Citation NR: 9727042 Decision Date: 08/04/97 Archive Date: 08/14/97 DOCKET NO. 95-30 859 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 2. Entitlement to a compensable evaluation for service- connected left ear hearing loss. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from January 1967 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). The RO denied reopening a claim for service connection for tinnitus and a compensable rating for service-connected left ear hearing loss. In February 1992, the RO denied service connection for tinnitus, a right knee injury, bilateral eye injuries and post-traumatic stress disorder (PTSD). The RO notified the veteran of these determinations by letter dated August 11, 1992. The veteran did not appeal the denial of service connection for a right knee injury. The veteran filed a Notice of Disagreement to the remaining issues on September 16, 1992, and the RO issued a Statement of the Case in October 1992. The veteran filed a Substantive Appeal on the issue of service connection for tinnitus, which was received at the RO on August 24, 1993. 38 C.F.R. § 20.204 (1996). In September 1995, the RO denied the veteran’s claim to reopen service connection for PTSD. The RO notified the veteran of this determination by letter dated September 12, 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his claim for service connection for tinnitus should be reopened. He maintains that he developed tinnitus as a result of noise exposure during active service in Vietnam. He maintains that this included noise from enemy rocket and mortar attacks in 1967 and 1968. He alleges he sustained injuries during an enemy rocket or mortar attack in 1967 or 1968, which caused constant ringing in his ears ever since that time. He also argues that his duties as a switchboard operator and as a helicopter door gunner for the 170th Aviation Company also exposed him to prolonged loud noise. He argues that the in-service noise exposure caused acoustic trauma which led to his current tinnitus. He argues that the evidence submitted is new and material and the entire record establishes service connection for tinnitus. The veteran also maintains that he is not adequately compensated for his service-connected left ear hearing loss. He argues that he must wear a hearing aid due to the severity of his hearing loss. The veteran argues that the medical evidence in support of his claim establishes entitlement to a compensable rating. 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 veteran has not submitted new and material evidence to reopen his claim for service connection for tinnitus; the claim is not reopened. It is also the decision of the Board that a preponderance of the evidence is against the claim for a compensable evaluation for service- connected left ear hearing loss. FINDINGS OF FACT 1. In February 1992, the RO denied service connection for tinnitus. The RO notified the veteran of that determination by letter dated August 11, 1992. The veteran filed a Notice of Disagreement on September 16, 1992, and the RO issued a Statement of the Case in October 1992. The veteran filed a Substantive Appeal, which was received at the RO on August 24, 1993. The veteran did not timely appeal. 2. The evidence obtained or submitted to reopen the claim for service connection includes VA and private medical evidence, statements in support of the claim and personal hearing testimony. 3. The foregoing evidence is either cumulative, not relevant to or probative of the issues or not competent, or does not present a reasonable possibility of changing the outcome of the prior decision. 4. All relevant evidence necessary for an equitable disposition of the increased rating issue has been obtained. 5. On VA audiometry examination in April 1994, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 22 decibels in the left ear and 18 decibels in the right ear; speech recognition ability was 92 percent, bilaterally, (levels I & I). 6. On private audiometry examination in June 1994, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 43 decibels in the left ear and 20 decibels in the right ear; speech recognition ability was 90 percent in the left ear and 94 percent in the right ear (levels I & I). 7. Service connection has not been established for right ear hearing loss, and the evidence does not show total deafness in both ears. CONCLUSIONS OF LAW 1. The February 1992 rating decision denying service connection for tinnitus is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1996). 2. New and material evidence to reopen the claim for service connection for tinnitus has not been submitted; the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). 3 The criteria for a compensable rating for left ear hearing loss have not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.383(a)(3), Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Code 6100 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The veteran seeks to reopen his claim for service connection for tinnitus. In February 1992, the RO denied service connection for tinnitus. The RO notified the veteran of that determination by letter dated August 11, 1992. The veteran filed a Notice of Disagreement on September 16, 1992, and the RO issued a Statement of the Case in October 1992. The veteran filed a Substantive Appeal, which was received at the RO on August 24, 1993. The veteran did not timely appeal. 