BVA9505870 DOCKET NO. 93-12 365 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran had active military service from January 1946 to January 1949 and March 1950 to July 1967. This appeal arises from an October 1992 rating decision of the San Francisco, California, Regional Office which denied the veteran's claim for an increased (compensable) evaluation for bilateral hearing loss. In November 1992, the veteran's claims folder was transferred to the Los Angeles, California, Regional Office (hereinafter RO). The veteran is represented in his appeal by Veterans of Foreign Wars of the United States. The case is now ready for further appellate review. The Board notes that the veteran's representative raised the issue of entitlement to service connection for tinnitus. However, this issue was reconsidered and granted by a Board panel in October 1994 and, in January 1995, the RO effectuated the Board's decision and assigned a 10 percent disability evaluation for tinnitus, effective from November 1, 1982. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that his bilateral hearing loss is of greater severity than is reflected by the current noncompensable evaluation. 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(s). 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 for an increased (compensable) evaluation for bilateral hearing loss. 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 II hearing in the right ear and level III hearing in the left ear. CONCLUSION OF LAW The schedular criteria for an increased (compensable) evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.85, Part 4, Diagnostic Code 6100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all reasonable efforts have been made in helping the veteran prove his claim. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). I. Historical Review The veteran's service medical records reveal that the veteran exhibited a reading of 35 decibels bilaterally in the 3,000 range at his retirement examination in February 1967. In September 1980, the veteran complained that he could not hear certain noises, had difficulty hearing on the telephone, and had to keep the television volume loud. The report of the September 1980 audiometric evaluation conveys that the veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 20 40 25 LEFT 10 35 40 45 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 86 percent in the left ear. The diagnosis was mild sensori-neural hearing loss. The veteran was fitted with hearing aids. A repeat hearing test in August 1991, showed no change since the September 1980 audiometric evaluation. The veteran's hearing aids were also refitted. At a January 1985 VA audiological evaluation, the veteran gave a history of decreased hearing since his service in Korea. Upon evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 15 45 40 LEFT 15 40 40 45 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The pertinent diagnosis was mild bilateral sensorineural hearing loss pattern consistent with history of acoustic trauma. Based upon the evidence of record, in March 1985, the RO granted service connection for bilateral mild sensorineural hearing loss and assigned a noncompensable evaluation, effective from October 14, 1982. The veteran was afforded audiological evaluations in January 1988 and August 1988. In January 1988, the veteran's hearing was recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 25 55 50 LEFT 15 40 50 55 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. On VA audiological evaluation in August 1988, the examiner reported an average pure tone threshold of 41 in the right ear and 50 in the left ear with speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. In October 1988, the RO confirmed the noncompensable evaluation for bilateral hearing loss. II. Increased Disability Evaluation The evaluation assigned a service-connected disability is established by comparing the manifestations reflected by the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). Disability 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 of 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability for bilateral service- connected defective hearing, the revised 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, Part 4, Diagnostic Codes 6100 to 6110 (1994). Where there is a question as to which of two disability 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 (1994). At the August 1992 VA audiological examination for compensation purposes, the veteran complained that his hearing was deteriorating and that his hearing aids kept falling off. He reported that he had been continuously employed since 1967 and that he had not lost any time from work in the past 12 months. On audiological evaluation, pure tone thresholds, in decibel levels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 55 60 LEFT 50 65 60 60 These findings reflect an average pure tone threshold of 55 decibels in the right ear and 59 decibels in the left ear. Speech audiometry revealed speech recognition ability of 90 percent bilaterally. The examiner concluded that the veteran suffered from bilateral sensorineural loss. The Board has weighed the probative evidence of record including the veteran's statements on appeal. The August 1992 audiometric findings show that the veteran exhibits Level II hearing in the right ear and Level III hearing in the left ear. This degree of hearing impairment merits a noncompensable disability evaluation under the provisions of 38 C.F.R. Part 4, including § 4.85 and Diagnostic Code 6100 (1994). Therefore, I find that an increased disability evaluation is not warranted for the veteran's bilateral hearing loss. I have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1994), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, I find that the evidence does not suggest that the veteran's bilateral hearing loss is productive of such an exceptional or unusual disability picture as to render impractical the applicability of the regular scheduler standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994). The veteran is employed and has not demonstrated marked interference with employment nor required frequent periods of hospitalization due to his hearing. ORDER An increased (compensable) evaluation for bilateral hearing loss is denied. CONSTANCE B. TOBIAS 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.