BVA9505734 DOCKET NO. 93-09 864 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased (compensable) rating for hearing loss disability of the left ear. 2. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Reichelderfer, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to May 1970 and from January 1971 to May 1972. This case arises from a rating decision of October 1991 from the Portland, Oregon, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred when it granted a noncompensable rating for his left ear hearing loss disability. He alleges that his hearing loss was not properly evaluated, that his hearing loss affects his employment and his way of life, and that he thus deserves compensation. He also alleges that the evidence of record shows that he incurred a back disability during service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 his claim for a compensable rating for left ear hearing loss disability. It is also the decision of the Board that no new and material evidence has been received to reopen the veteran's claim for service connection for a back disability. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Left ear hearing loss disability is manifested by an average pure tone threshold of 49 decibels, and by speech recognition of 96 percent. Total right ear deafness is not shown. 3. Neither an exceptional nor an unusual disability picture has been demonstrated with regard to the veteran's claim for a compensable evaluation for left ear hearing loss disability so as to render impractical the application of the regular schedular standards. 5. Service connection for a back disability was denied by a decision of the Board in May 1991. 6. No new and material evidence regarding a back disability has been received subsequent to the May 1991 decision by the Board that would raise a reasonable possibility that service connection for a back disability could be allowed. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for left ear hearing loss disability are not met. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 (1994). 2. The May 1991 decision of the Board that denied service connection for a back disability is final. No new and material evidence has been received subsequent to the Board's May 1991 decision; and the veteran's claim for service connection for a back disability has not been reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an increased (compensable) rating for hearing loss disability of the left ear. Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, a plausible claim has been presented. The veteran has not indicated that relevant evidence of probative value may be obtained which has not already been associated with his claims folder. Accordingly, the Board finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. In a decision by the Board, dated in May 1991, service connection was granted for defective hearing in the left ear. In a rating decision, dated in October 1991, the RO implemented the Board's decision and assigned a noncompensable rating for this disability based on the results of a Department of Veterans Affairs (VA) audiology examination conducted in March 1990. The veteran contends that a compensable evaluation for his left ear hearing loss disability is appropriate. After a review of the record, however, the Board finds that his contentions are not supported by the evidence, and that his claim fails. The degree of compensation appropriate for service-connected hearing loss disability is determined by application of provisions set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994) (Schedule). Under the pertinent regulatory provisions, evaluations of unilateral defective hearing range from noncompensable to 10 percent, based on the degree of hearing impairment as determined by audiological evaluation, and application of the results of the audiological evaluations to tables to determine the degree of disability. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6101 (1994). Here, service connection has been established only for left ear hearing loss disability. Under the provisions of 38 U.S.C.A. § 1160(a) (West 1991), when service connection has been established for unilateral hearing loss disability, the severity of any hearing loss in the ear that is not service-connected will be considered, for VA disability rating purposes, only when total deafness in the nonservice-connected ear is demonstrated. Also, the evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1994) The report of the most recent VA audiology evaluation, conducted in March 1992, does not show right ear total deafness, but rather right ear hearing was shown at that time by the average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz to be 19 decibels, and with speech recognition of 98 percent. This same evaluation report shows that left ear hearing was manifested at the same frequencies by an average pure tone threshold of 49 decibels, and by speech recognition of 96 percent. Under the criteria set forth at 38 C.F.R. §§ 4.85, 4.86, 4.87 (1994), and associated tables, both the service- connected left ear and the nonservice-connected right ear are found to be numeric designation I, in accordance with Table VI, Numeric Designation of Hearing Impairment. When the numeric designations are applied to Table VII, Percentage Evaluations for Hearing Impairment, the disability rating is noncompensable (0%). The veteran has alleged that his speech recognition scores have varied, and that VA chose to rely on evaluation results that do not accurately assess his hearing disability. However, the report of a VA audiology evaluation, dated in March 1990, shows that the average pure tone threshold on the right at 1000, 2000, 3000, and 4000 Hertz to be 19 decibels, and with speech recognition of 96 percent. This same evaluation report shows that left ear hearing was manifested at the same frequencies by an average pure tone threshold of 44 decibels, and by speech recognition of 82 percent. Under the criteria set forth at 38 C.F.R. §§ 4.85, 4.86, 4.87 (1994), and associated tables, the service-connected left ear is found to be numeric designation III and the nonservice-connected right ear is found to be numeric designation I, in accordance with Table VI, Numeric Designation of Hearing Impairment. When these numeric designations are applied to Table VII, Percentage Evaluations for Hearing Impairment, the disability rating is again noncompensable (0%). Therefore, the veteran's left ear hearing loss disability is noncompensable based upon both the March 1990 and the March 1992 audiology evaluations. The veteran has alleged that his left ear hearing loss disability affects his personal life and employment. However, the Board notes that with the exception of his own statements, there is no evidence to show that the veteran's left ear hearing loss markedly interferes with his employment. Accordingly, since there is no evidence that his left ear hearing loss disability causes marked interference with employment, or that there are frequent periods of hospitalization, the Board finds that his disability does not present such an exceptional or unusual disability picture that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). In view of the foregoing, the Board must find that the preponderance of the evidence is against the veteran's claim for a compensable rating for left ear hearing loss disability. 38 C.F.R. § 1155, 1160(a) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 (1994) II. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. In a decision by the Board, dated in May 1991, service connection for a back disability was denied. In making that decision, the Board reviewed the veteran's service medical records; VA examination reports dated in December 1970 and April 1990; a private physician statement dated in September 1970; private hospital records dated in April 1984; private treatment records dated from November 1984 to May 1987; a copy of a radiologic report dated in April 1987; and statements from the veteran, his father, and his wife. The Board found, based on the evidence of record, that a back disability was not incurred in or aggravated by service. Prior decisions of the Board are final, but they may be reopened upon the receipt of evidence which is both new and material. See 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). "New" evidence means more than evidence that has not previously been associated with the claims folder. The "new" evidence must present information not previously considered, and therefore may not be cumulative of the evidence already of record. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must also be material, in that it is relevant and probative; that is, it raises a reasonable possibility of allowance of the claim when viewed in conjunction with the record as a whole. The veteran stated in his substantive appeal, dated in April 1993, that service connection for a back disability should be allowed based on the record. He has submitted no other evidence to show that a back disability was incurred in or was aggravated by service. The Board must find that his statement is cumulative of statements previously made, and accordingly not new, since it simply reiterates the contentions that he previously made and which were considered by the Board for its May 1991 decision. Since the veteran's statement is not new, no new and material evidence has been received with regard to his claim for service connection for a back disability. Accordingly, the claim has not been reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). ORDER A compensable rating for left ear hearing loss disability is denied. No new and material evidence has been received with regard to the question of service connection for a back disability; the veteran's claim for such a disability has not been reopened and the benefit sought on appeal remains denied. LAWRENCE M. SULLIVAN 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. (CONTINUED ON NEXT PAGE) 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.