BVA9502697 DOCKET NO. 93-12 415 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for bilateral hearing loss, currently rated as 10 percent disabling. 2. Entitlement to an increased evaluation for otitis media, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from August 1965 to August 1974. This appeal is before the Board of Veterans' Appeals (the Board) from May 1990 and February 1992 rating decisions of the Regional Office (RO) which denied an increased evaluation for otitis media, currently rated as 10 percent disabling, and granted an increase from 0 to 10 percent for the hearing loss disability. These rating decisions also addressed other service-connected disabilities of the veteran; however, as the additional issues have not been appealed the Board will not address those issues in this decision. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that higher disability evaluations are warranted for his service-connected hearing loss and otitis media than the currently assigned ratings of 10 and 10 percent, respectively. In support of this contention he alleges that his hearing ability has continued to worsen in recent years. The veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. 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 claims for increased evaluations for bilateral hearing loss and otitis media. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has level XI hearing in the right ear and level I hearing in the left ear. 3. He has recurrent episodes of discharge from the ears. 4. The veteran's service-connected disabilities are not shown to cause marked interference with employment or frequent hospitalizations. CONCLUSIONS OF LAW 1. The schedular and extraschedular criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.85, Diagnostic Code 6101 (1993). 2. The criteria for an evaluation in excess of 10 percent for otitis media have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.951(b), 4.1, 4.2, 4.7, 4.87a, Code 6200 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file the Board concludes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claims presented are not inherently implausible. Furthermore, the Board concludes that all facts pertinent to the plausible claims have been developed and that as such, there is no further duty to assist in developing the claims as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claims, in which case the claims must be denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity resulting from specific service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be shown for specific ratings. It is the policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. The veteran had active service from August 1965 to August 1974. He was granted service connection for bilateral hearing loss and chronic otitis media in a May 1975 rating decision. A noncompensable rating was assigned for the hearing loss, and a 10 percent disability rating was assigned for the otitis media. Unfortunately the veteran's original claims folder was subsequently lost in approximately 1977. In August 1979, following a VA medical examination, the RO reduced the rating for otitis media to zero percent; the noncompensable rating for bilateral hearing loss was continued. VA outpatient treatment records, dated in 1986 showed that the veteran continued to be treated for chronic otitis media. Consequently, the RO, in a September 1986 rating decision, increased the veteran's disability rating to 10 percent for chronic otitis media. The noncompensable rating for bilateral hearing loss was continued. These two ratings remained in effect until February 1992 when the RO increased the disability rating for bilateral hearing loss from 0 to 10 percent based on the findings of a January 1991 VA audiologic examination. Increased evaluation for bilateral hearing loss 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. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the current schedular criteria for the evaluation of this disability, our determination of the degree of impairment resulting from service-connected defective hearing is based on the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometry in the frequencies of 1,000; 2,000; 3,000; and 4,000 hertz. The rating schedule establishes 11 levels of auditory acuity, designated from level "I", for essentially normal hearing, to level "XI", for profound deafness. 38 C.F.R. § 4.85, Codes 6100 to 6110. The veteran was afforded a VA audiological examination in January 1991. The recorded pure tone thresholds for the veteran's left ear were: 20 decibels at 1000, 30 at 2000, 35 at 3000, and 20 at 4000. The recorded pure tone thresholds for the veteran's right ear were: 70 decibels at 1000, 55 at 2000, 55 at 3000, and 45 at 4000. The average pure tone threshold for the left ear was 26 decibels and 56 decibels for the right ear. The veteran's speech recognition ability was not recorded. The veteran testified at a personal hearing, held in June 1991, that he was a van driver for a railroad. He could not hear speech if the person talking was not facing him. At night, he could not even hear the phone if he was lying on his left ear. He was being reinstated by his employer as the result of a lawsuit. He would be working as a file clerk but at his former pay. He thought this would be much better for him physically. The veteran