Citation Nr: 0004286 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-20 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for left ear hearing loss disability. 2. Entitlement to an increased (compensable) evaluation for right ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from December 1961 to November 1963. This case comes before the Board of Veterans' Appeals (Board) from a rating action rendered in June 1998 by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Left ear hearing loss disability is not currently shown. 2. All evidence necessary for an equitable disposition of the veteran's claim for a compensable evaluation for right ear hearing loss disability has been obtained. 3. Right ear hearing loss disability is currently manifested by an average pure tone threshold of 49 decibels, and by speech reception of 84 percent. Total deafness in the nonservice-connected left ear is not shown. CONCLUSIONS OF LAW 1. A claim for service connection for left ear hearing loss disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.385 (1999). 2. The criteria for a compensable evaluation for right ear hearing loss disability are not met. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.86, Diagnostic Code 6100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for Left Ear Hearing Loss Disability The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). See also Caluza v. Brown, 7 Vet. App. 498 (1995), wherein the United States Court of Appeals for Veterans Claims, formerly the United States Court of Veterans Appeals (Court), held that a well-grounded claim requires evidence of a current disability, an inservice disability, and a nexus or link between the two. When any one of these three criteria is not satisfied, the Board is obligated to find that a claim for service connection for any such disability is not well grounded and therefore must be denied, pursuant to the decision of the Court in Edenfield v. Brown, 8 Vet. App. 384 (1995). See Caluza, supra. With regard to the veteran's claim of service connection for left ear hearing loss disability, the Board must conclude that this disorder is not shown, by means of clinical evidence, to be present at this time. Governing regulations, set forth at 38 C.F.R. § 3.385 (1999), stipulate that hearing impairment is deemed to be a disability for VA benefits purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; when the auditory thresholds in any three of these frequencies is 26 decibels or greater; or when speech recognition is less than 94 percent. The medical evidence does not demonstrate that any of these criteria are satisfied at this time. The report of the most recent audiological examination of the veteran's hearing, conducted by VA in February 1998, shows that left ear hearing was manifested by pure tone thresholds of 25, 10, 25, 15 and 15 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and by speech recognition of 96 percent. As indicated above, a disability must be currently manifested for a claim for service connection therefor to be deemed well grounded; that is, service connection cannot be granted for a disability that is not shown to exist. Caluza, supra; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board must conclude, based on the provisions of 38 C.F.R. § 3.385 (1999), that left ear hearing loss disability is not shown to exist, at least for VA benefits purposes. The Board must therefore conclude that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for left ear hearing loss disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board accordingly finds that the veteran's claim for service connection for this disorder is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield. The Board also notes that the Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996) and McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). In the case at hand, the Board notes that the veteran has not indicated that any such evidence is available. The Board must point out that its duty to assist the veteran in the development of his claim, as stipulated in 38 U.S.C.A. § 5107(a) (West 1991), does not arise until a claim is shown to be well grounded. The Board must also point out that the veteran is free to submit new and material evidence, and reopen his claim for service connection for left ear hearing loss disability, at any time. II. Entitlement to a Compensable Evaluation for Right Ear Hearing Loss Disability Initially, the Board finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, the veteran has presented a claim that is plausible. (See Proscelle v. Derwinski, 2 Vet. App. 629 (1992), with regard to the application of the well-grounded standard for claims for increased compensation.) He has not alleged the existence of any records of probative value that may be obtained and which are not already associated with his claims folder. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for a disability characterized as right ear high frequency hearing loss was granted by the RO in September 1980, following review of evidence that included the veteran's service medical records and the report of an August 1980 VA audiometric examination. The RO assigned a zero (noncompensable) rating, based on the degree of impairment demonstrated on the VA examination report. The veteran currently contends that his hearing acuity has decreased, and that an increased rating for his service- connected unilateral defective hearing is warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by VA's Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Evaluations of unilateral defective hearing range from noncompensable to 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination test, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels, from level I for essentially normal acuity through XI for profound deafness. In situations where service connection has been granted for defective hearing involving only one ear, and the appellant does not have total deafness in both ears, the hearing acuity of the nonservice-connected ear is considered to be normal. 38 U.S.C.A. § 1160(a) (West 1991). In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 C.F.R. §§ 4.14, 4.85, Part 4 (1999), Diagnostic Codes 6100 to 6101. The Board notes that, during the pendency of the veteran's appeal, the criteria for evaluating hearing impairment were amended, effective as of June 10, 1999. The Court has held that, for the purpose of appeals, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Therefore, the Board will evaluate the veteran's symptomatology pursuant to both the criteria in effect prior to June 10, 1999, and the criteria in effect subsequent to that date, to determine which may be more favorable to the veteran. The report of the most recent clinical evaluation by VA of the veteran's hearing acuity, conducted in February 1998, shows that right ear hearing was manifested by pure tone thresholds of 20, 40, 65 and 70 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, for an average pure tone threshold of 49 decibels, and by speech recognition of 84 percent. It also shows that hearing in the nonservice- connected left ear was manifested by pure tone thresholds of 10, 25, 15 and 15 decibels at 1000, 2000, 3000 and 4000 hertz, respectively, and by speech recognition of 96 percent. The report of the February 1998 VA audiological examination does not demonstrate that total deafness in the nonservice- connected left ear has been identified, or that hearing loss in that ear is of such severity as to comprise total deafness. Accordingly, under the provisions of 38 U.S.C.A. § 1160(a) (West 1991), left ear hearing acuity, for purposes of this appeal, is deemed to be normal. Under the current criteria set forth in the Schedule, the veteran's right ear hearing loss disability is assigned Level II. 38 C.F.R. § 4.85, Table VI (1999); see 38 C.F.R. § 4.86 (1999). Pursuant to the provisions of 38 U.S.C.A. § 1160(a), as discussed above, the nonservice-connected left ear is deemed to have normal hearing acuity, inasmuch as total deafness in that ear is not shown, and is accordingly assigned Level I. This degree of unilateral hearing loss disability, as determined by the Schedule as set forth at 38 C.F.R. § 4.85, Table VII (1999), does not warrant the assignment of a rating greater than the noncompensable evaluation that is currently in effect. 38 C.F.R. § 4.85; Diagnostic Code 6100 (1999). The Board also notes that the degree of right ear hearing impairment demonstrated by the veteran in February 1998 does not satisfy the criteria for application of the provisions of 38 C.F.R. § 4.86 (1999) with regard to exceptional patterns of hearing impairment. Similarly, under the criteria in effect prior to June 10, 1999, the veteran's right ear hearing loss disability is assigned Level II, and the nonservice-connected left ear (again presumed under the statute to be manifested by normal hearing acuity) is assigned Level I. 38 C.F.R. § 4.87, Table VI (1998). As with the current criteria, this degree of unilateral hearing loss disability does not warrant the assignment of a rating greater than the current noncompensable evaluation. 38 C.F.R. § 4.87; Diagnostic Code 6100 (1998). The veteran has asserted, essentially, that he does not hear in his right ear as well as before, and his assertion is credible. In determining the actual degree of disability, however, the objective examination is more probative of the degree of impairment. Moreover, the Court has noted that the assignment of disability ratings for hearing impairment is derived by mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). In this case, the numeric designations do not produce a disability evaluation that would warrant the assignment of a compensable evaluation. 38 C.F.R. Part 4 Diagnostic Code 6100 (1999). Accordingly, the zero percent (noncompensable) rating currently in effect accurately reflects the degree of the veteran's right ear hearing impairment. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, §§ 4.85, 4.87 Diagnostic Code 6100 (1999). The Court has also held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. In reaching this decision as to the issue of entitlement to an increased rating for right ear hearing loss disability, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the impact the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Additionally, as the positive and negative evidence regarding the merits of an issue material to the determination of the matter is not evenly balanced and the preponderance of the evidence is against the veteran's claim, the resolution of doubt in his favor is not warranted. 38 U.S.C.A. § 5107(b). ORDER A claim for service connection for left ear hearing loss disability is not well grounded, and is accordingly denied. An increased (compensable) evaluation for right ear hear loss disability is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals