BVA9500691 DOCKET NO. 91-51 171 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The appellant served on active duty from March 1971 to March 1975. This matter comes before the Board of Veterans' Appeals (the Board) from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant has been service connected for hearing loss of the left ear since 1990. By decision in October 1992, the Board granted service connection for his right ear hearing loss, and in its November 1993 determination, the RO assigned his service-connected bilateral hearing loss a noncompensable rating. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the currently assigned noncompensable evaluation for his service-connected bilateral hearing loss does not adequately reflect the severity of his condition. The appellant reports that he was denied employment with the Cleveland Police Department because of his hearing loss, but was able to get a job as a sheriff because they did not require that him to take a physical examination. 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 weight of the evidence is against the appellant's claim for an increased (compensable) evaluation for bilateral hearing loss. FINDINGS OF FACT 1. On VA audiometric examination in November 1992, the appellant's average right ear pure tone air conduction threshold for frequencies of 1,000, 2,000, 3,000, and 4,000 hertz was 30 decibels; his speech discrimination was 100 percent correct in the right ear (level I). 2. On VA audiometric examination in November 1992, his average left ear pure tone air conduction threshold for frequencies of 1,000, 2,000, 3,000, and 4,000 hertz was 40 decibels; his speech discrimination was 100 percent correct in the left ear (level I). 3. The appellant's service-connected bilateral hearing loss is not shown to present either an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has found the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the appellant's evidentiary assertion that his service connected disability warrants a compensable rating. Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been developed and no further assistance is necessary to comply with the statutory duty to assist. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The following is a summary of the history regarding the appellant's hearing loss. The service separation examination, conducted in March 1975, noted bilateral, mild to moderate high frequency hearing loss. The appellant underwent private audiological testing in November 1977, at which time his hearing was found to be within normal limits, bilaterally, with a slight 4,000 hertz notch and excellent discrimination. In May 1990 a VA audiological examination revealed that the appellant had no history of ear infections or having worn hearing aids. The appellant was diagnosed as having high frequency sensory hearing loss, bilaterally. On VA audiometric examination in May 1990, the average pure tone air conduction threshold for frequencies of 1,000, 2,000, 3,000, and 4,000 hertz was 29 decibels in the right ear and 36 decibels in the left ear. Speech discrimination was 96 percent correct in both ears. A July 1990 rating decision established service connection for high frequency hearing loss in the left ear, assigning a noncompensable rating. Entitlement to service-connection for hearing loss in the right ear was denied. The appellant testified at a February 1991 hearing that his hearing problems began in 1972 or 1973, while he was in service. He also reported that in 1976 the Cleveland Police Department would not hire him due to hearing deficiencies, but that he was later able to get a job as a sheriff as they did not require a hearing test. This case was previously before the Board in October 1992. At that time, the appellant was seeking entitlement to service connection for hearing loss in the right ear and entitlement to an increased (compensable) evaluation for hearing loss in the left ear. The Board granted service-connection for hearing loss of the right ear and remanded the case to conduct a current audiological examination so that the RO could then render a determination on the issue of an increased (compensable) evaluation for bilateral hearing loss. A VA audiological examination was conducted in November 1992. Subsequently, in a rating determination of November 1993, the RO denied an increased (compensable) evaluation for bilateral hearing loss. The basis for evaluating defective hearing is the impairment of auditory acuity within the range of 1,000 to 4,000 hertz, according to findings on audiology clinic examinations. For VA purposes, impairment of auditory acuity contemplates the organic hearing loss for speech. 38 C.F.R. § 4.87. The examinations permit a standardization of methods and uniform conditions, so that the performance of each person can be compared with that of a person having normal hearing acuity. The audiometric findings will provide an accurate basis upon which to evaluate the veteran's entitlement to disability compensation, as provided by 38 C.F.R. § 4.85. 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 hertz (cycles per second). Audiometric test results can be translated into a numeric designation ranging from level I to level XI to evaluate the degree of disability from bilateral service-connected defective hearing. The revised Schedule for Rating Disabilities establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. In addition, the evaluations derived from the schedule contemplate the proper allowance for improvement of hearing acuity by hearing aids. 38 C.F.R. Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 to 6110. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Specifically, assignment of disability ratings for hearing impairment are 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, 349 (1992). The record shows that the appellant underwent VA audiometric testing in November 1992. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 50 40 LEFT 10 10 40 60 50 The reported findings reveal that the appellant had an average pure tone air conduction threshold of 30 decibels in the right ear and 40 decibels in the left ear. Speech recognition ability was found to be 100 percent correct in the right and left ears. The test summary indicated that the appellant demonstrated a bilateral high frequency sensorineural hearing loss. Under VA schedular standards, the reported test results from November 1992 reveal that the appellant's hearing acuity in both the right and left ears was at level I. Bilateral hearing impairment, classified as level I, is not compensable. 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100. Consequently, the Board concludes that entitlement to a compensable schedular evaluation for his bilateral hearing loss is not established. To be assigned a compensable evaluation under VA schedular standards, the average pure tone thresholds and/or speech recognition scores would have to reflect more significantly impaired hearing than is evident in the most recent audiometric examinations. Finally, the evidence of record does not show that the appellant's service-connected bilateral hearing disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Specifically, the appellant is shown by the record to be currently employed in his vocational field of choice, law enforcement. His service- connected noncompensable high frequency hearing disability has not required frequent periods of hospitalization, nor has it resulted in marked interference in employment as to render impracticable the application of regular schedular standards. 38 C.F.R. § 3.321(b) (1993). ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. J. F. GOUGH 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.