Citation NR: 9633051 Decision Date: 11/21/96 Archive Date: 12/02/96 DOCKET NO. 94-38 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased evaluation for hearing loss disability of the right ear, currently evaluated as 10 percent disabling. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Beach, Associate Counsel INTRODUCTION The veteran had active service from February 1968 to February 1978. The claims folder reflects 13 years of additional unverified active service, and the veteran has indicated that he entered active duty in December 1954. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 1994 rating decision of the Jackson, Mississippi, Regional Office (RO) which confirmed and continued a 10 percent evaluation for hearing loss disability of the right ear. The veteran testified before a hearing officer at the RO in June 1994. This case was previously before the Board in May 1996 when it was remanded. In September 1996, the veteran testified before a Member of the Board at the RO. He is not represented in his appeal. A preliminary review of the record does not indicate that the RO expressly considered referral of the veteran’s claims to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) (1995). In order to accord justice in an exceptional case where the schedular standards are found to be inadequate, the regulation provides that the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such 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. The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b) in the first instance. However, the Board is not precluded from raising the question and, in fact, is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the applicable law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has held further that the Board must address referral under 38 C.F.R. § 3.321(b) only where circumstances are presented which the Director of the Department of Veterans Affairs (VA)’s Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). The Board concludes that there is no basis for further action on this question. VAOPGCPREC 6-96 (1996). CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he is entitled to an increased evaluation for his hearing loss disability of the right ear as it is more disabling than the current evaluation reflects. He asserts that he is unable to continue in his trained career of teaching due to his hearing loss. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 veteran’s claim for an increased evaluation for hearing loss disability of the right ear. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained. 2. Hearing loss disability is manifested by an average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 hertz of 105+ decibels in the right ear and speech discrimination ability is 2 percent in the right ear. The left ear is not totally deaf. CONCLUSION OF LAW Hearing loss disability of the right ear is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.383, 4.7, 4.85, Part 4, Diagnostic Code 6101 (1995). 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 review of the record indicates that the veteran’s claim is plausible and that all relevant facts have been properly developed. Pursuant to the Board’s remand and the veteran’s request, the veteran was scheduled for a hearing before a Member of the Board at the RO. Disability ratings are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability as reflected by the evidence. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA’s Schedule for Rating Disabilities (Schedule), codified in 38 C.F.R. Part 4 (1995), which includes diagnostic codes which represent particular disabilities. The pertinent diagnostic code and provisions will be discussed below as appropriate. Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1995). Disability 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 tests together with the average hearing threshold level as measured by a puretone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for service- connected defective hearing, the Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. 38 C.F.R. Part 4, § 4.85, Diagnostic Codes 6100- 6110 (1995). Disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Service connection for hearing loss of the right ear was established in August 1978 and a 10 percent evaluation was assigned, effective from March 1, 1978. The grant of service connection was based upon a finding of aggravation of pre- existing hearing loss disability of the right ear during service. The left ear is not service connected. Medical records from Keesler Air Force Base, dating from March 1991 to March 1993, indicate that in April 1991, the veteran had normal hearing in the left ear and moderate severe conductive hearing loss in the right ear. It was noted that the veteran was fitted for a hearing aid. Medical records from Ochsner Clinic, dating from March 1993 to April 1993, reveal diagnoses of right profound sensorineural hearing loss. On the authorized audiological evaluation in March 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 15 30 35 55 The average pure tone threshold at 1,000, 2,000, 3,000 and 4,000 hertz was 105+ decibels in the right ear and 33 decibels in the left ear. Speech audiometry revealed speech recognition ability of 2 percent in the right ear and of 90 percent in the left ear. The veteran testified before a hearing officer at the RO in June 1994. He testified that: he is a teacher but is unable to distinguish words and cannot follow his chosen profession; he wears a hearing aid but it makes the voices sound tinny; he needs to be looking at someone when listening to them; he does not have a problem with telephone conversation as long as there is no background noise; and when there is any noise at all on his left side, then his hearing aid does not function. At a VA examination in July 1994, the veteran reported minimal if any hearing in the right ear. It was noted that the veteran had undergone revision and total obliteration of the mastoid cavity and external canal on the right ear. The diagnosis was marked loss of hearing in the right ear. There was no active infection. The veteran testified before a Member of the Board at the RO in September 1996. He testified that: he had surgery on his right ear which totally closed it off; his right ear is now totally useless; when he is looking straight at someone, he can do some lip work and comprehend what is said; however, with background noise, he is totally lost; he believes he is entitled to a 30 percent evaluation since his ability to hear and understand is diminished with background noise; and he has relatively normal hearing in the left ear. It should be noted that the provisions of 38 U.S.C.A. § 1160 (West 1991) and 38 C.F.R. § 3.383 (1995) reflect special consideration is to be accorded for cases involving loss of paired organs or extremities. As applied to this case, absent total deafness of the nonservice-connected left ear, the implication is that the left ear will be viewed as having normal hearing. See also 38 C.F.R. § 4.14 (1995), which specifies that “the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation...(is) to be avoided.” The Board accepts the veteran’s testimony as an accurate report of current symptoms. In addition, a professional described the condition as profound. However, the Court has recognized that the evaluation of hearing loss disability is a mechanical function. Clearly, the most probative evidence consists of the audiometric results, particularly from the VA. (In this regard, the VA puretone thresholds were comparable to the private results.) The Board has weighed the probative evidence of record. The veteran exhibits Level XI hearing in the right ear. This reflects a profound loss and is consistent with his testimony. His nonservice-connected left ear exhibits Level I (and is considered normal for rating purposes since it is not service-connected). The fact that the veteran may have been issued a hearing aid is considered in the evaluation. This degree of hearing impairment equates to a 10 percent evaluation. There is no other basis for a higher evaluation. Even when we accept the veteran’s testimony, there is no basis upon which to assign a higher evaluation. Furthermore, there is no indication of active infection or any other condition that would warrant a separate rating. Accordingly, an increased evaluation for hearing loss of the right ear is not warranted. ORDER Entitlement to an increased evaluation for hearing loss disability of the right ear is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -