BVA9405982 DOCKET NO. 93-03 643 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to an increased (compensable) evaluation for left ear hearing loss disability. 3. Entitlement to an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION This appeal arises from a rating decision of September 1991, in which the Pittsburgh, Pennsylvania, Regional Office (RO) granted service connection for left ear hearing loss disability, with an effective date of May 8, 1991, and assigned a noncom-pensable evaluation therefor; and in which the RO denied service connection for right ear hearing loss disability. In a supple-mental statement of the case, dated in October 1992, the RO held that an earlier effective date for the granting of service connection of left ear hearing loss was denied. The veteran has perfected an appeal with regard to these three matters, as they are set forth on the title page of this decision. The veteran served on active duty from April 1983 to April 1987. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for right ear hearing loss disability, a compensable evaluation for left ear hearing loss disability, and an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability. He specifically alleges that he has bilateral hearing problems that began during service, and that any grant of service connection for hearing loss should become effective as of the day he separated from service. He also alleges that his hearing problems impair his ability to perform his job, and points out that the report of a private hearing examination shows that his hearing problems are bilateral in nature. 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 he has not submitted a well-grounded claim for service connection for right ear hearing loss disability. It is also the decision of the Board, based on its review of the relevant evidence and for the following reasons and bases, that the preponderance of the evidence is against his claims for a compensable evaluation for left ear hearing loss disability, and for an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been developed. 2. Right ear hearing loss disability is not currently shown. 3. Left ear hearing loss disability is manifested by an average pure tone threshold of 26 decibels, and by speech recognition of 94 percent. Total right ear deafness is not shown. 4. With regard to the veteran's left ear hearing loss dis-ability, neither an exceptional nor unusual disability picture has been demonstrated so as to render impractical the application of the regular schedular standards. 5. The veteran's initial application for service connection for left ear hearing loss disability was received by the Department of Veterans Affairs (VA) on May 8, 1991, more than four years after his separation from active service in April 1987. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for right ear hearing loss disability. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.385 (1993). 2. The criteria for a compensable evaluation for left ear hearing loss disability are not met. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.85, 4.87, Diagnostic Code 6100 (1993). 3. An effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability is not warranted. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. §§ 3.155, 3.400(b)(2)(i) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, his appeal fails as to that claim, and we are under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); see Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the case before us, we find that the issue of entitlement to service connection for right ear hearing loss disability is not well grounded, the implications of which are discussed below. With regard to the other two issues that are the subject of this decision, we find that these claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, the veteran has presented claims that are plausible. Since he has not asserted that any records of probative value that may be obtained and which are not already associated with his claims folder are available, we accordingly find that all relevant evidence has been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Each of the issues that has been presented for appeal is discussed below. I. Service Connection for Right Ear Hearing Loss Disability As we indicated above, the threshold question that must be resolved with regard to each issue is whether the veteran has submitted evidence that each claim is well grounded; that is, that the claim is plausible. In the case before us, we find that the evidence does not demonstrate that right ear hearing loss disability is currently manifested. We therefore must conclude that the veteran's claim for service connection for that disability is not well grounded and accordingly fails, in that it is not plausible that service connection can be granted for a disability that is not currently shown to exist. The circumstances under which VA can grant service connection for hearing loss are set forth, in part, at 38 C.F.R. § 3.385 (1993). This regulatory provision specifies the degree of hearing impairment that must be demonstrated for hearing loss to be considered a disability for which VA benefits can be awarded. In particular, this provision states that hearing loss is a disability for VA benefits purposes if it is manifested by at least one pure tone threshold of 40 decibels at either 500, 1000, 2000, 3000 or 4000 hertz; by pure tone thresholds greater than 25 decibels for at least three of those frequencies; or by speech recognition that is less than 94 percent. The report of the most recent audiology evaluation conducted by VA, which is that dated in July 1991, does not show that the criteria set forth at 38 C.F.R. § 3.385 (1993) have been satis-fied. None of the pure tone thresholds recorded for the right ear at the pertinent frequencies are greater than 35 decibels, and only one is greater than 25 decibels. In addition, speech recognition was recorded as 98 percent. We note that the evidence of record does not include the report of any other VA audiology evaluation, nor has the veteran indicated that he has been tested by VA other than in July 1991; we must accordingly assume that this is the report of the most recent VA audiology evaluation, and therefore is the most current record, prepared by VA, of the veteran's hearing loss. The United States Court of Veterans Appeals (Court) has held that failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. In Rabideau v. Derwinski, 2 Vet.App. 141 (1992), wherein a veteran sought service connection for hypertension, the Court explained that, "[b]ecause of the absence of any evidence of current hypertension...appellant's claim is not plausible and therefore, not well grounded." Rabideau, at 144. We note that the veteran has submitted the report of a private audiology evaluation, dated in April 1992 and which appears to indicate a "hearing threshold" of 45 decibels at 3000 hertz. We must point out, however, that, under governing VA regulations, reports of private audiometric examinations are not acceptable for purposes of determining whether VA compensation is warranted; see M21-1, Part VI, Chapter 7, Subchapter II, Paragraph 7.11(b)(3), which states that VA will "not accept audio examinations conducted at facilities other than authorized [VA] Audiology and Speech Pathology Clinics for rating compensation claims." To reiterate, we do not find that the evidence demonstrates that right ear hearing loss disability is currently manifested. Since service connection cannot be granted for a disability that is not currently shown, we must conclude