Citation Nr: 0006033 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-04 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether injuries sustained in an automobile accident on March 7, 1948, were incurred in the line of duty. 2. Entitlement to service connection for a nervous disorder. 3. Entitlement to service connection for tinea versicolor. 4. Entitlement to service connection for a bilateral leg disability. 5. Entitlement to service connection for a skin disorder secondary to in-service exposure to Agent Orange. 6. Entitlement to service connection for a sinus disorder. 7. Entitlement to service connection for arthritis of multiple joints. 8. Evaluation of bilateral hearing loss, rated as noncompensably disabling from August 8, 1994. 9. Entitlement to an increased disability rating for lumbosacral strain with numbness and tingling of the legs, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from July 16, 1945, to February 1, 1949, from February 8, 1949, to November 3, 1952, and from December 2, 1952, to November 8, 1968. This appeal arises from an April 1995 rating action of the Huntington, West Virginia, regional office (RO). In that decision, the RO, in part, denied service connection for a nervous disorder, tinea versicolor, a bilateral leg disability, a skin disorder secondary to in-service exposure to Agent Orange, a sinus disorder, and arthritis of multiple joints. Service connection for bilateral hearing loss was denied and a noncompensable evaluation assigned effective from August 8, 1994. An increased disability rating of 20 percent for service-connected lumbosacral strain with numbness and tingling of the legs was granted. Subsequently, by an August 1995 rating action, the RO found that a brain concussion, a skull contusion, and a ruptured right eardrum were injuries that were not incurred in the line of duty. FINDINGS OF FACT 1. Injuries that occurred as a result of a March 7, 1948, automobile accident were not the result of the veteran's own willful misconduct; the injuries were not incurred while the veteran was absent without leave or confined under the sentence of a civil or military court. 2. The record contains no competent evidence associating any nervous disorder that the veteran may have to his active military duty. 3. The record contains no competent evidence associating any tinea versicolor that the veteran may have to his active military duty. 4. The record contains no competent evidence associating any bilateral leg disability that the veteran may have to his active military duty. 5. The record contains no competent evidence associating any skin disorder secondary to Agent Orange exposure to the veteran's active military duty. 6. The record contains no competent evidence associating any sinus disorder that the veteran may have to his active military duty. 7. The record contains no competent evidence associating any arthritis that the veteran may have to his active military duty. 8. The most recent audiometric test results, which were obtained during a compensation examination conducted by VA in August 1998 correspond to numeric designations no worse than I for each ear. CONCLUSIONS OF LAW 1. Injuries sustained as a result of a March 7, 1948, automobile accident were incurred in the line of duty. 38 U.S.C.A. § 105 (West 1991); 38 C.F.R. §§ 3.1, 3.301 (1999). 2. The claim of entitlement to service connection for a nervous disorder, tinea versicolor, a bilateral leg disability, skin disorder secondary to in-service exposure to Agent Orange, a sinus disorder, or arthritis of multiple joints is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 3. A compensable disability evaluation for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, § 4.85, Table VI, Table VIa, Table VII, and § 4.86 (1999); 38 C.F.R. § 4.85, Table VI, Table VIa, Table VII, Code 6100 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Line of Duty An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(k), (m), 3.301(a). The requirement for line of duty will not be met if it appears that, at the time the injury was suffered or disease contracted, the person on whose account benefits are claimed: (1) was avoiding duty by deserting the service or by absenting himself or herself without leave materially interfering with the performance of military duties; (2) was confined under sentence of court-martial involving an unremitted dishonorable discharge; or (3) was confined under sentence of a civil court for a felony (as determined under the laws of the jurisdiction where the person was convicted by such court). 38 U.S.C.A. § 105(b); see 38 C.F.R. § 3.1(m) to the same effect. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). Willful misconduct involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(2). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n)(3). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c) (2). At a personal hearing conducted before a hearing officer at the RO in April 1997, the veteran testified that, during service in 1948, he was a passenger in a vehicle which he believed to be owned by, or properly in the possession of, a fellow serviceman and that, when the automobile accident occurred, his head hit the dashboard of the car. Hearing transcript (T.) at 2-10. The veteran was unable to recall any further details of the 1948 automobile accident. T. at 2-5. According to the veteran's testimony, he had consumed alcoholic beverages prior to the accident but was unable to remember the exact number of drinks he had. T. at 7-9. The service medical records which have been obtained and associated with the claims folder indicate that, following a March 7, 1948, automobile accident, the veteran was hospitalized for certain injuries. On admission, the veteran was determined to be "in an alcoholic stupor and unable to respond to questions or stimuli." Subsequently made diagnoses included, in pertinent part, a severe cerebral concussion (which was found to be cured approximately one week after the accident), a moderate rupture of the right tympanic membrane (which was determined to be cured almost two weeks following the accident), a laceration (four centimeters in length) in the occipital region of the scalp (which was found to be cured approximately one-and-a-half weeks after the accident), and acute alcoholism/stupor. According to a record dated almost two weeks after the accident, the "old" diagnosis of acute alcoholism was changed to a "new" diagnosis of cerebral contusion and fractured jaw. Also included in the claims folder is a Report of Investigation, dated in May 1948. According to this document, on March 7, 1948, the veteran was riding "in a drunken condition" in the right seat of a stolen automobile. The car was traveling at an excessive rate of speed in rainy weather when it crashed into the back of a parked trailer. As a result of the crash, the veteran sustained multiple injuries, including, in relevant part, a severe cerebral concussion, a moderate rupture of his right tympanic membrane, and a four-centimeter lacerated wound in the occipital region of his scalp. The report also noted acute alcoholism. The investigating officer found that the accident did not occur in the line of duty but was the result of the veteran's own misconduct. In this case, it appears that the veteran was in a drunken state at the time of the March 7, 1948, accident when certain injuries were sustained. Significantly, the relevant regulation specifically provides that the simple drinking of alcoholic beverage is not of itself willful misconduct and that intoxication must proximately and immediately cause disability or death for such disability or death to be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). In the present case, the Board has considered all of the pertinent evidence of record and concludes that, even if the veteran had consumed enough alcohol prior to the March 7, 1948, accident to become intoxicated, his actions of drinking alcoholic beverages to the point of intoxication were not the proximate and immediate cause of the accident. Rather, the Board finds that the proximate and immediate cause of the March 7, 1948, accident was the negligent or reckless manner in which the automobile was driven. Whether the veteran was a participant in other unlawful activity, such as theft of the vehicle, public drunkenness, or disorderly conduct, none of these violations of the law or otherwise inappropriate behavior can be said to be the proximate cause of his injuries. While it might be argued that his behavior with respect to events leading up to the accident was wrong, even known prohibited action, none of these acts can be said to amount to an act which, but for its occurrence, the accident would not have happened. In short, the veteran's actions, even though they may indeed have involved conscious wrongdoing, with wanton and reckless disregard of the probable consequences, nothing he did, or failed to do, was the proximate cause of his injuries. Since the veteran was not absent without authority, and because the injuries did not occur while he was confined under sentence of a civil or military court, the Board finds that injuries arising out of the March 7, 1948, accident were incurred in the line of duty. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1, 3.301. II. Service Connection Claims The threshold question that must be resolved is whether the veteran has presented evidence that his claims are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim, one that appears to be meritorious. See Murphy, 1 Vet.App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Generally, in order for a claim of service connection to be well grounded, there must be proof of present disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (requiring, for a well-grounded claim, competent evidence that a veteran currently has the claimed disability). There must also be evidence of incurrence or aggravation of a disease or injury in service. See Caluza v. Brown, 7 Vet.App. 498 (1995). The claimant must also submit medical evidence of a nexus between the in-service disease or injury and current disability. Id. Where the issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the veteran's testimony, may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, where the issue does not require medical expertise, lay testimony may be sufficient. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). A. Nervous Disorder Throughout the current appeal, the veteran has essentially asserted that service connection for a nervous disorder is warranted. He has provided no other arguments in support of this contention, other than to maintain that he first began to experience problems with his nerves in 1967 during his active military duty. According to the service medical records, at a periodic examination completed in May 1967, the veteran reported that he had previously experienced, or was experiencing at that time, nervous trouble. A notation was made on this report that the veteran had a nervous condition "possibly due to [the] auto accident [in] 1948." This examination, however, demonstrated that the veteran's psychiatric evaluation was normal. On the following day, the veteran expressed desire for counseling regarding marital problems. A notation was made in the service medical records that the examiner, who knew both the veteran and his wife, felt that they both had mild chronic anxiety. The veteran and his wife were referred to the Chaplain's Office for marital counseling. In November 1967, the veteran's wife was admitted for treatment for acute paranoid schizophrenia. Approximately one week later in December 1967, the veteran sought a refill of medication because he felt that he was "entering a depression." A diagnosis of a psychoneurosis was given. Approximately one week later, the veteran continued to be depressed and upset concerning his wife's situation. The examiner diagnosed acute adult situational reaction. An undated service medical record includes a diagnosis of acute situational reaction due to the veteran's "great many guilt feelings-particularly as his only child . . . blame[d] him for . . . [his] wife's illness." A March 1968 service medical record indicates that both the veteran and his wife were being treated at the outpatient psychiatric clinic for regular two-week appointments. At a retirement examination conducted in June 1968, the veteran reported that he had previously experienced, or was experiencing at that time, nervous trouble. He cited specific treatment between 1966 and 1968 for a nervous disorder and related his nervous trouble to his back problems. The examiner who was conducting the retirement examination cited the December 1967 psychiatric consultation which showed that the veteran had an adult situational reaction due to his wife's hospitalization for paranoid schizophrenia and that no complications or sequelae