38 C.F.R. § 20.302. The evidence of record at the time of that denial included service medical records, service records, VA reports of examinations and VA medical records and statements in support of the claim. The veteran’s service medical records do not disclose complaints or medical diagnoses of tinnitus. These records do show examination and treatment for unrelated symptoms in July 1969, but no complaints of tinnitus despite his post- service allegations and complaints of having experienced chronic tinnitus since exposure to noise during active service. These records also do not show treatment for any injuries sustained during a rocket or mortar attack during active service. The July 1969 medical separation examination does not include a diagnosis of tinnitus. In addition, the veteran specifically denied ever having hearing loss or ear trouble in the accompanying report of medical history, but he did report experiencing other medical problems at that time. The veteran filed an application for disability compensation in October 1969 for five medical disabilities, but he did not claim hearing loss or tinnitus. In December 1969, the RO granted service connection for left ear hearing loss based on the audiometry examination findings at separation. The veteran testified that he experienced constant ringing in his ears since separation from active service, but he did not seek post-service medical treatment for tinnitus prior to 1992. Transcript, pp. 12-13 (Jul. 1997). An April 1992 VA medical treatment plan for alcohol dependency, includes complaints of hearing impairment secondary to enemy rocket attacks and door gunner activities, as well as ringing in the ears. There was no medical diagnosis of tinnitus. The service records show the veteran served in Vietnam from August 1967 to March 2, 1968 as a switchboard operator; from March 3, 1968 to August 5, 1968 as a machine gunner for the 170th Aviation Company; from March 4, 1969 to August 26, 1969 as a switchboard operator, and he was incarcerated from August 27, 1969 to September 12, 1969, for convictions resulting from violation of Article 90,89. His DD Form 214 shows 57 days lost time from July 18, 1969 to September 12, 1969 for that conviction. These records show the veteran did not receive any awards or decorations showing combat action or wounds received during combat action with the enemy. The evidence shows the veteran was hospitalized in February 1992 primarily for alcohol dependence. The veteran complained of multiple somatic complaints which included tinnitus. The veteran was detoxified and referred for further evaluation and treatment. The final discharge diagnoses did not include tinnitus. During a VA PTSD examination in May 1992, the veteran reported the following in-service stressors: he was injured in an enemy rocket attack in or about December 1967 for which he was hospitalized for a month; in February 1968 he saw the body of a friend who had been killed during the TET Offensive; in April 1968 he learned that a Vietnamese civilian friend had been killed; in April 1968 he shot and killed a Viet Cong soldier from a helicopter and later saw the body after it had been retrieved by ground troops; in May 1968 his helicopter was shot down and he “received bad burns and was scared to death,” and exposure to numerous mortar attacks and dreams related to a time he was injured in a rocket attack. He did not complain of tinnitus. The diagnoses were alcohol dependence, PTSD traits, rule out masked depression, and schizotypal and anti-social personality disorders. During a VA orthopedic examination in May 1992, the veteran stated he lacerated his right knee during active duty while jumping off a truck. The examiner could find no abnormal right knee pathology. During a VA eye examination in May 1992, the veteran stated he sustained bilateral eye injuries from a rocket blast in Vietnam in 1967 when “things blew up in [his] face and eyes.” The assessment was refractive error. During a VA audiological examination in June 1992, the veteran reported bilateral hearing loss and constant tinnitus in his left ear, which first began after a rocket attack in 1968. The examiner assessed the right ear as normal and the left ear as having mild impairment. The RO denied service connection for tinnitus based on this evidence. The RO determined that the service medical records did not show a complaint or medical finding of tinnitus, or other supporting evidence showing the veteran sustained injury during claimed combat action during active service. The RO also determined that the medical evidence did not establish that post-service tinnitus was incurred or aggravated by any in-service events. The February 1992 rating decision denying service connection for tinnitus is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Despite the finality of prior rating decisions, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Veterans Appeals (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, the VA must reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566 (1993). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that “new evidence” is evidence that is not “merely cumulative” of other evidence of record. Id. The Court has also explained that evidence is “material” where it is “relevant to and probative of the issue at hand” and where it is of “sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. If the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court has reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, 7 Vet.App. 113 (1994). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet.App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table)). However, such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. If the evidence is “new” and “probative,” then it must be determined whether the evidence presents a reasonable possibility of changing the outcome of the prior decision based on all the evidence. If these conditions are met, then the evidence is both “new” and “material.” Evans, 9 Vet.App. at 284. Analysis The evidence added to the record since the prior final disallowance includes copies of service medical records, copies of service records, a copy of a page from a medical text, records obtained from the Environmental Support Group (ESG), VA and private medical evidence, statements in support of the claim and personal hearing testimony. The additional service medical records and service records are either duplicate copies, or are records containing cumulative information in service records, which were previously of record and considered by the RO in February 1992. This evidence is not new. 38 C.F.R. § 3.156(a). The copy of the page from a medical text shows hearing loss and tinnitus are signs and symptoms of acoustic trauma. This evidence is new and is materially relevant only insofar as it shows tinnitus can be secondary to acoustic trauma. It contains no medical opinion relating the veteran’s post- service tinnitus to active service; therefore, it is not probative of the issue whether the veteran sustained acoustic trauma secondary to noise exposure during active service. This evidence is not new and material. 38 C.F.R. § 3.156(a). The additional VA medical records include examination, evaluation and treatment for disabilities unrelated to tinnitus. These records are new because they were not previously of record, but they are not material because they are not relevant to or probative of the issue whether tinnitus was present during service or otherwise related to in-service noise exposure. This evidence is not material. 38 C.F.R. § 3.156(a). The August 1994 statement from a private physician with a copy of a June 1994 audiometry study is new because this evidence was not previously of record. The veteran related a long-term history of recurrent hearing loss and tinnitus, and a history of noise exposure in Vietnam. The physician stated that the June 1994 audiometry study showed bilateral sensorineural hearing loss. The examiner did not diagnose tinnitus or relate tinnitus as having started in service secondary to noise exposure. The veteran’s reported medical and service history is cumulative of evidence previously considered by the RO and is not new. This evidence is also not material because it is not relevant to or probative of the issue whether tinnitus was present during service or otherwise related to in-service noise exposure. This evidence is not new and material. 38 C.F.R. § 3.156(a). The VA medical records dated from July 1992 to November 1992, and July 1994 to August 1994, show complaints and medical diagnoses of tinnitus. These records are cumulative of previous medical records showing complaints and medical diagnoses of tinnitus. This evidence is cumulative of evidence previously considered by the RO in the February 1992 denial and not new. 38 C.F.R. § 3.156(a). The VA medical records also include a March 1992 report of VA audiometry examination. The veteran reported that he had experienced constant ringing in his ears ever since he was involved in some mortar explosions in 1968. The examiner stated that the audiometry study showed “severe bilateral sensory neural hearing loss. This is not consistent with his clinical hearing ... [t]he audiologist also reported that his results were extremely inconsistent. It is highly likely that this is not his true hearing level.” The examiner also stated that “[b]ecause of the inconsistency of the audiogram, I am unable to definitely diagnose the cause for his tinnitus but strongly believe that it is related to serious noise exposure.” On VA audiometry examination in April 1994, the veteran reported his hearing loss began in 1967 following a mortar attack in Vietnam. The examiner stated “[t]here is a significant history of noise exposure, both military and civilian,” which reportedly included combat in Vietnam and eleven years of post-service construction noise. The diagnoses did not include tinnitus and the examiner commented that the test results did not disclose a need for any medical follow-up at that time. The service history reported to the VA examiners is the same history reported in prior medical examination reports such as the June 1992 VA audiological examination report. The service history relating injury during enemy rocket and mortar attacks is cumulative of information previously considered by the RO. This history is not new. The medical evidence previously considered by the RO included post- service diagnoses of tinnitus. The March 1992 diagnosis of tinnitus is also cumulative of post-service tinnitus diagnoses previously considered by the RO. Therefore, this evidence is also not new. In addition, the March 1992 VA examiner stated that “[b]ecause of the inconsistency of the audiogram, I am unable to definitely diagnose the cause for his tinnitus but strongly believe that it is related to serious noise exposure.” Even assuming exposure to the in- service noise claimed by the veteran, the examiner could not diagnose the cause of the veteran’s tinnitus other than its relationship to noise exposure over twenty years after separation from active service. Finally, the April 1994 VA examiner relates a post-service history of noise exposure from eleven years of post-service construction noise. This examiner also does not relate post-service tinnitus to the claimed noise exposure during service. These examination reports are new in the sense that they were not previously of record. They are relevant only insofar as they demonstrate the veteran’s post-service tinnitus is noise-related. They are not probative of the basis for the RO’s prior denial, i.e., whether tinnitus was present during service. For these reasons and reasons discussed below in connection with the remaining additional evidence, they do not raise a reasonable possibility of changing the outcome when considered with the all evidence of record. 38 C.F.R. § 3.156(a). The veteran submitted several Operational Reports of the 52nd Combat Aviation Battalion for the time period November 1, 1967 to October 31, 1968. They show that Camp Holloway was the subject of an enemy sapper and satchel attack in January 1968 resulting in damage to the 88th S&S Battalion’s Ammunition Supply Dump, and daily enemy attacks during the 1968 TET Offensive, including the documented activities of the 170th Aviation Company from March to August 1968. It shows that a helicopter from the 170th Aviation Company crashed from engine failure on March 6, 1968, causing injury to one crew member. It shows that a helicopter from the 170th Aviation Company was hit by enemy fire on March 8, 1968, causing light damage and no injuries to the crew. This evidence is new and not previously considered by the RO. It is also relevant as corroborative evidence whether the veteran was exposed to noise during service in Vietnam. However, it does not raise a reasonable possibility of changing the outcome when considered with the all evidence of record. In Caluza, 7 Vet.App. at 504, the Court held that where the determinative issue involves medical etiology or diagnosis, competent medical evidence is required, but where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Lathan v. Brown, 7 Vet.App. 359, 365 (1995). In addition, when a disease is first diagnosed after discharge, service connection may be established by evidence demonstrating that the disease was in fact incurred during the veteran’s service. 38 C.F.R. § 3.303(d). The Court held that 38 U.S.C.A. § 1154(b) specifically allows combat veterans, in certain circumstances, to use lay evidence to establish service incurrence of a disease or injury. Caluza, 7 Vet.App. at 505. The provisions of 38 U.S.C.A. § 1154(b), however, do not provide that a combat veteran may establish service connection for a disability by lay evidence, as there remains a requirement for competent medical evidence to establish disability and nexus between disease or injury in service and post-service disability. The veteran’s service medical records do not disclose complaints or medical diagnoses of tinnitus. These records do show examination and treatment for unrelated symptoms, but no complaints of tinnitus despite the veteran’s post-service allegations and complaints of having experienced chronic tinnitus since exposure to noise during active service. The July 1969 medical separation examination does not include a diagnosis of tinnitus despite medical examination at that time. In addition, the veteran specifically denied ever having hearing loss or ear trouble in the accompanying report of medical history, but he did report experiencing other medical problems at that time. These were not claimed secondary to enemy rocket and mortar attacks. The veteran’s claim that the service medical personnel forgot to record these events, including the prolonged hospitalization and treatment for his injuries, is not consistent with the circumstances surrounding the veteran’s service which are shown in the records. Tr., p. 7; see 38 U.S.C.A. § 1154(b) (West 1991). The veteran alleges that he sustained serious physical injuries after being blown thirty-to-forty feet and into a bunker from an enemy rocket or mortar attack. He testified that this occurred when he “suffered the eye injury and some other injuries” when the mortar or rocket “went off behind me and blew me over into the bunker.” Tr., p. 6. In contrast, during the May 1992 VA eye examination, the veteran stated he sustained bilateral eye injuries from a rocket blast in Vietnam in 1967 when “things blew up in [his] face and eyes.” This is inconsistent with the claimed events. During the May 1992 VA PTSD examination, the veteran reported that his helicopter was shot down in May 1968 and he “received bad burns and was scared to death.” This is not corroborated by the ESG records and is inconsistent with the Operational Reports of the 52nd Combat Aviation Battalion as they relate to the activities for the 170th Aviation Company during that time. In addition, the veteran filed an application for disability compensation in October 1969 for five medical