Citation Nr: 0005416
Decision Date: 02/29/00	Archive Date: 09/08/00

DOCKET NO. 98-11 120               DATE FEB 29, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Reno, Nevada

THE ISSUES

1. Entitlement to service connection for left eye droop.

2. Entitlement to service connection for headaches.

3. Entitlement to an evaluation in excess of 10 percent for shell
fragment wound scars under the right eye and left ear.

4. Entitlement to an evaluation in excess of 10 percent for
deflected nasal septum.

5. Entitlement to an evaluation in excess of 10 percent for right
maxillary antrum impairment with tinnitus and post-operative
sinusotomy.

6. Entitlement to an effective date earlier than May 28, 1997 for
the grant of service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

Jeffrey J. Schueler, Counsel

INTRODUCTION

The appellant had active service from December 1942 to December
1945. His service records indicate he served in Europe with the
101st Airborne Division, parachuted into Normandy on June 6, 1944,
and earned a Purple Heart Medal.

This matter comes to the Board of Veterans' Appeals (Board) from.
a February 1998 rating decision of the Department of Veterans
Affairs (VA) Reno Regional Office (RO).*  In that decision, the RO
declined the appellant's application to reopen a previously denied
claim of service connection for bilateral hearing loss, and denied
service connection for left eye droop and headaches, the claim
seeking a compensable evaluation for a deflected nasal septum, and
claims seeking ratings in excess of 10 percent for shell fragment
wound scars under the rights eye and left ear and for right
maxillary antrum impairment with tinnitus and post-operative
sinusotomy. The appellant disagreed and this appeal ensued.

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The Reno RO provided the appellant with notice of this decision.
However, the rating decision itself listed the Portland, Oregon RO
as the agency of original jurisdiction. The Reno RO received the
appellant's claims, informed him of the rating decision, and
developed this appeal for appellate review. Any references to the
"RO" in this decision should be interpreted as referring to the
either the Reno or Portland ROs, unless otherwise specifically
indicated.

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In a February 1999 hearing officer's decision, the RO granted the
application to reopen the previously denied claim of service
connection for bilateral hearing loss. The RO then granted service
connection, assigning it a 10 percent evaluation effective May 28,
1997. That decision constituted a full award of the benefit sought
on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir.
1997); Holland v. Gober, 124 F.3d 226 (Fed. Cir. 1997) (a notice of
disagreement applies only to the element of the claim being
decided, such as service-connectedness). Thus, the Board no longer
has jurisdiction over the claim of service connection for bilateral
hearing loss. The appellant, though, thereafter expressed
disagreement with the effective date assigned and perfected an
appeal as to the issue as stated on the title page above.

Also in the February 1999 hearing officer's decision, the RO
increased to 10 percent the rating assigned the deflected nasal
septum disability. The appellant presumably seeks the maximum
benefit allowed by law and regulation. VA is required to consider
and discuss disability severity with reference to at least the
next-higher disability rating available. Therefore, the claim
remains in controversy where less than the maximum available
benefit is awarded, unless the appellant clearly expresses an
intent to limit the appeal. AB v. Brown, 6 Vet. App. 35, 38-39
(1993). In this case, the disability is evaluated under the
criteria of Diagnostic Code 6502 for deviation of the nasal septum,
which provides for no more than a 10 percent evaluation. However,
the disability may also be rated under the criteria of other
diagnostic codes that provide for higher evaluations listed at 38
C.F.R. 4.97. Moreover, the record does not, indicate that the
appellant expressed any intent to limit his appeal to the currently
assigned 10 percent evaluation. Thus, the claim remains in
controversy as listed on the title page of this decision.

FINDINGS OF FACT

1. No competent evidence has been submitted showing current
impairment associated with a claimed left eye droop.

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2. No competent evidence has been submitted showing current
headaches.

3. With respect to the increased-rating claims and earlier-
effective-date claim, all available relevant evidence necessary for
an equitable disposition of the appeal has been obtained.

4. The shell fragment wound scars under the right eye and left ear
are manifested by well-healed, minimally disfiguring, superficial
scars without ulceration, adherence, tissue loss, inflammation, or
limitation of function.