were shown. Additionally, the examiner conducting the retirement examination determined that the veteran's psychiatric evaluation was abnormal and referred the veteran to a psychiatric consultation. In July 1968, the veteran requested tranquilizers for his feelings of being nervous and upset. A notation was made that the veteran had an acute situational reaction to his wife's prolonged hospitalization for her schizophrenic reaction. A psychiatric evaluation completed on the veteran almost one week later showed no evidence of a psychosis or neurosis. His insight and judgment were found to be adequate. The examiner concluded that no psychiatric disease was shown and expressed his opinion that the veteran was psychiatrically cleared for retirement. The veteran retired from active military duty in November 1968. The post-service medical records which have been obtained and associated with the claims folder fail to reflect complaints of, treatment for, or findings or a nervous disorder. Although service medical records initially reflect an impression of mild chronic anxiety in May 1967 and a diagnosis of "a psychoneurosis" in December 1967, subsequent psychiatric evaluations provided diagnoses of acute adult situational reaction. Furthermore, while the May 1967 service medical record indicated that the veteran had a nervous condition "possibly due to [the] auto accident [in] 1948," and the report of the June 1968 retirement examination relates his nervous trouble to his back problems, the remainder of the service medical records associate a nervous condition with marital factors, including his wife's psychiatric problems. What is significant about the available record is, paradoxically, what it does not show. The claims folder contains no competent medical evidence associating any nervous disorder that the veteran may now have to his active military duty or to any event coincident therewith, such as the in-service complaints of nervousness. Despite the in-service episodes, the last psychiatric evaluation, which was completed in July 1968, found that the veteran had no psychiatric disorder. The examiner specifically stated in the examination report that no psychosis, neurosis, or psychiatric disease was shown. Moreover, the claims folder contains no post-service medical records reflecting treatment for a diagnosed nervous disability. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that any chronic nervous disorder that the veteran may now experience had its onset during service or as the product of continued symptoms since service. Consequently, the veteran's claim of service connection for a nervous disorder is not well grounded. Caluza, supra. B. Tinea Versicolor Throughout the current appeal, the veteran has asserted that service connection for tinea versicolor is warranted. He has provided no other arguments in support of this contention, other than to maintain that he first incurred this disorder in 1948 during his active military duty. According to the service medical records, in January 1947, the veteran was treated for bilateral epidermophytosis. In June 1955, he received treatment for onychomycosis with associated pain. He was referred to the surgical clinic for removal of the nail. Thereafter, in February 1962, the veteran sought treatment for a rash. He canceled a following-up appointment scheduled one week later but, on the following day, returned to report that he had papular eruptions which were not responding to medication. He was referred to the dermatology clinic. A report from the dermatology clinic, which was dated on the following day, includes the impression of extensive papula pityroid rosea. A November 1964 in-service examination demonstrated the presence of a two-centimeter subcutaneous cyst on the volar aspect of the veteran's right forearm. The examining physician recommended that the veteran undergo an excision of this cyst. A record dated in the following month noted the presence of an asymptomatic lipoma on his right forearm. Surgery was not found to be necessary at that time. At the May 1967 periodic examination, the veteran reported that he had at that time, or had previously experienced, skin diseases and a "tumor, growth, cyst, [or] cancer." Although the examiner concluded that the veteran's skin and lymphatics were normal at that time, the examiner also noted that the veteran had a rash on his neck and arms and that he had a growth on his right forearm. At the June 1968 retirement examination, the veteran reported that he was having at that time, or had previously had, skin diseases as well as a cyst. The examiner who was completing this evaluation noted in the examination report that the veteran's reference to skin disease referred to an episode of tinea versicolor in 1948 and pityriasis rosea in 1962 and that his reference to a tumor referred to a subcutaneous growth on his right forearm, which was "probably" a lipoma. The examiner cited no complications or sequelae of these prior episodes. No post-service medical records have been obtained and associated with the claims folder which reflect complaints of, treatment for, or findings of, tinea versicolor. The Board acknowledges the in-service episodes of treatment, or examination, of bilateral epidermophytosis in January 1947, onychomycosis with associated pain in June 1955, extensive papula pityroid rosea in February 1962, lipoma on his right forearm in December 1964, and a growth on his right forearm as well as a rash on his neck and arms in May 1967. What is significant about the available record is, paradoxically, what it does not show. The claims folder contains no competent medical evidence associating any tinea versicolor that the veteran may have to his active military duty or to any event coincident therewith. Importantly, the June 1968 retirement examination demonstrated no complications or sequelae of the previous in-service episodes of dermatological treatment. Moreover, the claims folder contains no post-service medical records reflecting treatment for tinea versicolor. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that any tinea versicolor that the veteran may now experience had its onset during service or as the product of continued symptoms since service. Consequently, the veteran's claim of service connection for tinea versicolor is not well grounded. Caluza, supra. C. Bilateral Leg Disability Throughout the current appeal, the veteran has asserted that service connection for a bilateral leg disability is warranted. He has provided no other arguments in support of this contention, other than to maintain that he first began to experience a bilateral leg disorder in 1950 during his active military duty. According to the service medical records, in June 1956, the veteran was hospitalized with a history of intermittent back pain for eight years as well as pain in both of his legs. The final diagnosis was lumbar nucleus pulposus herniation. Thereafter, in June 1960, the veteran sought treatment for complaints of pain in the area of his sacroiliac joint which radiated down the back of his left leg. Following a physical examination, the examiner provided the impression of possible ruptured disc. In October 1963, the veteran complained of a 15-year history of low back pain with radiation down his left leg. Following a physical examination, the examiner, who noted that the veteran had a "vast knowledge of medical terms," provided an impression of low back strain versus malingering. In June 1968, the veteran was further evaluated due to his history of lumbar pain with intermittent radiation to his right or left leg sine 1950. X-rays revealed a spondylolysis and spondylolisthesis of L4 and L5 (Grade I). At the June 1968 retirement examination, the veteran reported having pain in his lumbar area which variably radiated down both of his legs. The examiner noted that past diagnoses included spondylolisthesis, herniated nucleus pulposus, and possible malingering. However, the examiner specifically stated that the retirement evaluation had demonstrated that the veteran's lower extremities were normal. At a September 1968 Medical Board evaluation, the veteran reported that, when his low back pain radiated, the pain went down the posterior thighs to above the knee and primarily into the buttocks, but no farther. The veteran also described occasional numbness on the lateral borders of both of his feet. X-rays showed a bilateral pars interarticularis defect at the L5-S1 junction with no spondylolisthesis noted. The examiner diagnosed spondylolysis and intermittent attacks of low back pain secondary to the first diagnosis. The veteran's low back disability was also described as dissolution of a vertebra. According to the post-service medical records which have been obtained and associated with the claims folder, in March 1989, the veteran described low back pain as well as lower extremity cramps. The examiner assessed spondylolisthesis at L5-S1 as well as disc compression. In May 1989, the veteran complained of cramping in his right foot and calf as well as pain in his tailbone radiating down his right leg. The examiner assessed low back pain (and recommended ruling out degenerative joint disease) as well as calf pain (and again recommended ruling out degenerative joint disease). In June 1989, the veteran reported having cramps in his right leg and foot. Two months later, he complained of right leg pain and numbness. The examiner concluded that electromyograph (EMG) testing suggested mild radiculopathy on the right involving roots by L4, L5, and S1 (with most involvement being located at L5). September 1989 medical records provide an assessment of low back pain with demonstrable disc compression at L5 and radiculopathy by EMG. The examiner expressed his opinion that the veteran's symptoms of "leg cramps" were "prob[ably] . . . secondary to this." In February 1990, the assessment of low back pain with leg cramps (primarily in the calf area of the veteran's right lower extremity). A vascular surgical examination completed to evaluate the veteran's leg cramps showed normal blood flows. In April 1990, the veteran's history of low back pain with known L4-5 radiculopathy was noted. The examiner assessed "low back pain and shoulder pain, probable mild diffuse degenerative arthritis." In August 1990, the veteran described back pain, right leg pain, and numbness and tingling in his right leg and foot. Later that month, the veteran stated that his leg cramps occurred at night and were not associated with his low back pain. The treatment report included the examiner's comment that no clinical radiculopathy was shown at present. In October 1990, the veteran described continued lower extremity cramping which he explained was primarily nocturnal. He also complained of right foot and leg pain which was worse with driving and prolonged sitting. The examiner assessed low back pain and lower extremity cramps which he explained was an unusual combination of symptoms. Additionally, the examiner noted that EMG testing had shown mild right lumbar radiculopathy but that the veteran's overall symptoms were worsening. In August 1993, the veteran described back pain and denied numbness or weakness in his leg except after prolonged sitting. The examiner assessed mechanical back pain. In September 1993, the veteran was treated for mechanical back pain. Although he denied experiencing radiation into his legs, he did describe occasional numbness in his right leg. The examiner assessed mechanical back pain and recommended ruling out radicular symptoms. In November 1993, mechanical back pain with right leg pain was assessed. In April 1994, the veteran sought treatment for complaints of back and leg pain. The examiner recommended ruling out radicular back pain. In May 1994, the veteran complained of low back pain with continued radiating pain. The examiner assessed radicular back pain (L4). A notation dated in the following month indicates that the veteran was referred to the neurosurgery clinic for his complaints of cramps. An EMG completed in August 1994 provided findings which were consistent with a chronic right L4 radiculopathy. At a January 1995 neurosurgery evaluation, the veteran complained of a predominant symptom of cramping of his right leg followed by numbness in his extremity. He reported that he had been followed for many years with this problem. Following a physical examination, the examiner expressed his opinion that the veteran's symptoms at that time were not severe enough to warrant a decompression and fusion operation. The examiner did not diagnose a lower extremity disability. At a follow-up treatment session conducted four months later, the veteran continued to complain of cramps down the right leg. The examiner recommended that, because the veteran seemed to be doing quite well, he not have any surgical treatment for his spondylolisthesis. The veteran was instructed to return