93 Decision Citation: BVA 93-07781 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-47 141 ) DATE ) ) ) THE ISSUES Entitlement to an increased (compensable) rating for bilateral hearing loss. Entitlement to an increased rating for bilateral tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from February 1949 to February 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 1990 rating decision by the St. Petersburg, Florida, Regional Office (RO), which decreased the evaluation for the veteran's bilateral hearing loss from 10 percent to noncompensable, and denied the veteran's claim for an increased rating for bilateral tinnitus, currently evaluated as 10 percent disabling. The notice of disagreement was received in February 1990. The statement of the case was issued in April 1990. A substantive appeal was received in May 1990. A personal hearing before a hearing officer was conducted in July 1990. A supplemental statement of the case was issued in July 1990. The case was received and docketed at the Board in October 1990. In May 1991, the Board remanded this case with instructions to afford the veteran a VA audiology examination. A March 1992 rating decision by the RO confirmed the previous evaluations for the veteran's disabilities. A supplemental statement of the case was issued in April 1992. An April 1992 statement from the veteran indicated that he wished to continue his appeal. The veteran was afforded a personal hearing before a hearing officer in September 1992. A supplemental statement of the case was issued in September 1992. The case was received and docketed at the Board in February 1993. The veteran's representative, the Disabled American Veterans, submitted additional written argument in February 1993, and the case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bilateral hearing loss has not improved and that, in fact, it has increased in severity. He believes that the decrease in evaluation made by the February 1990 rating decision was incorrect. The veteran argues that the VA audiology examinations do not reflect his actual ability to hear in the real world. He states that background noises make it difficult for him to hear conversation, and that he has lost much of his high frequency hearing. He further notes that he has constant ringing in his ear as a result of his tinnitus. DECISION OF THE BOARD In accordance with the decision of the United States Court of Veterans Appeals (Court) in Fugere v. Derwinski, 1 Vet.App. 103 (1990), and its affirmance by the United States Court of Appeals for the Federal Circuit, it is the decision of the Board that the February 1990 rating decision erroneously reduced the veteran's disability evaluation for his bilateral hearing loss. Therefore, a 10 percent evaluation is restored. In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, 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 a rating in excess of 10 percent for bilateral hearing loss, and is also against the veteran's claim for an increased rating for bilateral tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The reduction of the veteran's 10 percent disability evaluation for bilateral hearing loss to noncompensable by a February 1990 rating decision was improper. 3. The veteran's right ear hearing acuity is at level II. 4. The veteran's left ear hearing acuity is at level III. 5. The veteran has bilateral constant tinnitus. CONCLUSIONS OF LAW 1. A 10 percent evaluation is warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Code 6293 (effective prior to December 18, 1987); Fugere v. Derwinski, 1 Vet. App. 103 (1990). 2. The schedular criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.85, 4.87, Diagnostic Code 6100, 6101, 6102 (1992). 3. The veteran's bilateral tinnitus is 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.87a, Code 6260 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The veteran has been afforded two Department of Veterans Affairs (VA) audiology examinations in order to confirm the level of hearing loss. The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). I. HEARING LOSS Prior to the February 1990 rating decision, the veteran's bilateral hearing loss was rated 10 percent disabling, based on the criteria in effect at the time when an August 1980 rating decision granted service-connection for bilateral hearing loss. The February 1990 rating decision, which reduced the evaluation to noncompensable, was based on the findings of a VA audiometric evaluation conducted in January 1990 that used new rating criteria and testing methods for bilateral defective hearing which had become effective December 18, 1987. However, a provision in the VA's Adjudication Procedure Manual, M21-1, stated that if a decrease in evaluation of defective hearing was due to changed criteria or testing methods, rather than a change in the veteran's hearing acuity, then the RO was to apply the old criteria and make no reduction. VA Adjudication Procedure Manual, M21-1, Part 1, Paragraph 50.13(b). Evaluations of bilateral hearing loss range from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297; effective prior to December 18, 1987. As the facts of this case show that the reduction of the evaluation for the veteran's bilateral hearing loss by the February 1990 rating decision was based on the application of audiometric findings resulting from new testing methods, such reduction was in contradiction of M21-1, Part 1, Paragraph 50.13(b), and, therefore, improper. Hence, in accordance with the decision in Fugere, the Board holds that the veteran's evaluation for his bilateral hearing loss is restored to 10 percent, as of the date of reduction, which was May 1, 1990. This case was initiated by the veteran's March 1988 claim for an evaluation greater than 10 percent for his bilateral hearing loss. The evaluation of service-connected disabilities is based on the average impairment they produce, as determined by considering current symptomatology in the light of appropriate rating schedular criteria. 38 U.S.C.A. § 1155. Consideration is also given to the potential application of the various provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. The veteran was originally service connected for bilateral hearing loss in an August 1980 rating decision. He was service connected on the basis of service medical records which note that he was exposed to a mortar blast in April 1951. A July 1980 VA examination confirmed that the veteran had hearing loss. This examination showed that the veteran had puretone thresholds in the right ear of 10, 10, and 50 decibels for the frequencies of 500, 1000, and 2000 cycles per second respectively. The left ear had 5, 10, and 65 at these frequencies. Speech recognition ability was 88 percent correct in the right ear and 94 percent correct in the left ear. Current medical evidence regarding the veteran's bilateral hearing loss includes the findings of VA audiology examinations conducted in January 1990 and October 1991, and the veteran's testimony at personal hearings in July 1990 and September 1992. In order for the veteran to receive a 20 percent evaluation for his bilateral hearing loss, the veteran's hearing acuity levels must be shown to be at III and VII, and certain higher combinations, as required by 38 C.F.R. §§ 4.85, 4.87, Code 6102. The results of the January 1990 VA audiology examination showed pure tone thresholds in the right ear of 20, 70, 90, and 95 decibels for the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second, respectively. In the left ear, the thresholds were 25, 80, 90, and 95 at these frequencies. The thresholds at the frequencies of normal conversation, which are 1,000, 2,000, 3,000, and 4,000 cycles per second, were averaged as required by law. The average thresholds were 69 decibels in the right ear and 73 decibels in the left ear. Speech recognition ability was 92 percent correct in the right ear and 76 percent correct in the left ear. These results are commensurate with level II hearing in the right ear and level IV hearing in the left ear, which yields a noncompensable evaluation, in accordance with the schedular criteria. 38 C.F.R. §§ 4.85, 4.87, Code 6100. At the veteran's July 1990 hearing, he indicated that he had problems hearing conversation over background noises. He also stated that he had difficulty in hearing sirens and emergency vehicles when he was driving. He believed that his hearing had become worse over the past several years. The veteran further testified that his tinnitus made it difficult to understand conversation. He noted that he had been wearing hearing aids since 1980. The veteran was afforded a second VA audiology examination in October 1991. On this examination, the veteran showed pure tone thresholds in the right ear of 25, 70, 90, and 95 decibels for the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second, respectively. The thresholds were 25, 80, 85, and 90 at the same frequencies for the left ear. The average thresholds were 70 for the right ear and 70 for the left ear. Speech recognition ability was 96 percent for the right ear and 84 percent for the left ear. These findings show that the veteran has level II hearing in the right ear and level III hearing in the left ear. Again, this yields a noncompensable evaluation in accordance with the schedular criteria. 38 C.F.R. §§ 4.85, 4.87, Code 6100. At the veteran's September 1992 hearing, he again testified that his hearing had not improved, but had actually gotten worse. He noted that he used a special telephone to amplify the volume, and continued to wear hearing aids. He stated that his tinnitus was constant, and that background noise made it difficult for him to understand conversation. After a thorough consideration of the veteran's contentions and the medical evidence of record, the Board is unable to find that an evaluation greater than 10 percent is warranted for the veteran's bilateral hearing loss. Both the findings of the January 1990 VA examination and the October 1991 VA examination revealed that the veteran warrants a noncompensable evaluation under the laws and regulations currently in effect. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100. The evidence shows that the current 10 percent evaluation compensates the veteran for his bilateral hearing loss. The evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1992). 38 C.F.R. § 3.321 is not for application, in that the veteran's hearing loss does not result in frequent hospitalization or marked interference with employment. Accordingly, the veteran's claim must be denied. II. TINNITUS The record shows that the veteran is currently in receipt of the highest schedular evaluation allowed under regulations for bilateral tinnitus. Both the January 1990 VA examination and the October 1991 VA examination note that the veteran has constant bilateral tinnitus. Persistent tinnitus as a symptom of head injury, concussion, or acoustic trauma warrants a 10 percent evaluation. 38 C.F.R. § 4.87a, Code 6260. In addition, an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 is not for application, as the veteran's tinnitus does not require frequent hospitalization or result in marked interference with employment. Therefore, an increased rating for bilateral tinnitus cannot be awarded. ORDER Restoration of a 10 percent disability evaluation for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an increased rating for bilateral tinnitus, currently evaluated as 10 percent disabling, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * M. SABULSKY J. U. JOHNSON *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.