5. The deflected nasal septum is manifested by deviation to the
left producing an obstruction of the nasal cavity.

6. The appellant consulted with a physician seven or eight times
per year for recurrent, non-incapacitating sinus infections.

7. The RO was not in receipt or possession of any evidence that can
reasonably be construed as a formal or informal claim of
entitlement to VA benefits based on bilateral hearing loss prior to
May 28, 1997.

CONCLUSIONS OF LAW

1. The claim of service connection for left eye droop is not well
grounded. 38 U.S.C.A. 5107(a) (West 1991).

2. The claim of service connection for headaches is not well
grounded. 38 U.S.C.A. 5107(a) (West 1991).

3. The criteria for an evaluation in excess of 10 percent for shell
fragment wound scars under the right eye and left ear are not met.
38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 4.1, 4.2, 4.118,
Diagnostic Codes 7800, 7804 (1999).

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4. The criteria for an evaluation in excess of 10 percent for
deflected nasal septum are not met. 38 U.S.C.A. 1155, 5107 (West
1991); 38 C.F.R. 4.1, 4.2, 4.97, Diagnostic Code 6502 (1999).

5. The criteria for a 30 percent evaluation for right maxillary
antrum impairment with tinnitus and post-operative sinusotomy are
met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 4.1, 4.2, 4.97,
Diagnostic Code 6513 (1999).

6. The criteria for an effective date earlier than May 28, 1997 for
the grant of service connection for bilateral hearing loss are not
met. 38 U.S.C.A. 5101, 5107, 5110(a) (West 1991 & Supp. 1999); 38
C.F.R. 3.400 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection Claims

Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by service. 38 U.S.C.A.
1110; 38 C.F.R. 3.303. The threshold question for resolution is
whether the appellant has presented evidence of a well-grounded
claim. See 38 U.S.C.A. 5107(a); Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). A well-grounded claim is a plausible claim that is
meritorious on its own or capable of substantiation. See Murphy, 1
Vet. App. at 81. An allegation of a disorder that is service
connected is not sufficient; the appellant must submit evidence in
support of a claim that would "justify a belief by a fair and
impartial individual that the claim is plausible." 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 of necessity will depend upon the issue presented
by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).

In order for a claim to be well grounded, there must be competent
medical evidence of a current disability, lay or medical evidence
of incurrence or aggravation of a disease or injury in service, and
competent medical evidence of a nexus, or link, between the in-
service injury or disease and the current disability. Epps v.
Gober,

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126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App.
498, 506 (1995). See Grottveit, 5 Vet. App. at 93 (in questions of
medical diagnosis or causation, well-grounded claim requires
competent medical evidence of a plausible claim; lay assertions of
medical causation cannot constitute competent medical evidence). If
no cognizable evidence is submitted to support a claim, the claim
cannot be well grounded.

A. Claimed Left Eye Droop

The initial element of a well-grounded claim requires competent
medical evidence of a current disability. Epps, 126 F.3d at 1468.
In his May 1997 claim for service connection, the appellant stated
that his left eye drooped resulting ill the eye being half closed.
He further indicated that he received treatment at a private
medical facility. At a September 1998 hearing, the hearing officer
noted that the left eye "droop[ed] a little bit." The appellant
testified, though, that he did not "ever notice any problems with
it." (Transcript at 14.)

The evidence of record relevant to the current status of the left
eye includes private ophthalmologist treatment records from October
1993 to June 1997 indicating that the appellant had diagnoses of
bilateral dry eye syndrome, bilateral suspect glaucoma, left eye
ocular hypertension, bilateral pseudophakiaderma, bilateral
dermatochalasis of the upper eyelids with obstruction of the upper
fields of visual acuity, and right eye posterior vitreous
detachment. It was also noted that he had a history of stroke in
1992. A private neurologist, in October 1998, indicated that the
appellant had no evidence of visual disturbance. A private
ophthalmologist, in October 1998, reported bilateral stable
pseudophakia, age-related macular degeneration, bilateral dry eyes,
and glaucoma controlled by medication.

The hearing officer's description that the left eye drooped at the
September 1998 hearing indicates that appellant possesses that
physical characteristic. However, the appellant's testimony that he
did not "ever notice any problems with it" suggests that this
physical characteristic is not a current disorder. None of the
competent medical evidence summarized above mentions any impairment
resulting from the claimed drooping left eye, or even that the left
eye drooped. The record includes

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several ophthalmologic diagnoses and a history of stroke in 1992.
However, that evidence, including the appellant's own statement at
the September 1998 hearing, is entirely silent as to any impairment
resulting from this characteristic.

As the evidence does not show that the appellant currently has any
impairment associated with a drooping left eye, he has not met his
burden of submitting competent medical evidence of a current
disorder. In the absence of proof of a present disability, there
can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 226
(1992). The failure to demonstrate a current disability constitutes
failure to present a plausible or well-grounded claim. Chelte v.
Brown, 10 Vet. App. 268, 271 (1997); Rabideau v. Derwinski, 2 Vet.
App. 141, 143-44 (1992). Since the claim is not well grounded, VA
cannot assist the appellant in further development of the claim. 38
U.S.C.A. 5107(a); Morton v. West, 12 Vet. App. 477 (1999).

B. Headaches

The initial element of a well-grounded claim requires competent
medical evidence of a current disability. Epps, 126 F.3d at 1468.
The appellant asserted in his May 1997 claim that he continued to
have headaches which he described as a residual of an in-service
injury. He amplified his contentions at a September 1998 hearing,
where he testified that he had headaches for about a year after his
in-service injury, which then resolved on their own. He stated that
the headaches returned when he started painting, apparently in the
1960s. He indicated that the headaches were debilitating, made his
eyes darken, and required treatment with morphine.

As a lay person ostensibly untrained in medicine, the appellant
cannot by his testimony and statements alone provide competent
medical evidence rendering the claim well grounded. He can
certainly provide an eyewitness account of his own symptoms. Layno
v. Brown, 5 Vet. App. 465, 469 (1994). However, his capability to
offer such evidence is different from the capability of a witness
to offer evidence that requires medical knowledge. For the most
part, a witness qualified as an expert by knowledge, skill,
experience, training, or education must provide medical testimony.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

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The appellant's contentions outlined above, then, cannot serve as
competent medical evidence of current headaches. The record
includes a private neurologist's October 1998 examination report on
behalf of VA, indicating that the appellant had some headaches at
the time of his injury in service, but that he denied headaches
presently. Thus, the only evidence or record prepared by a medical
professional does not indicate a current headache disorder. The
appellant testified in September 1998 that he received treatment
from a VA medical facility for his headaches. Clinical records from
1995 through 1997 associated with that facility are of record, but
do not indicate any complaint, clinical finding, or treatment of
headaches.

This is not to say that the appellant has never had complaints or
findings of headaches. A private physician's statement in August
1959 indicated that the appellant complained of severe left frontal
headaches. Ten days later, the physician noted that there were no
further complaints of headaches. VA examination in November 1965
revealed the appellant's complaints of severe, occasional
headaches. Despite these findings, the remaining competent evidence
of record does not indicate that the appellant has a current
headache disorder.

As the evidence does not show that the appellant currently has
clinical findings of headaches, he has not met his burden of
submitting competent medical evidence of a current disorder. In the
absence of proof of a present disability, there can be no valid
claim. Brammer, 3 Vet. App. at 226. The failure to demonstrate a
current disability constitutes failure to present a plausible or
well-grounded claim. Chelte, 10 Vet. App. at 271; Rabideau, 2 Vet.
App. at 143-44. Since the claim is not well grounded, VA cannot
assist the appellant in further development of the claim. 38
U.S.C.A. 5107(a); Morton, 12 Vet. App. at 485.

C. Other Considerations

Although where claims are not well grounded VA does not have a
statutory duty to assist the claimant in developing facts pertinent
to the claim, VA may be obligated under 38 U.S.C.A. 5103(a) to
advise a claimant of evidence needed to complete the application.
This obligation depends upon the particular facts of the case and

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the extent to which VA has advised the claimant of the evidence
necessary to be submitted with a VA benefits claims. Robinette v.
Brown, 8 Vet. App. 69 (1995).