in one year. At a VA spine examination conducted in August 1998, the veteran reported that his back pain had begun to radiate into his right thigh several years ago and that neither his back pain nor his thigh pain was constant. The examiner diagnosed two low back disabilities, including degenerative arthritis of the lumbosacral spine with degenerative disc disease at L4-L5 as well as Grade I spondylolisthesis of L4 on L5, but did not diagnose a disability of either of the veteran's lower extremities. The Board acknowledges the numerous in-service and post-service episodes of treatment for complaints of lower extremity pain, cramps, numbness, and tingling. However, the file contains no competent medical evidence associating any bilateral leg disability that the veteran may have to his active military duty or to any event coincident therewith. Importantly, the relevant and competent evidence of record demonstrates that the veteran's leg complaints are associated with a diagnosed low back disability, not a diagnosed leg disability. (The veteran's service-connected lumbosacral strain with numbness and tingling of the legs is currently evaluated as 20 percent disabling.) Furthermore, a February 1990 medical report indicates that a vascular surgical examination completed to evaluate the veteran's leg cramps showed normal blood flows. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that any bilateral leg disability that the veteran may experience had its onset during service or as the product of continued symptoms since service. (Current leg symptomatology has been associated with the veteran's service-connected low back disability, but no leg disability independent of the back disability has been diagnosed.) Consequently, the veteran's claim of service connection for a bilateral leg disability is not well grounded. Caluza, supra. D. Skin Disorder Secondary to Agent Orange Exposure As the Board has previously discussed in this decision, the service medical records indicate that the veteran was treated for bilateral epidermophytosis in January 1947. Subsequently, in June 1955, he received treatment for onychomycosis with associated pain. He was referred to the surgical clinic for removal of the nail. Thereafter, in February 1962, the veteran sought treatment for a rash. He canceled a following-up appointment scheduled one week later. However, on the following day, he returned to report that he had papular eruptions which were not responding to medication. He was referred to the dermatology clinic. A report from the dermatology clinic, which was dated on the following day, includes the impression of extensive papula pityroid rosea. No lymphadenopathy was shown. A November 1964 in-service examination demonstrated the presence of a two-centimeter subcutaneous cyst on the volar aspect of the veteran's right forearm. The examining physician recommended that the veteran undergo an excision of this cyst. In the following month, the veteran was found to have an asymptomatic lipoma on his right forearm. Surgery was not found to be necessary at that time. At the May 1967 periodic examination, the veteran reported that he had at that time, or had previously experienced, skin diseases and a "tumor, growth, cyst, [or] cancer." Although the examiner concluded that the veteran's skin and lymphatics were normal at that time, the examiner also noted that the veteran had a rash on his neck and arms as well as a growth on his right forearm. At the June 1968 retirement examination, the veteran reported that he was having at that time, or had previously had, skin diseases as well as a cyst. The examiner who completed this evaluation noted in the examination report that the veteran's reference to skin disease referred to an episode of tinea versicolor in 1948 and pityriasis rosea in 1962 and that his reference to a tumor referred to a subcutaneous growth on his right forearm, which was probably a lipoma. The examiner cited no complications or sequelae of these prior episodes. No post-service medical records have been obtained and associated with the claims folder which reflect complaints of, treatment for, or findings of, a skin disorder due to Agent Orange exposure. With regard to herbicide exposure (including Agent Orange), VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3) (West Supp. 1999); 38 C.F.R. § 3.307(a)(6)(iii) (1999). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii) (1999). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Nevertheless, the United States Court of Appeals for the Federal Circuit has held that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a claimant from establishing service connection with proof of direct causation, a task "which includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board acknowledges the in-service episodes of treatment, or examination, of bilateral epidermophytosis in January 1947, onychomycosis with associated pain in June 1955, extensive papula pityroid rosea in February 1962, lipoma on his right forearm in December 1964, and a growth on his right forearm as well as a rash on his neck and arms in May 1967. However, the claims folder contains no competent medical evidence associating any skin disorder that the veteran may have to in-service exposure to Agent Orange. Importantly, the May 1967 periodic examination specifically demonstrated that the veteran's skin and lymphatics were normal at that time. The June 1968 retirement examination did not refute this finding. Moreover, the claims folder contains absolutely no post-service medical records reflecting treatment for such a skin disorder. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that any skin disorder that the veteran may experience is related to in-service exposure to Agent Orange. Additionally, with respect to application of 38 C.F.R. §§ 3.307, 3.309, no competent evidence has been presented to show that the veteran has one of the listed skin diseases for which a presumption applies. Consequently, the veteran's claim of service connection for a skin disorder due to Agent Orange exposure is not well grounded. Caluza, supra. E. Sinus Disorder Throughout the current appeal, the veteran has essentially asserted that service connection for a sinus disorder is warranted. He has provided no other arguments in support of this contention, other than to maintain that he first began to experience sinus problems in 1968 during his active military duty. According to the service medical records, the January 1949 separation examination demonstrated that the veteran had a posteriorly deviated septum with 10 percent obstruction. The remainder of the service medical records are negative for complaints of, treatment for, or findings of, a sinus disorder. At the June 1968 retirement examination, the veteran specifically denied ever having experienced ear, nose, or throat trouble. The Board acknowledges the in-service finding (at the January 1949 separation examination) of a posteriorly deviated septum with 10 percent obstruction. Nevertheless, the claims folder contains no competent medical evidence associating any sinus disorder that the veteran may now have to his active military duty or to any event coincident therewith. Importantly, neither the veteran's service records nor the post-service treatment records shows that the veteran has a sinus disorder. As discussed above, competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that any sinus disorder that the veteran may now experience had its onset during service or as the product of continued symptoms since service. Consequently, the veteran's claim of service connection for a sinus disorder is not well grounded. Caluza, supra. F. Arthritis Of Multiple Joints According to the service medical records, in August 1957, the veteran sought treatment for complaints of slightly progressive neck pain. Arthritis is not shown as a diagnosed entity during service. In fact, at the June 1968 retirement examination, the veteran specifically denied ever having experienced swollen or painful joints. Furthermore, this evaluation failed to provide any evidence of arthritis of any joint. An April 1990 examination showed minimal crepitus in the veteran's right shoulder joint on full abduction (which involved either the joint or the tendon). The examiner assessed "low back pain and shoulder pain, probable mild diffuse degenerative arthritis." No additional post-service medical records have been obtained and associated with the claims folder which reflect complaints of, treatment for, or findings of, arthritis. The Board acknowledges the in-service complaint in August 1957 of slightly progressive neck pain. However, no competent medical evidence associating any joint arthritis that the veteran may have to his active military duty or to any event coincident therewith has been presented. Although the veteran's shoulder pain as shown in 1990 was suspected to represent "probable mild diffuse degenerative arthritis," no competent evidence has been received which associates any such disability with the veteran's active military duty or any event coincident therewith. As with previously discussed claims of service connection, absent the presentation of competent evidence linking currently shown arthritis to military service, his claim may not be considered well grounded. Caluza, supra. Additionally, since no evidence has been presented to show that arthritis was diagnosed within a year of the veteran's separation from service, the veteran is not aided by the presumption of 38 C.F.R. § 3.307 (1999). III. Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1999). Because the veteran has appealed from an initial award, consideration will be given to whether a compensable rating was warranted for any period of time during the pendency of his claim. Fenderson v. West, 12 Vet.App. 119 (1999). Before specifically addressing the question of the propriety of the noncompensable rating assigned to the service-connected bilateral hearing loss, the Board acknowledges that the schedular criteria by which audiological disabilities are rated changed during the pendency of the veteran's appeal. See 64 Fed. Reg. 25209 (May 11, 1999) (effective June 10, 1999) codified at 38 C.F.R. §§ 4.85, 4.86 (1999). Therefore, adjudication of a claim regarding the initial noncompensable evaluation assigned for the service-connected bilateral hearing loss must also include consideration of both the old and the new criteria. Karnas v. Derwinski, 1 Vet.App. 308 (1991). This rule of adjudication requires that the criteria most favorable to the veteran's claim be used. Id. According to the criteria in effect prior to June 10, 1999, evaluations of defective hearing ranged from noncompensable to 100 percent based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 (1998) established eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in § 4.85 were used to calculate the rating to be assigned. In instances where, because of language difficulties, the Chief of the Audiology Clinic certifies that the use of both puretone averages and speech discrimination scores was inappropriate, Table VIa was to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c) (1998). While the new schedular requirements have essentially not changed this mechanical application of the rating criteria for defective hearing, the new instructions have added guidance for cases which involve exceptional patterns of hearing impairment. In particular, the new schedular criteria stipulates that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (1999). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (1999). Because the Board must consider whether the veteran would qualify for a compensable rating under either set of criteria (the new and the old), Karnas, supra, consideration under the old criteria will be undertaken first. In the present case, the veteran's bilateral hearing loss is currently evaluated as noncompensably disabling. The results of an August 1998 VA audiological examination reveal that the veteran has normal to moderate sensorineural hearing loss in both of his ears. Specifically, the audiometric testing conducted at this examination revealed puretone thresholds of 20, 30, 30, and 40 decibels in his right ear, and 30, 50, 50, and 60 decibels in his left ear at 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. The average of these thresholds was 30 for the veteran's right ear and 48 for his left ear. Additionally, the veteran had speech discrimination scores of 98 percent correct in his right ear and 94 percent correct in his left ear. Applying 38 C.F.R. § 4.85, Table VI (1998) to these results, the veteran has a numeric designation of I for his right ear and I for his left ear. Application of 38 C.F.R. § 4.85, Table VII (1998) does not result in findings that warrant a compensable rating for the veteran's service-connected bilateral hearing loss. (The claims folder contains