disabilities, but he did not claim hearing loss or tinnitus, despite his allegation that he has had constant ringing in his ears since the in-service events. The veteran testified that he experienced constant ringing in his ears since separation from active service, but he did not seek post-service medical treatment for tinnitus prior to 1992. Tr., pp. 12-13. The veteran’s DD Form 214 shows he did not receive any awards or decorations showing combat action or wounds received during combat action with the enemy. He testified that he did not “press for a Purple Heart because ... most of the time when a Purple Heart is issued is usually to the next of kin.” Tr., p. 25. Despite claiming that he sustained a knee injury during the enemy attack, the veteran stated during the May 1992 VA orthopedic examination that he lacerated his right knee during service while jumping off a truck. The veteran’s statements as they relate to combat action with the enemy conflict with the evidence and are not consistent with the circumstances surrounding his active duty in Vietnam. 38 U.S.C.A. § 1154(b). For these reasons, the Board finds that the additional evidence from ESG does not raise a reasonable possibility of changing the outcome when considered with the all evidence of record. 38 C.F.R. § 3.156(a). Finally, there is testimony and several statements from the veteran arguing that his current tinnitus is related to noise exposure during active service. The veteran’s testimony and statements are cumulative of evidence previously considered by the RO. In addition, the statements and testimony are not probative because the veteran is not competent to render his own medical diagnoses or conclusions. See Moray v. Brown, 5 Vet.App. 211, 214 (1993) (lay assertions of medical causation cannot service as the predicate to reopen a claim under § 5108). Thus, the claim is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Increased Rating The veteran’s claim for increased disability compensation is well-grounded based on the service medical records and the veteran’s statements of symptomatology. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The claims folder contains all available service medical records and the RO has requested and received records of VA treatment. The veteran underwent VA compensation examinations, and these reports are of record. The veteran also submitted a 1994 report of private audiometry testing. The evidence also includes a transcript of the veteran’s personal hearing testimony. The veteran has not identified additional relevant evidence in support of his claim that has not been obtained. The representative maintains that additional medical evidence is needed to support the claim for a compensable rating for hearing loss since it has been approximately three years since the last VA compensation examination. Generally, a VA re-examination will be required if it is likely that a disability has improved or if evidence indicates there has been a material change in a disability, or that the current rating may be incorrect. 38 C.F.R. § 3.327 (1996). The VA medical evidence in this case, including the probative VA audiometry examination findings and the current VA outpatient records, consistently demonstrate there has been no material change in the veteran’s left ear hearing loss disability between 1992 and 1994. In addition, the private audiometry study submitted by the veteran does not show any significant change in left ear hearing loss when compared to the probative VA clinical findings. In response to a question whether he has experienced increased problems related to his hearing loss since the April 1994 examination, the veteran testified “[y]eah, the ringing has gotten louder.” Tr., p. 27. When directly asked whether his left ear hearing loss had worsened, the veteran testified “[w]ell, I imagine I would have to be , you know, test (sic) because I use my hearing aid, I just have to turn it up a little, you know, like that.” Tr., p. 27. This evidence does not indicate there has been a material change in his left ear hearing loss disability. 38 C.F.R. § 3.327. The Board finds that all indicated development has been completed, and the VA has satisfied its duty to assist the veteran. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board notes that where an increase in a service-connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service-connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2 (1996), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). 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. Evaluations of hearing loss 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). Audiometry test results can be translated into a numeric designation ranging from level I to level XI to evaluate the degree of disability from 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. 38 C.F.R. Part 4, §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110. Analysis The records show normal left ear hearing acuity at entry onto active duty in 1967. The service medical records do not disclose complaints or medical diagnoses of hearing loss during active duty in Vietnam, but audiometry testing during the July 1969 separation medical examination showed an 80 decibel threshold level in the left ear at 4,000 hertz. In December 1969, the RO granted service connection for left ear hearing loss based on the audiometry examination findings at separation. The RO assigned a noncompensable rating, effective September 18, 1969. The evidence includes VA audiometry examination and evaluation in March 1992. Based on that study and the examination, the examiner stated that the audiometry study showed “severe bilateral sensory neural hearing loss. This is not consistent with his clinical hearing ... [t]he audiologist also reported that his results were extremely inconsistent. It is highly likely that this is not his true hearing level.” On VA audiometry examination in June 1992, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 43 decibels in the left ear and 23 decibels in the right ear; speech recognition ability was 88 percent in the left ear 96 percent in the right ear (levels II & I). On VA audiometry examination in July 1992, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 25 decibels in the left ear and 21 decibels in the right ear. Speech recognition ability scores were reported as 68 percent and 88 percent in the left ear, and 80 percent and 92 percent in the right ear. The examiner indicated that the findings represented a good estimate of the veteran’s organic hearing loss, but were not adequate for rating the veteran’s discrimination ability and that frequent re-instruction had been required. On VA audiometry examination in April 1994, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 22 decibels in the left ear and 18 decibels in the right ear; speech recognition ability was 92 percent, bilaterally, (levels I & I). On private audiometry examination in June 1994, the average pure tone air conduction threshold for the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz was 43 decibels in the left ear and 20 decibels in the right ear; speech recognition ability was 90 percent in the left ear and 94 percent in the right ear (levels I & I). The March 1992 and July 1992 VA audiometry examinations are not persuasive evidence in this case. The March 1992 VA examiner stated that the findings were not consistent with the veteran’s clinical hearing and the results were “extremely inconsistent.” That examiner also stated that “[i]t is highly likely that this is not his true hearing level.” While the July 1992 VA examiner stated that the audiometry examination findings showed a good estimate of organic hearing loss, i.e., an average pure tone air conduction threshold of 25 decibels in the left ear and 21 decibels in the right ear, that examiner stated the findings were not adequate for rating purposes due to frequent re- instruction that had been required in order to obtain discrimination scores. The persuasive evidence consists of the remaining VA audiometry examination findings from June 1992 to June 1994. In June 1992, the average pure tone air conduction threshold was 43 decibels in the left ear and 23 decibels in the right ear; speech recognition ability was 88 percent in the left ear 96 percent in the right ear. These results equate to level II for the left ear and level I for the right ear. In April 1994, the average pure tone air conduction threshold was 22 decibels in the left ear and 18 decibels in the right ear; speech recognition ability was 92 percent. These results equate to level I for the left ear and level I for the right ear. In June 1994, the average pure tone air conduction threshold was 43 decibels in the left ear and 20 decibels in the right ear; speech recognition ability was 90 percent in the left ear and 94 percent in the right ear. These results equate to level I for the left ear and level I for the right ear. The tests results have been relatively consistent and actually show lowered average decibel threshold levels in the left ear in 1994 as compared to 1992. The application of any of these test results shows that a compensable rating is not warranted. The veteran's right ear hearing acuity is considered to be normal for rating purposes because he is not service-connected for right ear hearing loss, and the evidence does not show that he has a total loss of hearing in both ears. See 38 C.F.R. § 3.383(a)(3). Moreover, the evidence shows that a compensable rating would not be established even if service connection for right ear hearing loss were in effect. In addition, while the veteran has been provided a hearing aid due to left ear hearing loss, the evaluations derived from the Schedule for Rating Disabilities are intended to make proper allowance for improvement by hearing aids, and examination to determine this improvement is therefore unnecessary. 38 C.F.R. § 4.86. Therefore, the evidence shows that the current hearing acuity falls within the criteria for zero percent under Diagnostic Code 6100. 38 C.F.R. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.383(a)(3), 4.85, 4.86, 4.87. The Board finds that the evidence is not evenly balanced and the criteria for a compensable rating for left ear hearing loss have not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.383(a)(3), Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Code 6100. ORDER New and material evidence not having been submitted to reopen service connection for tinnitus, the claim is not reopened. A compensable rating for left ear hearing loss is denied. RICHARD E. COPPOLA Acting 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 & Supp. 1996), 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 -