In this case, the RO fulfilled its obligation under 5103(a) in the
June 1998 statement of the case and in the February 1999
supplemental statement of the case in which the appellant was
informed that the reason for the denial of the claim was the lack
of competent evidence of left eye droop and a current headache
disorder. Furthermore, by this decision, the Board is informing the
appellant of the evidence which is lacking and that is necessary to
make the claim well grounded.

When the Board addresses in its decision a question that has not
been addressed by the RO, in this case well groundedness, it must
consider whether the appellant has been given adequate notice to
respond and, if not, whether he has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the
appellant has been accorded ample opportunity by the RO to present
argument and evidence in support of his claim. Any error by the RO
in deciding this case on the merits, rather than being not well
grounded, was not prejudicial to the appellant.

II. Increased Rating Claims

The claims seeking higher evaluations for shell fragment wound
scars under the right eye and left ear, deflected nasal septum, and
right maxillary antrum impairment with tinnitus and post-operative
sinusotomy, are well grounded under 38 U.S.C.A. 5107(a), as they
are not inherently implausible. See.Drosky v. Brown, 10 Vet. App.
251, 254 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992) (contention of an increase in disability severity renders
claim well grounded). The Board finds that VA has satisfied its
duty to assist the appellant in the development of facts pertinent
to the claims. 38 U.S.C.A. 5107(a). On review, the Board sees no
areas in which further development may be fruitful.

Disability ratings are determined by application of a schedule of
ratings based on average impairment in earning capacity. 38
U.S.C.A. 1155. Requests for increased disability ratings require
consideration of the medical evidence of record compared to
criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part
4.

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If the preponderance of the evidence is in favor of the veteran's
claim, or the evidence is in equipoise, the claim is granted. A
claim is denied only if the preponderance of the evidence is
against the claim. See 38 U.S.C.A. 5107 (West 1991); 38 C.F.R.
3.102 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. 4.1; Peyton v.
Derwinski, 1 Vet. App. 282 (1991). However, where entitlement to
compensation has already been established and an increase in the
disability rating is at issue, the present level of disability is
of primary concern. Although a rating specialist is directed to
review the recorded history of a disability to make a more accurate
evaluation, regulations do not give past medical reports precedence
over current findings. 38 C.F.R. 4.2; Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).

The service medical records show that the appellant received a
penetrating shell fragment wound in September 1944. The records
appear to indicate that the shell fragment entered beneath the
right eye, traveled through the right antrum, and imbedded in the
soft tissue of the left cheek immediately lateral to the left
mandible. No fracture was evident. At about this time, he also had
acute maxillary sinusitis. In November 1944, the records show that
he had difficulty chewing food secondary to his inability to
completely open his jaw without dull pain over the left tempero-
mandibular joint. He also complained of a loss of power in biting
hard food. Later that month, the shell fragment was removed. The
separation examination in December 1945 revealed no musculoskeletal
defects and no residuals on the right side of the face. The
examination report noted a history of hospitalization for pneumonia
in February 1945.

Service connection was established for shell fragment wound scars
under the right eye and left ear by February 1946 rating decision,
initially with a noncompensable evaluation. By February 1966 rating
decision, the RO increased the evaluation to 10 percent and
established service connection for rhinitis associated with a right
sinusotomy and for a deflected nasal septum, each rated
noncompensable. Following a Board decision in January 1967, the RO
granted a 10 percent

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evaluation to impairment of the right maxillary antrum with
rhinitis and right sinusotomy. The appellant filed a claim for
increase in this assigned ratings in May 1997. As noted above, by
February 1999 rating decision, the RO assigned a 10 percent
evaluation for a deflected nasal septum.