no additional post-service medical records which reflect treatment for, or examination of, hearing loss.) Because a compensable disability evaluation for the veteran's service-connected bilateral hearing loss is not warranted under the rating criteria in effect prior to June 10, 1999, the Board must also consider the application of the new rating criteria. In this regard, the Board reiterates that, while the new requirements have essentially not changed the mechanical application of the rating criteria for defective hearing, the new instructions have added guidance for cases which involve exceptional patterns of hearing impairment. See 38 C.F.R. § 4.85, Table VI, Table VIa, Table VII and § 4.86 (1999). Significantly, however, the August 1998 VA audiological examination does not provide findings that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more or that the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Consequently, a determination by the rating specialist of the Roman numeral designation for hearing impairment from either Table VI or Table VIa (whichever results in the higher numeral) is not appropriate. See 38 C.F.R. § 4.86 (1999). The Board concludes, therefore, that the preponderance of the evidence is against the veteran's claim of entitlement to a compensable disability evaluation for his service-connected bilateral hearing loss. In addition, the Board concludes, for the reasons set out above, that a compensable rating for the veteran's bilateral hearing loss is not warranted at any time during the current appeal. See Fenderson, supra. ORDER Injuries sustained as a result of a March 7, 1948, automobile accident were incurred in the line of duty; to this extent, the appeal is granted. Service connection for a nervous disorder, tinea versicolor, a bilateral leg disability, a skin disorder secondary to Agent Orange exposure, a sinus disorder, or arthritis of multiple joints is denied. A compensable disability rating for bilateral hearing loss is denied. (CONTINUED ON NEXT PAGE) REMAND Because the Board has found that injuries that the veteran sustained as a result of the March 1948 automobile accident were incurred in the line of duty, the issue of entitlement to service connection for residuals of these injuries, if any, must be adjudicated. In this regard, the Board notes that, as discussed earlier in this decision, the service medical records which have been obtained and associated with the claims folder reflect hospitalization from March to April 1948 for injuries sustained in the March 7, 1948 automobile accident. According to these medical reports, diagnoses included, in pertinent part, a severe cerebral concussion (which was found to be cured approximately one week after the accident), a moderate rupture of the right tympanic membrane (which was determined to be cured almost two weeks following the accident), and a lacerated wound (four centimeters in length) in the occipital region of the scalp (which was found to be cured approximately one-and-a-half weeks after the accident). Additionally, the Board notes that x-rays taken just two days after the accident as well as in the following month failed to reveal any evidence of a skull fracture or other pathology. The remainder of the service medical records are negative for complaints of, treatment for, or findings of residuals of injuries to the veteran's brain, skull, or eardrum. An in-service examination conducted in January 1949 indicated that the veteran had a normal recovery for a fracture of his lower jaw in 1948. The veteran denied all other diseases, injuries, and operations. A subsequent in-service examination completed in October 1952 showed the presence of a scar near the veteran's right ear. In the report of this evaluation, the physician noted that the veteran had sustained multiple injuries in a 1948 automobile accident and that all injuries had healed without complications or sequelae. A December 1952 examination also noted the presence of a small scar on the veteran's right eardrum which was not considered disabling. A report of a November 1958 examination indicates that the veteran had a ruptured "left" tympanic membrane in 1948 with no complications or sequelae. Other than gonorrhea, lower back problems, and fractured ribs, the veteran denied "all else." At an in-service examination completed in November 1964, the examiner noted that, as a result of the 1948 automobile accident, the veteran sustained (in pertinent part) a skull contusion and ruptured right eardrum; that he was unconscious for approximately one week; and that he had no complications or sequelae. No other significant medical or surgical history was found. The examination revealed that the veteran's head and eardrums were normal. Subsequently, at a May 1967 examination, the veteran reported that he had a history of a head injury but denied ever having experienced loss of memory or amnesia. The report of this evaluation noted that the veteran's medical history was significant (in relevant part) for a ruptured right eardrum in 1948 after an automobile accident, for a skull contusion following an automobile accident, and for a state of unconsciousness for one week in 1948 after the car accident. The veteran denied other significant medical or surgical history. At the retirement examination conducted in June 1968, the veteran reported that he had a history of a head injury and that he had experienced memory loss or amnesia, as well as periods of unconsciousness. According to the report of this evaluation, the veteran's amnesia referred to a brain concussion and an unconsciousness state for one week following the 1948 accident. No complications or sequelae were found. A skull contusion due to the 1948 automobile accident as well as an unconscious and semi-conscious state for one week following the accident were also noted. No sequelae were shown. Also, a ruptured right eardrum in "1958" was noted, but an evaluation was negative in that no complications or sequelae were found. Additionally, the post-service medical records show that, in September 1989, the veteran was considered status-post a cerebrovascular accident (CVA) in 1982 (which caused speech and memory impediment or weakness). In February 1990, the veteran was found to have no recurrent neurological events since the 1982 CVA, which had totally resolved. In October 1990, the veteran's 1982 CVA was described as nonrecurrent. At a January 1995 neurological evaluation, the