BVA9501569 DOCKET NO. 93-10 497 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss. 2. Entitlement to a compensable evaluation for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from December 1941 to October 1945, and from February 1949 to March 1964. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October, 1992 rating decision of the Pittsburgh, Pennsylvania, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which granted service connection for schizophrenia and bilateral hearing loss, and assigned noncompensable evaluations therewith. The Board's decision is limited to the issues developed for appellate review. It is unclear from the record, however, whether there is a desire to raise a claim for entitlement to service connection for residuals of a stroke. Furthermore, it is unclear whether there is a desire to raise a claim for entitlement to a permanent and total disability rating for pension purposes. If so, contact should be made with the RO, and the RO should then take appropriate action. These issues are not inextricably intertwined with those before us at this time. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL It is contended on behalf of the appellant that he is entitled to a compensable rating for schizophrenia and bilateral hearing loss. The appellant's wife, speaking on the appellant's behalf, asserts that the appellant has been unable to attend scheduled VA examinations due to extended inpatient care. She further states that he is currently unable to respond to standard audiometric and psychiatric examinations due to his physician and mental limitations resulting from a strokes suffered in 1989 and 1991, and requests alternative examinations in order to evaluate the appellant's service-connected disabilities. 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 appellant'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 supports a 40 percent evaluation for the appellant's service-connected bilateral hearing loss, currently evaluated as noncompensable. However, the preponderance of the evidence is against the allowance of a compensable evaluation for schizophrenia. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. A private audiometric study conducted prior to the veteran's strokes, if plotted under current rating criteria, indicates Level VII hearing in his right ear and Level VII hearing in his left ear; subsequent to strokes, the veteran has been nonresponsive to testing techniques. 3. Current objective clinical evidence demonstrates that the appellant is unable to respond to current psychiatric examinations due to residuals of a non service-connected disability. There are no clinical manifestations of the appellant's service-connected schizophrenia found on any post- service medical reports, as well as on the current VA psychiatric examination. 4. The clinical record does not reveal the veteran's schizophrenia to have been other than in remission at any time following separation from service. 5. The appellant's service-connected psychiatric and hearing disabilities do not present such an unusual disability picture as to render application of the regular rating schedule provisions impractical. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, § 4.85, Table VI and Table VII, Diagnostic Code 6104 (1993). 2. The criteria for a compensable evaluation for schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, §§ 4.1, 4.3, 4.7, 4.10, 4.129, 4.130, 4.131, 4.132, Diagnostic Codes (DC) 9201-9205 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Initially, we find that the appellant's claims for an increased evaluation for schizophrenia and bilateral hearing loss are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented two claims which are plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to these claims. 38 U.S.C.A. § 5107(a) (West 1991). After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. The current record contains limited but relevant service medical records documenting the diagnosis of schizophrenia, paranoid type, and bilateral hearing loss, as well as the resulting medical board report and separation examination. No other service clinical reports are currently of record. However, neither the appellant nor his wife have asserted any relevancy of additional service medical records not currently of record. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (duty to assist does not extend to determinations of whether "there might be some unspecified information which could possibly support a claim."); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), reconsideration denied, 1 Vet.App. 406 (1991). Post-service medical reports of record include a December 1988 audiogram from The Hearing Laboratory, 1991-92 VA inpatient treatment reports, 1992 inpatient reports from Harmarville Rehabilitation Center, a June 1992 VA psychiatric examination, and a February 1993 VA attempted audiometric examination. Therefore, the Board concludes the evidence currently of record adequately details, to the extent possible given the veteran's current physical condition, the entire history of the appellant's service-connected disabilities, particularly as they affect the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). 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) (West 1991); 38 C.F.R. § 3.102 (1993); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1993). 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 appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Schizophrenia is evaluated under Diagnostic Codes 9201 through 9205. 38 C.F.R. Part 4, § 4.132 (1993). Under current regulations, a noncompensable evaluation for schizophrenia, any type, is warranted upon a showing of psychosis in full remission. A 10 percent evaluation is warranted for schizophrenia with mild impairment of social and industrial adaptability; definite impairment of social and industrial adaptability may warrant a 30 percent evaluation. A 50 percent evaluation for schizophrenia may be assigned upon a showing of considerable impairment of social and industrial adaptability. With lessor symptomatology than that required for a 100 percent evaluation producing severe impairment of social and industrial adaptability, a 70 percent evaluation is warranted. Where there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability, a 100 percent rating is substantiated. Id. Pursuant to the case of Hood v. Brown, 4 Vet.App. 301 (1993), the General Counsel of the VA issued a precedent opinion interpreting the terms "mild," "definite," and "considerable," as applied in 38 C.F.R. § 4.132 (1993). See O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). In that opinion, the term "mild," the criterion for a 10 percent evaluation, was defined as "of moderate strength or intensity, and as applied to disease, not severe or dangerous." "Definite," the criterion for a 30 percent rating, was construed quantitatively to mean "distinct, unambiguous, and moderately large in degree," and "considerable," the criterion for a 50 percent evaluation, was defined as "rather large in extent or degree." Id. The VA, including the Board, is bound by such interpretations. 38 U.S.C.A. § 7104(c) (West 1991). The severity of hearing loss is determined, for VA benefits purposes, by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85, Part 4, Diagnostic Codes 6100 through 6110 (1993). Evaluations of bilateral defective hearing 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 1,000, 2,000, 3,000 and 4,000 hertz (cycles per second). The revised Schedule for Rating Disabilities allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. II. Service medical records reflect that the appellant was diagnosed with chronic, severe schizophrenia, paranoid type, and bilateral hearing loss due to degeneration of acoustic nerves in September 1963. At that time, he suffered from somatic delusions, inappropriate affect, ideas of reference, illogical thinking, and bizarre body movements which produced marked impairment of military duty, and moderate civilian impairment. Audiological results indicated thresholds of 5(20), 25(35), 25(35), and 25(30) decibels for the right ear, and 5(20), 15(25), 30(40), and 40(45) decibels for the left year, at 500, 1000, 2000, and 4000 Hertz, respectively. (The figures in parentheses are based on ISO Standards to facilitate data comparison. Prior to November 1967, audiometric results were reported in ASA Standards in service medical records.) As a result of the above mentioned disabilities, the appellant was recommended for temporary retirement in March 1964, with a 30 percent disability evaluation assigned for purposes of placement on the retirement list. There are no post-service clinical reports of record dated prior to 1988, and it is not otherwise contended. Results from a December 1988 private audiogram indicated thresholds of 65, 85, 75, 85, and 95 decibels for the right ear, and 35, 60, 70, 75, and 85 decibels for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The average right ear pure tone threshold was 81 decibels, with right ear speech recognition at 64 percent, in the right ear; the average left ear pure tone threshold was 65 decibels, with left ear speech recognition at 52 percent. Also indicated on such report was a notation by the examiner that approximately 4+ ear impactions were removed from the appellant's ears a week later. A December 1988 receipt indicates the purchase of hearing aides by the appellant. VA inpatient reports, as well as November 1991 medical and rehabilitation reports from Harmarville Rehabilitation Center, indicate that the appellant reported a 1989 CVA with left sided weakness, as well as a history of hypertension, chronic urinary tract infections, depression, organic brain syndrome, alcohol abuse, and in-service electroconvulsive shock therapy. Such records further reflect the appellant suffered an October 1991 right CVA with resulting aphasia, severe right spastic hemiplegia, moderate left hemiparesis, moderate to severe homonymous hemianopsia, moderate right sided neglect, moderate to severe mixed aphasia and dysphagia, and a neurologic bowel and bladder, as well as speech and swallowing difficulties, and organic brain syndrome. During rehabilitation, he was additionally treated for left lower lobe pneumonia due to dehydration, and a feeding tube was surgically inserted. The attending physicians noted that the appellant was essentially uncooperative, with a limited attention span and negative attitude. The attending physician further noted the appellant had been tested for hearing loss in December 1991 indicating possible mixed hearing loss in the right ear, but no threshold levels were given. A February 1992 psychiatric consultation indicated depressive reaction to the medical condition, and dementia due to the stroke. No schizophrenic symptomatology was reported during his inpatient treatment. As a result of his total care requirements, he was admitted to the VA Nursing Home in or around May, 1992. Due to his inpatient status, the appellant was unable to report to numerous VA psychiatric and audiological examinations. However, in July, 1992, a VA psychiatric examination was attempted. The examiner stated that the appellant was unable to comprehend spoken speech or to express any complaints, and was disoriented in all three spheres. He further found clinical evidence of profound dementia. He concluded that the appellant currently suffered from old bilateral cerebral infarcts with right hemiparesis, expressive aphasia, and dementia which prevented any expression of schizophrenic symptomatology at that time. In addition, the VA attempted to examine the appellant's hearing loss during a February 1993 audiological examination. Unfortunately, the appellant was unable to respond to any hearing stimuli, and the test was not administered. III. Review of the record reveals that the veteran is significantly disabled due to non-service-connected strokes. There apparently was no claim filed for VA benefits prior to the second stroke, and it has been indicated that the veteran did not seek much medical treatment in the years following separation from service. In view of his current condition, current clinical findings for the purposes of evaluating his disabilities can not be obtained, or are not useful. As such, the Board concludes that evidence of the disabilities prior to the stroke is most useful in evaluating his entitlement to VA compensation. With reference to the service connected hearing loss, the only pertinent evidence on file is the 1988 audiological evaluation for hearing aids. This test did not use the Maryland CNC speech discrimination test, but did use a W-22 test. While this test is not precisely the type utilized by the VA in rating defective hearing, it does provide some basis for determining approximately what the veteran's hearing acuity was at the time the test was done. The test is deemed probative, despite the finding of wax in the ears as the veteran subsequently purchased hearing aids based on the test results. Thus, although not exactly administered to VA standards, the use of this test, as opposed to having no audiometric test results, is to the veteran's advantage. Application of the findings of this examination to the provisions of the rating schedule shows level VII hear acuity in each ear. Based on the foregoing, it is concluded that the current medical evidence of record demonstrates entitlement to a 40 percent evaluation for the appellant's service-connected bilateral hearing loss. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under Diagnostic Code 6104, a 40 percent evaluation is assigned where hearing is at Level VII in both ears. 38 C.F.R. §§ 4.85, DC 6104 (1993). As the appellant is currently unable to be audiometrically tested, the 1988 private audiogram is the only objective clinical evidence currently of record. Therefore, the Board concludes that such private audiogram demonstrates entitlement to a 40 percent evaluation for bilateral hearing loss. However, here is simply no clinical evidence to support a compensable evaluation for the appellant's service-connected schizophrenia. The record currently reflects that the appellant is both physically and mentally handicapped due to a non-service- connected disability, which totally interferes with his ability to be medically examined for his service-connected schizophrenia at this time. Furthermore, there is no post-service medical evidence of record indicating the appellant has suffered any psychotic symptomatology since separation from service. The Board sympathizes with the appellant's unfortunate situation, but in the absence of objective clinical evidence indicating current manifestations of his service-connected schizophrenia, the Board is unable to assign a compensable evaluation therewith. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (Board may only consider independent medical evidence to support findings.). Moreover, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's bilateral hearing loss or schizophrenia. As discussed above, the appellant currently suffers from severe residuals of a non service-connected disability, and is reportedly retired. Therefore, we do not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1993). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to a compensable evaluation, evaluated as 40 percent disabling, for bilateral hearing loss is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to a compensable evaluation for schizophrenia 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.