A. Shell Fragment Wound Scars under the Right Eye and Left Ear

The disability is evaluated under the criteria of Diagnostic Code
7804, which provides for a 10 percent evaluation for superficial
scars, tender and painful on objective demonstration. A higher
evaluation may be assigned under the criteria of Diagnostic Code
7800 for disfiguring scars of the head, face, and neck. A 10
percent evaluation may be assigned where the impairment may be
describe   d as "moderate; disfiguring". A 30 percent evaluation
may be assigned for impairment that is "[s]evere, especially if
producing a marked and unsightly deformity of eyelids, lips, or
auricles." A 50 percent evaluation may be assigned where the record
shows "[c]omplete or exceptionally repugnant deformity of one side
of face or marked or repugnant bilateral disfigurement." 38 C.F.R.
4.118.

VA examination in August 1997 showed that the appellant had no
complaints relative to the scars. Examination revealed a small
entry scar approximately two- by-two centimeters that was well
healed and nontender of the right nasal area. Also noted was a one-
half-by-two centimeter, nontender surgical scar in the left temple
area in front of and slightly below the left tempero-mandibular
joint. The examiner described both scars as flat or slightly
elevated and of skin color. There was no keloid formation,
inflammation, swelling, depression, ulceration, interruption of
vascular supply, or limitation of function. The examiner indicated
that neither scar was tender nor painful on objective demonstration
and that the only cosmetic effective was minor on the right side of
the nose.

VA examination in November 1998 indicated that the appellant
complained of some discomfort in the area of the right proximal
nose. Examination revealed the first scar to be one-by-one-half
centimeter white elevated nontender scar located at the proximal
portion of the right nasal area. The second scar was mildly tender,
flat, one-by-one centimeter well-healed lesion in the left temporal
area. There was

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no adherence, ulceration, underlying tissue loss, inflammation, or
limitation of function. The examiner described the disfigurement as
minimal. The diagnosis was superficial scars to the face secondary
to shrapnel wounds.

The description of the scars as superficial, with some tenderness
on most recent examination, corresponds to the currently assigned
10 percent rating under the criteria of Diagnostic Code 7804. For
a higher, 30 percent evaluation under Code 7800, the evidence must
show severe impairment and/or marked and unsightly deformity of
eyelids, lips, or auricles. 38 C.F.R. 4.118. Neither the August
1997 nor the November 1998 VA examination support such a
conclusion. The August 1997 VA examination found both scars to be
well healed, nontender, flat or slightly elevated, and of skin
color with no keloid formation, inflammation, swelling, depression,
ulceration, interruption of vascular supply, or limitation of
function. Most significantly, the examiner indicated that neither
scar was tender or painful on objective demonstration and described
the only cosmetic effective as minor on the right side of the nose.
The November 1998 VA examination revealed a nontender entry scar
and only a mildly tender surgical scar. There was no adherence,
ulceration, underlying tissue loss, inflammation, or limitation of
function, and the examiner described the disfigurement as minimal
and the scars as superficial. None of the evidence suggests severe
impairment (in fact, the examiners specifically found the
impairment was mild at best) or marked and unsightly deformity of
eyelids, lips, or auricles. Thus, it is the determination of the
Board that the preponderance of the evidence is against the claim
of entitlement to an rating in excess of 10 percent for shell
fragment wound scars under the right eye and left ear.

B. Deflected Nasal Septum and Right Maxillary Antrum Impairment
with Tinnitus and Post-operative Sinusotomy

A private physician in a September 1997 statement wrote that the
septum was relatively straight.

VA clinical records from July 1995 to May 1997 noted the
appellant's complaints of a constantly runny nose, and findings of
rhinitis and sinusitis.

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An August 1997 VA X-ray report of the nasal bones was negative,
showing no evidence of sinusitis and the nasal septum midline
without deviation.

In a September 1997 statement, a private physician noted the past
history of recurrent chronic sinus infections involving pain,
pressure, and drainage from the right side of the nose. The
physician reported that the appellant felt he had less pain and
pressure recently, but continued to have persistent chronic
drainage. Examination revealed the septum to be relatively
straight. There was no frank drainage seen in the middle meatus.
The floor of the nose was clear. There was an amount of thick clear
mucous in the right nasopharynx. Sinus illumination was good and
there was no evidence of active sinus disease. The assessment was
of a history of chronic recurrent sinus disease secondary to sinus
injury, which was somewhat improved but still present.

VA clinical records from October 1997 to June 1998 showed evidence
of chronic and persistent rhinitis resistant to nasal steroids,
requests for renewal of nasal spray, a persistently runny nose for
more than 18 months, and a cough productive of clear mucous.

A March 1998 private MRI of the brain noted mucosal thickening
throughout the left maxillary sinus.

The appellant testified at a September 1998 hearing that he had
constant drainage from the nose and always kept a handkerchief
available.

VA examination in November 1998 indicated that the appellant
consulted a physician seven or eight times in the previous year
because of recurrent sinus infections. Examination revealed nasal
septal deviation to the left producing about a 70 percent
obstruction of the nasal cavity and a yellowish discharge in the
nasopharynx. There was no tenderness over the sinus region and no
swelling. The appellant complained more frequently over the
previous few months of dysphagia. Indirect laryngoscopy revealed
normal larynx, supralarynx structure, and oral cavities. The
impression was that the appellant presented with a history of
chronic sinusitis, nasal obstruction, and dysphagia.

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A November 1998 private X-ray report showed normal paranasal
sinuses.

These disabilities are evaluated under the criteria of diagnostic
codes listed at 38 C.F.R. 4.97. The deflected nasal septum
disability is evaluated under the criteria of Diagnostic Code 6502
for deviation of the nasal septum, which provides for no more than
a 10 percent evaluation. However, the disability may alternatively
be rated under the criteria of other diagnostic codes listed at 38
C.F.R. 4.97. For example, Diagnostic Code 6504 provides for up to
a 30 percent evaluation for scars or loss of part of the nose
exposing both nasal passages. Diagnostic Codes 6515 through 6521
provide for higher evaluations for laryngitis, organic aphonia,
stenosis of the larynx, and injuries to the pharynx. However, the
evidence of record does not indicate exposure of both nasal
passages, laryngitis, organic aphonia, stenosis of the larynx, and
an injury to the pharynx. Thus, a higher evaluation for the
service- connected deflected nasal septum is not warranted.

The right maxillary antrum impairment with tinnitus and post-
operative sinusotomy disability is evaluated as 10 percent
disabling under the criteria of Diagnostic Code 6513 for chronic
maxillary sinusitis. Under the applicable criteria, a 10 percent
evaluation is assigned where there is evidence of one or two
incapacitating episodes per year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic treatment, or three to six
non-incapacitating episodes per year of sinusitis characterized by
headaches, pain, and purulent discharge or crusting. A 30 percent
evaluation may be assigned where there is evidence of three or more
incapacitating episodes per year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic treatment, or; more than six
non-incapacitating episodes per year of sinusitis characterized by
headaches, pain, and purulent discharge or crusting.

The evidence summarized above indicates that the appellant consults
with a physician seven or eight times in the previous year for
recurrent sinus infections. An incapacitating episode of sinusitis
means one that requires bed rest and treatment by a physician. 38
C.F.R. 4.97. While the evidence is unclear as to whether these
episodes required bedrest, it does appear that these episodes were
at least non-incapacitating. Thus, the evidence supports a 30
percent evaluation under

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the criteria of Code 6513. Under that diagnostic code a 50 percent
rating may be assigned following radical surgery or where there is
evidence of near constant sinusitis, headaches, pain and tenderness
of affected sinus and purulent discharge or crusting after repeated
surgeries. There is no indication that the appellant has recently
had surgery for his service-connected disability. Thus, the
criteria for an evaluation in excess of 30 percent under the
criteria of Code 6513 are not met.

Because the disability also involves tinnitus, it may be evaluated
under the criteria of Diagnostic Code 6260 for tinnitus as a
persistent symptom of head trauma. The criteria, though, provides
for no more than a 10 percent evaluation. 38 C.F.R. 4.87. The
disability may also be evaluated under the criteria of Diagnostic
Codes 6522 for allergic or vasomotor rhinitis with polyps,
Diagnostic Code 6523 for bacterial rhinitis with rhinoscleroma, or
Diagnostic Code 6524 for granulomatous rhinitis with some form of
granulomatous infection. 38 C.F.R. 4.97. However, the evidence
summarized above does indicate any findings of nasal polyps,
rhinoscleroma, or granulomatous infection. Thus, an evaluation in
excess of 30 percent is not appropriate under these diagnostic
codes.

III. Effective Date Claim

The claim seeking an effective date earlier than May 28, 1997 for
the grant of service connection for bilateral hearing loss is well
grounded within the meaning of 38 U.S.C.A. 5107(a); that is, it is
not inherently implausible. See Drosky v. Brown,, 10 Vet. App. 251,
254 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)
(contention of an increase in disability severity renders claim
well grounded). The Board finds that VA has satisfied its
obligation to assist the appellant in the development of facts
pertinent to the claim. 38 U.S.C.A. 5107(a). On review, the Board
sees no areas in which further development may be fruitful.

By September 1977 rating decision, the RO denied the appellant's
original claim of service connection for bilateral hearing loss. He
later sought to reopen the claim. The Board, by March 23, 1993
decision, denied his application to reopen the previously denied
claim, as the evidence submitted in support thereof was determined
to be not new and material, but instead it was cumulative and
redundant.

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In a statement, received by the RO on May 28, 1997, the appellant
stated, in part, that he wished increased compensation for his
"s/c." (service-connected) hearing loss. His statement made little
sense, since service connection had not yet been established at
that point. Then, in August 1997, he indicated that he desired
service connection for hearing loss.

In essence, the appellant's May and August 1997 statements together
amounted to a claim to reopen the previously denied claim of
service connection for hearing loss. In response to that claim, the
RO initially, in February 1998, denied the application to reopen.
The appellant initiated an appeal of that decision, and by February
1999 rating decision the RO reopened the claim, granted service
connection for bilateral hearing loss, and assigned an effective
date of May 28, 1997 for the 10 percent disability rating. The
appellant here seeks an effective date for service connected
compensation, earlier than May 28, 1997.

The effective date of an evaluation and award of compensation based
on a claim reopened after final disallowance will be the date of
the receipt of a claim or the date entitlement arose, whichever is
later. 38 U.S.C.A. 5110; 38 C.F.R. 3.400(b)(2), (r). A specific
claim in the form prescribed by the Secretary must be filed in
order for benefits to be paid to any individual under the laws
administered by VA. See 38 U.S.C.A. 5101(a); 38 C.F.R. 3.151(a).
Any communication or action, indicating an intent to apply for one
or more benefits under the laws administered by the Department of
Veterans Affairs, from a claimant, his or her duly authorized
representative, a Member of Congress, or some person acting as next
friend of a claimant who is not sui juris may be considered an
informal claim. Such informal claims must identify the benefit
sought. 38 C.F.R. 3.155.

Between the March 23, 1993 Board decision and May 28, 1997, the
record shows receipt of no document that might serve as a claim. In
this sense, decisions of the Board are final. 38 U.S.C.A. 7104(a).
Thus, an effective date cannot be assigned earlier than the date of
that decision. The appellant did not file any document with the RO
until the May 1997 statement, which was received on May 28, 1997.
Thus, the RO appropriately used May 28, 1997 as the effective date
of the grant of service

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connection for bilateral hearing loss. In light of the available
record, the preponderance of the evidence is against the claim for
an effective date earlier than May 28, 1997 for the grant of
service connection for bilateral hearing loss.

ORDER

Entitlement to service connection for claimed left eye droop is
denied.

Entitlement to service connection for headaches is denied.

Entitlement to an evaluation in excess of 10 percent for shell
fragment wound scars under the right eye and left ear is denied.

Entitlement to an evaluation in excess of 10 percent for deflected
nasal septum is denied.

Entitlement to a 30 percent evaluation for right maxillary antrum
impairment with tinnitus and post-operative sinusotomy is granted.

Entitlement to an effective date earlier than May 28, 1997 for the
grant of service connection for bilateral hearing loss is denied.

J.F. Gough
Member, Board of Veterans' Appeals

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