September 1972, the veteran had a sore throat and runny nose, which had been clear for two days, but then developed into a nasal obstruction with pressure on frontal and maxillary sinuses. The examination showed that the Valsalva maneuver was difficult to perform bilaterally. Although a series of x-rays were taken to determine the presence of sinusitis, they were interpreted as revealing negative results. During the remainder of his time in service, the veteran suffered from a number of additional upper respiratory infections in May 1973, September 1973, December 1975, September 1976, December 1976, April 1977, and June 1978. Symptoms included the usual cold symptoms and at least two instances of strep throat and one instance of earache. In February 1979, the veteran was noted to have sinusitis. In June 1977, June 1978, June 1979, and May 1981, he reported to outpatient clinics with seasonal allergies. Typical symptoms included itching and irritation to both eyes, sneezing, watery eyes, and a runny nose. Diagnoses were allergic rhinitis and conjunctivitis. In a January 1992 letter, the veteran's family physician, Richard P. Townsend, M.D., stated that he had treated the veteran for the prior ten years, but did not refer to any treatment for allergic rhinitis or a sinus disorder. A subsequent letter from Dr. Townsend, dated in October 1992, mentioned that he was attaching copies of his office notes. He stated that he had treated the veteran for severe headaches, which had recurred over many years, and for chronic recurring sinus infections dating back for at least eight years, as well as for other disorders. Dr. Townsend's clinical notes, however, do not reflect treatment for a sinus disorder. In February 1992, the veteran underwent a VA disability evaluation examination. A reported history of a "ruptured sinus" accompanied by pain over the frontal area was noted. The veteran still complained of pain over his sinuses. Examination showed that he had a deviated anterior septum of the nose, but the examiner stated that there was no evidence of a sinus disorder by examination. Reports of x-rays of the sinuses also indicated no evidence of acute or chronic sinusitis. At his October 1992 hearing before the RO, the veteran testified that he had a lot of sinus drainage and severe headaches. He reported that in the spring, he had allergies, which caused watery eyes, irritation, shortness of breath, and a feeling that his throat was "closing down." He indicated that he had not had any testing for specific allergens and did not take prescription drugs, but occasionally took over-the-counter medicines. He reported headaches which occurred several times a week in one of three levels of intensity. He stated that he could ignore the low level ones and could function with the medium-level ones by taking aspirin several times day. Really severe headaches forced him to stay out of work for two or three days. Then, when they were over, he had a hard time concentrating for a day or so. He stated that he did not know whether his allergies, headaches, and ear infections were interrelated. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2 (1993). Each disability must be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The veteran's allergic rhinitis and sinusitis has been evaluated under 38 C.F.R. § 4.97, Diagnostic Codes 6501 and 6512 (1993). Under Diagnostic Code 6501, relative to atrophic, chronic rhinitis, if there is massive crusting and marked ozena, with anosmia, an evaluation of 50 percent is warranted. With moderate crusting and ozena and atrophic changes, an evaluation of 30 percent is warranted A 10 percent evaluation is warranted when there is definite atrophy of intranasal structure and moderate secretion. The veteran's current medical records, including his VA medical examination report and records from his private physician, do not refer to the presence of or treatment for chronic rhinitis. A longitudinal review of the record, including the service medical records and the veteran's hearing testimony, reveals that the veteran suffers from seasonal allergies. There is no evidence in the claims file that he has ever had medical treatment for rhinitis, unless perhaps associated with treatment for the common cold or flu. Since there currently is no evidence of any abnormality of the intranasal structure, as required by the rating code, and no evidence of treatment for such a disorder, either by the VA or by the veteran's private physician, the Board concludes that the veteran's allergic rhinitis must be evaluated as noncompensable. The Board must next consider whether the veteran may be evaluated under Diagnostic Code 6512, relative to chronic frontal sinusitis. The rating schedule requires that for a 50 percent evaluation for sinusitis, there must have been surgical intervention, with postoperative residuals, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations. A 30 percent evaluation requires severe symptomatology, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. If there are moderate symptoms, with discharge or crusting or scabbing, and infrequent headaches, a rating of 10 percent is warranted. With x-ray manifestations only, and mild or occasional symptoms, a noncompensable evaluation is granted. In reviewing the recent medical records, the Board notes that, with the exception of the veteran's hearing testimony, there is no evidence whatsoever of an acute or chronic sinus disorder. Although the veteran's private physician states that he had treated him for sinus problems for a period of at least eight years, his clinical reports do not substantiate his statement. In his hearing testimony, the veteran reports no symptomatology, except headaches, which could possibly be applicable to a sinus disorder. In weighing the evidence, the Board finds the medical records more persuasive than statements by the veteran and his family physician. Therefore, the Board determines that the veteran's allergic rhinitis and sinusitis have been correctly evaluated as noncompensably disabling. Although the Board has been mindful of the doctrine of reasonable doubt, the facts of this case and the regulations which must be applied afford no basis for the application of this doctrine, as the preponderance of the evidence is against the claim for an increased schedular rating. See 38 U.S.C.A. § 5107(b) (West 1991). The Board has has considered whether the veteran is entitled to a compensable on an extra-schedular basis, but finds that this case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. For the foregoing reasons, the Board concludes that compensable evaluation for allergic rhinitis and sinusitis is not warranted. See 38 C.F.R. § 3.321(b)(1) (1993). ORDER The claim for service connection for a bilateral hearing loss is dismissed. An increased (compensable) evaluation for allergic rhinitis and sinusitis 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.