that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial person that service connection for such a disability can be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991), and that his claim for service connection for right ear hearing loss disability is not well grounded. U.S.C.A. § 5107(a) (West 1991). II. A Compensable Evaluation for Left Ear Hearing Loss Disability Service connection for left ear hearing loss disability was granted by the Pittsburgh, Pennsylvania, RO by means of a September 1991 rating decision, following review of the evidence of record to include the veteran's service medical records and the report of a July 1991 VA audiological evaluation. A noncompensable evaluation was assigned. The veteran appealed the assignment of that noncompensable evaluation, and has contended that a compensable rating is warranted. After a review of the record, however, we find that his contentions are not supported by the evidence, and that his claim fails. The degree of compensation appropriate for service-connected hearing loss disability is determined by the application of provisions set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). Under the pertinent regulatory provisions, evaluations of unilateral defective hearing range from noncompensable to 10 percent, based on the degree of hearing impairment as determined by audiological evaluation. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.87, Diagnostic Codes 6100 and 6101 (1993). In the case at hand, the veteran has established service connection for only left ear hearing loss disability; as indicated above, service connection for right ear hearing loss disability has not been established. Under the provisions of 38 U.S.C.A. § 1160(a) (West 1991), when service connection has been established for unilateral hearing loss disability, the severity of any hearing impairment in the ear that is nonservice-connected will be considered, for VA rating purposes, only when total deafness in the nonservice-connected ear is demonstrated. The report of the most recent VA audiology evaluation, which is the evaluation that was conducted in July 1991, shows that right ear total deafness was not demonstrated, but rather that right ear hearing was "within normal limits except...at 3000 hertz..."; right ear hearing was manifested at that time by an average pure tone threshold, for 1000, 2000, 3000 and 4000 hertz, of 20 decibels, and by speech recognition of 98 percent. This same report shows that left ear hearing was manifested at the same frequencies by an average pure tone threshold of 26 decibels, and by speech recognition of 94 percent. Under the criteria set forth at 38 C.F.R. § 4.87 (1993), both the service-connected left ear and the nonservice-connected right ear are deemed to be Level I (for essentially normal hearing), according to Table VI, Numeric Designation of Hearing Impairment. We note that the veteran has also submitted the report of a private audiometric evaluation, dated in April 1992, indicating a left ear "hearing threshold" of 50 decibels at 3000 hertz. As we have previously discussed, reports of private audiometric examinations are not accepted by VA for rating compensation claims. (We must also point out to the veteran that, even if we were to utilize this report for rating purposes, the findings contained therein show an average left ear "hearing threshold" of 28 decibels, for 1000, 2000, 3000 and 4000 decibels, with speech recognition of 100 percent. This report also does not show that total deafness in the right ear is manifested. Again, under the criteria set forth in 38 C.F.R. § 4.87 (1993), both the service- connected left ear and the nonservice-connected right ear are deemed to be Level I (for essentially normal hearing), according to Table VI, Numeric Designation of Hearing Impairment. Even if we were to ignore our own regulations and accept this report for the purpose of determining the appropriate rating for the veteran's left ear hearing loss disability, we would find that a compensable evaluation would not be warranted.) In view of the foregoing, therefore, we find that the prepon-derance of the evidence is against the veteran's claim for a compensable evaluation for left ear hearing loss disability. 38 U.S.C.A. §§ 1155, 1160(a) (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.87, Diagnostic Code 6100 (1993). In addition, we do not find that this disability 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. 38 C.F.R. § 3.321(b)(1) (1993). III. An Effective Date Earlier Than May 8, 1991, for the Granting of Service Connection for Left Ear Hearing Loss Disability The veteran, as we have previously indicated, contends that an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability should be assigned. After a review of the record, however, we find that his contentions with regard to this issue are not supported by the evidence, and that his claim for an earlier effective date fails. The basic facts are not in dispute. The veteran separated from active service in April 1987. His initial claim for VA benefits, in which he identified "hearing condition" as the "sickness, disease or injury" for which he was seeking benefits, was received by VA on May 8, 1991. The record does not show that he filed an application for VA benefits prior to the application that was received on May 8, 1991, nor has he alleged otherwise. Similarly, the record does not show that he was treated for hearing problems by VA prior to May 8, 1991, nor does it show that, prior to May 8, 1991, he communicated with VA or submitted records that could be construed as an informal claim for benefits; we note that he indicated on his application, "I have not been to any doctors for this condition since discharged from the Navy." See 38 C.F.R. § 3.155 (1993). The applicable statutory and regulatory provisions stipulate that "the effective date of an award based on an original claim...shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 1991). (Emphasis added.) In the case before us, it is uncontroverted that the date of receipt of the veteran's initial claim for benefits was May 8, 1991. While the provisions of 38 C.F.R. § 3.400(b)(2)(i) (1993) allow for the establishment of the "day following separation or the date entitlement arose" as the appropriate effective date for the granting of direct service connection "if claim is received within 1 year after separation from service," we must reiterate that the veteran's claim was not received "within 1 year" after his separation from service in April 1987, but rather more than four years after his separation from service. In such circumstances, according to the provisions of 38 C.F.R. § 3.400(b)(2)(i) (1993), the appropriate effective date for the grant of direct service connection is the "date of receipt of claim, or date entitlement arose, whichever is later." (Emphasis added.) Here, the later date is the date that the veteran's claim was received, which was May 8, 1991. In view of the foregoing, we must conclude that the preponderance of the evidence is against the veteran's claim for an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. §§ 3.155, 3.400(b)(2)(i) (1993). ORDER Service connection for right ear hearing loss disability is denied. An increased (compensable) evaluation for left ear hearing loss disability is denied. Entitlement to an effective date earlier than May 8, 1991, for the granting of service connection for left ear hearing loss disability is denied. The appeal is denied in its entirety. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) PAUL M. SELFON, M.D. LAWRENCE M. SULLIVAN *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.