BVA9502364 DOCKET NO. 93-07 332 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased (compensable) rating for service- connected bilateral hearing loss. 2. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty from August 1952 to January 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims for an increased (compensable) rating for his service-connected bilateral hearing loss and for service connection for tinnitus. The veteran has also applied to reopen claims for service connection for a heart condition and lung problems. As these issues have not yet been adjudicated by the RO, they are not before the Board at this time and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the degree of his bilateral hearing loss is productive of at least a compensable rating and that his tinnitus is related to exposure to acoustic trauma during active 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 preponderance of the evidence is against the veteran's claim an increased (compensable) rating for his service-connected bilateral hearing loss, and the evidence supports the claim for service connection for tinnitus. FINDINGS OF FACT 1. The veteran's service-connected sensorineural hearing loss is currently manifested by auditory acuity level I, bilaterally. 2. Tinnitus is caused by the service-connected bilateral sensorineural hearing loss. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Code 6100 (1993). 2. Tinnitus is proximately due to or the result of service- connected bilateral sensorineural hearing loss. 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Navy from August 1952 to January 1975. The medical records do not show any entries for tinnitus during the whole of his active service. Audiological examinations performed during service in 1973 and 1974, including the retirement examination in December 1974, show mild, bilateral hearing loss starting at 3,000 Hertz. In January 1976, the veteran applied for service connection for a number of medical conditions, including hearing loss. However, he failed to report for a VA examination for compensation purposes and because of this, the RO denied his claims in a September 1976 decision and informed him of this in an October 1976 correspondence. In a statement from the veteran, received by the RO in November 1991, he reported having tinnitus symptoms of 2 months duration. He stated that two private physicians had examined him and informed him that men (such as himself) who were over 50 years old and had been exposed to loud noises 15 to 20 years earlier could subsequently develop hearing problems. The veteran requested assistance from the VA in treating this condition, and the RO interpreted his request as an application to reopen his claim for service connection for hearing loss, and a claim for service connection for tinnitus. The findings of an March 1992 VA audiological examination shows the veteran's bilateral hearing loss was manifested by average pure tone thresholds (at 1,000, 2,000, 3,000 and 4,000 Hertz) of 33 decibels in the right ear with 100 percent speech recognition ability, and 34 decibels in the left ear with 98 percent speech recognition ability. The veteran also reported having bilateral tinnitus for about six months. He gave a history of noise exposure in service from gunfire and heavy machinery. During an otolaryngological examination performed that same day, the veteran reported a long history of noise exposure during his service in the U.S. Navy, both secondary to gunfire and to his principal shipboard duties in the engine room. He reported that in recent years he developed bilateral tinnitus. Physical examination revealed normal ears. Analysis of the audiogram revealed normal hearing from 250 Hertz to 2,000 Hertz, but with moderate to severe hearing loss above 2,000 Hertz. The diagnostic impressions were bilateral sensorineural hearing loss above 2,000 Hertz, and bilateral subjective tinnitus. In a June 1992 decision, the RO granted the veteran service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating for this condition. Service connection for tinnitus was denied. During a September 1992 RO hearing, the veteran testified that symptoms of tinnitus appeared approximately a year earlier, and that he had no symptoms of tinnitus during service. He reported exposure to noise during service, and hearing loss for several years duration. The veteran again reported that doctors had told him that his problems could be caused by noise exposure in service. II. Analysis The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a), in that they are not inherently implausible. Relevant evidence has been properly developed, and no further assistance to the veteran is required to comply with the duty to assist. Id. (a). Entitlement to an increased (compensable) evaluation for bilateral hearing loss. 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 cycles per second. To evaluate the degree of disability from service-connected bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, Codes 6100 to 6110. The Board has considered the veteran's argument that his level of hearing impairment is more severe than is reflected by the current noncompensable disability rating. However, hearing loss evaluations are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). The March 1992 VA audiological examination shows test results which equate to auditory acuity level I in the right ear and level I in the left ear. See 38 C.F.R. § 4.85, Table VI. This corresponds to a noncompensable, zero percent, rating under Code 6100. See 38 C.F.R. § 4.85, Table VII. The veteran's service-connected bilateral hearing loss is typical of similarly situated veterans. His case does not present an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards; an increased rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b). The preponderance of the evidence is against this claim, and thus the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). For these reasons, an increase in the current noncompensable rating for bilateral hearing loss must be denied. (b). Entitlement to service connection for tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The veteran's service medical records contain no reference to tinnitus, and there is no post-service medical evidence of tinnitus until 1992. Additionally, the veteran acknowledges that tinnitus did not begin until sometime in 1991, as he reported having tinnitus of 2 months duration in November 1991. This is many years after the veteran's 1975 retirement from service. Although he contends to the contrary, the medical evidence currently on file does not directly link tinnitus to remote events of service. Therefore, it is the Board's judgment that the evidence does not show chronic tinnitus in service, or a continuity of symptomatology after service, that would support the veteran's claim for service connection on a direct basis. However, consideration has also been given to secondary service connection, which may be granted for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The veteran reported bilateral tinnitus at VA audiological and otolaryngological examinations conducted in March 1992. He is also service-connected for bilateral sensorineural hearing loss. According to some medical authorities, tinnitus may result from sensorineural hearing loss. See 2 Cecil, Textbook of Medicine, § 464 at 2119-2120 (18th ed. 1988). It appears as likely as not that the veteran's tinnitus is caused by his service-connected sensorineural hearing loss, and, as the evidence is in relative equipoise in regards to this issue, he will be given the benefit of the doubt on this point. 38 U.S.C.A. § 5107(b). The Board therefore finds that service connection for tinnitus on a secondary basis is warranted. ORDER An increased (compensable) evaluation for bilateral hearing loss is denied. Service connection for tinnitus is granted. L. W. TOBIN 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.