examiner noted that the veteran had a history of a stroke in 1982 which was manifested by aphasia and memory difficulties that had completely resolved since then. Subsequently, at an August 1998 VA audiological examination, the veteran reported that he had previously sustained a ruptured eardrum ("probably the right ear") which resulted in a 20 decibel loss "at that time." He denied any middle ear pathology since then. The evidence described above raises a question as to what, if any, residual disability the veteran experiences as a result of the 1948 automobile accident. The salient point to be made in this regard is that the RO must be given opportunity to adjudicate the service connection question in the first instance. Therefore, now that the line of duty determination has been resolved in the veteran's favor, the RO should take action as to the claim of service connection for residual disability. Turning to the veteran's service-connected low back disability, the Board finds that further evidentiary development is required. A review of the claims folder indicates that, between March 1989 and October 1990 and from August 1993 to January 1995, the veteran received periodic treatment for complaints of low back pain. The claims folder contains no more recent records of low back treatment, except for the report of the VA spine examination which was conducted in August 1998. According to the report of this VA spine evaluation, the veteran stated that he seeks treatment for his low back "every once in a while" and that he was previously given an elastic back support which he does not wear much (and was not wearing at the time of the examination). The veteran also explained that his back pain was not constant and was less than his right thigh pain. Physical examination demonstrated back pain at the site of L5, tenderness to deep pressure over the right side of the sacroiliac joint, no muscle spasm, absent ankle jerk on the right, ankle jerk on the left of 1+, no areas of hypalgesia, weaker right big toe extension than the left, and straight leg raising to 90 degrees which was negative bilaterally. The veteran had the following ranges of motion: flexion to over 90 degrees (with mild back discomfort), extension to 20 degrees (with some moderate pain), right and left lateral bending to 20 degrees (with mild discomfort), and rotation from one to 35 degrees to the right and left (with some discomfort). Additionally, the examiner noted that the veteran, who did not "complain of real pain on any of these maneuvers," could "nearly" touch the floor. X-rays taken of the veteran's lumbosacral spine showed degenerative disc disease at L4-5, degenerative changes of a few lower facet joints bilaterally, grade I spondylolisthesis of L4 on L5, and a high possibility of spondylolysis of L4. As already noted, the veteran has received only periodic outpatient treatment for his service-connected low back disability since 1989 and, in fact, has not received treatment for this service-connected disorder since January 1995. Furthermore, he has recently admitted that his low back pain is not constant and does not require medication. Moreover, at the most recent VA examination, which was conducted in August 1998, the examiner noted that the veteran, who did not "complain of real pain on any of these maneuvers," could "nearly" touch the floor. Importantly, however, the evidence of record includes the veteran's repeated complaints of low back pain. Additionally, the August 1998 VA examination demonstrated tenderness to deep pressure over the right side of the sacroiliac joint, some limitation of motion, as well as some pain and discomfort on the ranges of motion. With respect to problems such as pain, the United States Court of Appeals for Veterans Claims (Court) has stressed that, in evaluating disabilities of the joints, VA has a duty to determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet.App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). The Court has indicated that these determinations should be made by an examiner and should be portrayed by the examiner in terms of the additional loss in range of motion due to these factors (i.e., in addition to any actual loss in range of motion noted upon clinical evaluation). In order to obtain evidence sufficient to rate the veteran's service-connected lumbosacral strain with numbness and tingling of the legs in this manner, further development is required in the form of another VA examination. For these reasons, the veteran's case is REMANDED to the RO for the following development: 1. The veteran should be given an opportunity to further supplement the record on appeal. Specifically, he should be asked about records of any treatment for his service-connected lumbosacral strain with numbness and tingling of the legs in recent years. The RO should assist the veteran in accordance with 38 C.F.R. § 3.159 (1999). 2. The veteran should also be afforded a VA orthopedic examination to determine the extent of his service-connected lumbosacral strain with numbness and tingling of the legs. The claims folder, and a copy of this remand, should be made available to the examiner. The examiner should record pertinent medical complaints, symptoms, and clinical findings. The examiner must include the active and passive ranges of motion of the veteran's lumbar spine (including a description of the normal ranges of motion of the lumbar spine). All functional losses found to be due to the service-connected low back disability (and any associated problems), including any pain, weakness, or additional difficulties during flare-ups, should be equated to range of motion lost beyond that demonstrated clinically. 3. After the development requested above has been completed, the RO should adjudicate the issues of entitlement to service connection for residuals injuries sustained in the March 1948 accident and should re-adjudicate the issue of entitlement to a disability evaluation greater than 20 percent for lumbosacral strain with numbness and tingling of the legs. Any development of the service connection claim deemed necessary should be undertaken. If any benefit sought remains denied, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Booth v. Brown, 8 Vet.App. 109 (1995); Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992); Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of these remanded issues. These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals