BVA9505572 DOCKET NO. 92-05 844 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for residuals of a right ankle sprain. 3. Entitlement to an increased rating for allergic rhinitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from June 1968 to August 1990. This case is again before the Board of Veterans' Appeals (the Board) on appeal from a September 10, 1991, rating decision by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board on June 14, 1993, for additional development of the evidence and, if necessary, for adjudication of the veteran's potential entitlement to a 10 percent rating under 38 C.F.R. § 3.324 (1993). Since a 10 percent schedular rating for allergic rhinitis was thereafter granted by a rating board in August 1994, an award under 38 C.F.R. § 3.324 is precluded and the latter need not be addressed further. During the pendency of this appeal, the veteran has also raised matters involving service connection for kidney stones and varicose veins. The issue of service connection for pes planus has also been adjudicated by the RO. However, none of these has been fully developed for Board review at this time. Thus, they are referred back to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a bilateral hearing deficit which was documented during active military service. He claims that at times he has difficulty conversing with and understanding people he talks to. With respect to his right ankle, the veteran contends that in 1987 he slipped down a ship's ladder and landed on his ankle. He states that he was thereafter seen for ankle problems on various occasions during service. He claims that because of the accident the ankle became weak and has continued to cause problems, including pain in the ankle and a tendency to trip at times. With respect to allergic rhinitis, the veteran states that he has sinus problems which are at times so bad that they interfere with his job. He states that he experiences embarrassment due to sneezing. He maintains that a higher rating should be assigned since the disorder interferes with his employment. 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's claim of service connection for bilateral defective hearing is denied by operation of law. It is the further decision of the Board that a preponderance of the evidence supports the granting of service connection for residuals of a right ankle injury. It is the further decision of the Board that a preponderance of the evidence is against the claim for a rating higher than 10 percent for allergic rhinitis with recurrent sinusitis. FINDINGS OF FACT 1. The evidence required for proper adjudication of the issues on appeal has been obtained. 2. The veteran currently is not shown to have a hearing disability for VA purposes. 3. Postservice medical evidence demonstrates that the veteran has symptomatic residuals of a right ankle injury received during active military service. 4. Allergic rhinitis with recurrent sinusitis is manifested by rhinorrhea, sneezing, maxillary tenderness, moderate inflammation of the mucosa, and questionable mucoperiosteal thickening on X-ray examination. 5. Moderate crusting and ozena, atrophic changes, due to allergic rhinitis have not been demonstrated; severe disability due to sinusitis is not shown. CONCLUSIONS OF LAW 1. The veteran does not have a hearing disability for which service connection can be granted. 38 U.S.C.A. §§ 1110, 1131, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1994). 2. Residuals of an injury to the right ankle were incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.303(b) (1994). 3. The criteria for a rating in excess of 10 percent for allergic rhinitis with recurrent sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.97, including Codes 6501, 6510 through 6514 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral Defective Hearing Background. The service medical records show that on audiometric testing performed in October 1973, the pure tone decibel thresholds in the right ear were reported as 25, 25, 35, 35 and 35 decibels at 500, 1,000, 2,000, 3,000 and 4,000 hertz, respectively. In the left ear, the thresholds were 20, 20, 30, 35 and 45 decibels, respectively, at the same frequencies. On testing performed in June 1985, pure tone thresholds of 40 decibels were reported at 3,000 hertz in each ear; 40-decibel thresholds at the same frequency were again reported in May 1986. All other audiometric test results during service, including those reported on a May 1990 examination for transfer to the Fleet Reserve, showed thresholds of 35 decibels or lower at each of the five relevant frequencies. The veteran's original claim for VA compensation was received in September 1990. Audiometric testing was performed at a VA facility in June 1991 in connection with this claim. In the right ear, the pure tone air conduction thresholds were 10, 10, 20, 25 and 15 decibels at 500, 1,000, 2,000, 3,000 and 4,000 decibels, respectively. In the