was afforded another VA audiologic examination in January 1992. That evaluation showed that, in the left ear, the average pure tone threshold at the designated frequencies was 25 decibels with 92 percent speech discrimination ability. This corresponds to level I hearing in that ear. The average pure tone threshold at the designated frequencies in the right ear was 74 decibels with 26 percent speech discrimination ability. This corresponds to level XI hearing in that ear. Under the applicable schedular criteria, a 10 percent disability evaluation is the maximum rating that may be legally assigned for the degree of impairment demonstrated. The veteran has also submitted a medical record from a private physician which shows that the veteran was given an audiometric evaluation in November 1990 and December 1992. Although speech recognition scores were not recorded for either date, the Board notes that the veteran's average puretone thresholds for the November 1990 examination were 44 decibels for the left ear and 86 decibels for the right. The average puretone thresholds from the December 1992 examination were 25 for the left ear and 70 decibels for the right. The above cited regulations require a 10 percent rating to be assigned for bilateral defective hearing where the pure tone threshold average in one ear is 25 decibels, with speech recognition ability of 92 percent correct, (level I); and, in the other ear, the pure tone threshold average is 74 decibels, with speech recognition ability of 26 percent correct, (level XI). 38 C.F.R. §§ 4.85, 4.87, and Code 6101. The Board notes that the November 1990 findings of the private examiner indicated significantly greater hearing loss than the later findings of December 1992. In fact the findings of December 1992 actually showed a slight improvement in the veteran's hearing since the January 1992 VA audiological examination. However, taking into consideration all the evidence of record, the December 1992 findings seem consistent with the January 1992 VA examination. Giving the veteran the benefit of the doubt the Board used the findings from the January 1992 VA examination as representing the most current assessment of the veteran's hearing acuity for purposes of considering the claim for an increased evaluation. Nonetheless, the Board finds that, given the current test results, a disability evaluation in excess of 10 percent is not warranted for the veteran's service-connected bilateral hearing loss. The Board is aware of the veteran's contentions concerning his difficulty in hearing. We have no doubt, based on the findings of the audiometric examinations, that he has difficulty hearing, especially in situations with a great deal of background noise. The assignment of disability ratings for hearing impairment, however, is derived by a mechanical application of the rating schedule based on the numeric designations assigned after audiometric evaluations are rendered. Therefore, based on the findings from the veteran's most current audiometric examinations, the claim for an increased evaluation must be denied. Increased evaluation for otitis media As stated above disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity resulting from specific service- connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be shown for specific ratings. Where 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. If the schedular rating criteria are inadequate, an extraschedular evaluation may be assigned commensurate with the impairment of average earning capacity if there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran's service-connected otitis media is evaluated under diagnostic code 6200 which provides that a 10 percent evaluation is warranted for chronic suppurative otitis media during the continuance of the suppurative process. 38 C.F.R. § 4.87a, Code 6200. The veteran has testified and submitted statements that his otitis media is more disabling than currently evaluated. However, the maximum schedular disability evaluation allowed by law for this disability, is 10 percent. Therefore, the Board cannot award a greater schedular disability rating than that presently granted to the veteran for otitis media. In addition, the Board notes that in February 1992 the veteran was granted service connection for tinnitus and labyrinthitis secondary to his service-connected otitis media, and assigned a 10 percent rating for this additional disability. The Board, in reaching its decision, has considered 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). The Board finds that the evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for either of the veteran's service-connected disabilities. There is no evidence of frequent periods of hospitalization or marked interference with employment due to the veteran's service- connected hearing loss and/or otitis media. The Board notes that the veteran testified during the personal hearing held in June 1991 that, although he was no longer working as a van driver, he was still employed by the same employer, as a file clerk, for the same pay. Thus, an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER A disability evaluation, in excess of 10 percent, for bilateral hearing loss is denied. A disability evaluation, in excess of 10 percent, for otitis media is denied. HOLLY E. MOEHLMANN 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.