left ear, the thresholds were 15, 15, 15, 25 and 25 decibels, respectively, at the same frequencies. The speech recognition scores were 94 percent in the right ear and 96 percent in the left ear. These results were interpreted by the audiologist as representing normal hearing through 6,000 hertz in each ear. Analysis. The law provides that service connection may be granted for a disability which is incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). A VA regulation is applicable to claims for service connection for defective hearing: For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1994). The Board finds that service connection for bilateral defective hearing is not warranted in accordance with these standards. Although service medical records indicate that on three occasions (in October 1973, June 1985, and May 1986) a slight hearing deficit was present, later testing (in September 1986, June 1987, and May 1990, and at a VA facility in June 1991) clearly do not show impaired hearing for VA purposes. No audiometric test results obtained since May 1986 suggest that the veteran has a disability as defined in the regulation. In the absence of evidence of a current hearing disability satisfying the requirements of 38 C.F.R. § 3.385, the claim must be denied by operation of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). II. Residuals of Right Ankle Injury Background. Service medical records show that in February 1987 the veteran was seen for complaints of right foot pain after having slipped on a ladder aboard a ship three weeks earlier. It was reported that there had been no pain at the time of the injury but that the veteran was experiencing early morning tenderness which decreased as the day went on. There was a mild limp on the right. There was no erythema or ecchymosis. There was tenderness to palpation on the dorsal aspect. In May 1987, the veteran was referred for an orthopedic evaluation for persistent right ankle pain. On this occasion it was recorded that the veteran had experienced immediate pain in the right ankle after the fall and had been unable to bear weight for several days. He had been troubled by a feeling of instability with frequent eversion. This had been resolving over the past two months and was no longer a problem. Examination showed no swelling or tenderness of the ankle. The ankle was reported to be stable. An X-ray was reported as normal. At an annual physical examination in June 1987, it was noted on a medical history report that there had been right ankle pain for five months and that the veteran was to receive an orthopedic evaluation. No complaints or abnormal findings involving the right ankle were reported on a Fleet Reserve examination in May 1990. A VA orthopedic examination was performed in May 1991 in connection with the veteran's original service connection claim, which was received in September 1990. There was a complaint of discomfort in the lateral aspect of the foot in inversion on standing on the inverted foot. On examination, dorsiflexion and plantar flexion of the right ankle were 10 and 60 degrees, respectively. Inversion and eversion were performed normally. No instability was demonstrated. The diagnosis was "sprain of right ankle, symptomatic, normal examination by X-ray." Analysis. The Board finds that the claim for service connection for residuals of a right ankle injury is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Murphy, ibid. The Board further finds that the statutory duty to assist in the development of the evidence to support a well-grounded claim has been satisfied. The service medical records confirm both that the veteran sustained a sprain of the right ankle in service and that the injury was followed by residual pain which required medical attention. The service medical records alone are insufficient to show that a chronic right ankle disability related to the injury was present during service. 38 C.F.R. § 3.303(b) (1993). Service and postservice medical records likewise do not specifically document continuity of symptomatology. § 3.303(b) (1993). However, the lack of a finding of chronicity in service or of a documented continuity of symptomatology is not by itself fatal to the claim since the Court has held that service connection may be granted if the claimant establishes a "nexus" between his current condition and his military service. Cosman v. Principi, 3 Vet.App. 503 (1992); Douglas v. Derwinski, 2 Vet.App. 103 (1992), Godfrey v. Derwinski, 2 Vet.App. 352 (1992). In this case, the postservice VA examination report sets forth a medical determination that the veteran's current foot impairments constitute symptomatic residuals of the injury in service. While the service records contain a minimal inconsistency with regard to the extent of pain felt immediately after the injury, the information related by the veteran to the VA examiner is substantially confirmed by service records. The Board finds no basis in the record for rejecting the uncontradicted medical opinion of the VA examiner. The Board does not have the authority to exercise its own independent medical judgment in reviewing medical issues arising in appealed cases. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board finds that the postservice evidence establishes a nexus between current foot disability and military service and that a preponderance of the evidence therefore supports the granting of service connection for residuals of a right ankle injury. 38 U.S.C.A. § 5107(b) (West 1991). III. Allergic Rhinitis with Recurrent Sinusitis Background. The veteran's service medical records contain reference to symptoms of allergic rhinitis for which the veteran received medical treatment. In June 1991, after separation, a VA ear, nose and throat examination was performed. The veteran reported a 10-year history of sneezing and rhinorrhea without sinus pain. He claimed that he had symptoms almost every day. On examination, the mucosa were swollen. There was no pus. An X-ray of the sinus was negative. The clinical assessment was allergic rhinitis. Based on these findings, service connection for allergic rhinitis was granted in September 1991; a noncompensable rating was assigned under Diagnostic Code 6501 of the VA rating schedule (38 C.F.R. Part 4). 38 C.F.R. § 4.97, Code 6501 (1993). Pursuant to the June 14, 1993, Board remand, the veteran underwent a further examination of his nose and sinuses in October 1993. He noted a history of seasonal allergies. The symptoms included watery itchy eyes, clear rhinorrhea with occasional post nasal drip, and occasional frontal headaches. There was no purulent discharge. Examination showed mild maxillary tenderness, the right greater than the left. There was a nasoseptal deviation to the left with a very small airway. An inferior septal spur on the right was present. There was moderate inflammation of the mucosa. No functional obstruction was noted. X-rays of the sinuses showed a questionable mucoperiosteal thickening in the left maxillary sinus. The diagnosis was allergic rhinitis complicated by occasional bouts of recurrent acute sinusitis. Analysis. The Board finds that the claim for an increased rating for allergic rhinitis with recurrent sinusitis is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) and that the statutory duty to assist has been satisfied. The current 10 percent rating was assigned under Diagnostic Code 6501 of the VA rating schedule, which authorizes a 10 percent rating for chronic atrophic rhinitis "with moderate atrophy of intranasal structure, and moderate secretion." To warrant the next higher rating of 30 percent under that code, "moderate crusting and ozena, atrophic changes" must be shown. 38 C.F.R. § 4.97, Code 6501 (1993). The two postservice examinations confirmed that the veteran experienced recurrent episodes of rhinorrhea and sneezing; post nasal drip and occasional frontal headaches were noted on the most recent examination in October 1993. Mucosal swelling was also present, as was moderate inflammation. There was no evidence of crusting, ozena or atrophic changes. The Board finds that the symptomatology most nearly approximates the criteria stated in Code 6501 for a 10 percent rating. The veteran is also potentially entitled to an increased rating under Diagnostic Codes 6510 through 6514, which pertain to various forms of sinusitis (pansinusitis, ethmoid sinusitis, frontal sinusitis, maxillary sinusitis and sphenoid sinusitis, respectively). Under each of these codes, a 10 percent rating is provided for moderate sinusitis with discharge or crusting or scabbing, infrequent headaches. A 30 percent is provided for severe sinusitis, with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. 38 C.F.R. § 4.97, Codes 6510 through 6514 (1993). In this case, none of the specific items listed as a component of severe sinusitis disability is documented in the record. The criteria for a rating higher than 10 percent under the sinusitis codes are therefore not met. The Board also finds that the veteran has not submitted any evidence which would warrant consideration of the claim under the provisions of 38 C.F.R. § 3.321(b) (1993) based on unique or unusual circumstances which would render impractical the application of the regular schedular criteria. The Board finds that a preponderance of the evidence is against the assignment of a rating higher than 10 percent for allergic rhinitis with sinusitis. Consequently, the benefit of the doubt rule does not apply and the claim for an increase must be denied. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Service connection for residuals of a right ankle injury is granted. Service connection for bilateral defective hearing is denied. An increased rating for allergic rhinitis with sinusitis is denied. STEPHEN L. WILKINS 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), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.