Citation Nr: 0003662 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-27 174 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to a compensable rating for deviated nasal septum. 3. Entitlement to a rating in excess of 30 percent for asbestosis. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for frostbite of the feet. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of hemorrhoidectomy. 6. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for pilonidal sinus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from October 1950 to October 1953. By rating action dated in October 1956, service connection for frostbite of the feet, residuals of hemorrhoidectomy, and pilonidal sinus was denied. The veteran was notified of that decision by letter dated in November 1956; however, he failed to file a timely appeal therefrom and that action became final. Recently, the veteran requested that the claims for entitlement to service connection for frostbite of the feet, residuals of hemorrhoidectomy, and pilonidal sinus be reopened. The veteran also filed claims for entitlement to service connection for bilateral defective hearing, entitlement to a compensable rating for deviated nasal septum, and entitlement to a rating in excess of 30 percent for asbestosis. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the St. Petersburg, Florida RO that held that no new and material evidence had been submitted to reopen claims for entitlement to service connection for frostbite of the feet, residuals of hemorrhoidectomy, and pilonidal sinus, and denied entitlement to service connection for bilateral defective hearing. The April 1997 rating decision also granted service connection for deviated nasal septum, evaluated as 0 percent disabling effective in January 1997, and granted service connection for asbestosis, evaluated as 10 percent disabling effective in January 1997. By rating decision dated in August 1998, the rating for asbestosis was increased from 10 percent to 30 percent, effective in January 1997, and the appeal was continued. In May 1999, a hearing was held at the St. Petersburg, Florida RO before C.W. Symanski, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). By a December 1997 statement, the veteran raised the issue of entitlement to service connection for a heart disorder as secondary to service-connected asbestosis. Since this issue has not been developed for appellate review, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran suffers from defective hearing that had its onset as a result of noise trauma during active military service. 2. The veteran's service-connected deviated nasal septum is manifested by the veteran's complaints of difficulty breathing and evidence of a partially occluded right nasal passageway; there is no evidence of 50 percent obstruction of the nasal passages on both sides or of complete obstruction on one side. CONCLUSIONS OF LAW 1. Defective hearing was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.385 (1999). 2. The criteria for a compensable rating for a deviated nasal septum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.31, 4.97, Diagnostic Code 6502 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran served on active duty in the United States Coast Guard from October 1950 to October 1953. An October 1950 enlistment examination report indicates that the "whispered voice" test was conducted and the veteran received a 15/15 evaluation for both ears. The examination report contains no audiometric test results and records no complaints of hearing difficulty or abnormalities of the ears. A December 1952 service medical record notes the veteran's complaints of difficulty breathing due to a fractured nose sustained a year earlier. Upon examination, the nasal passage appeared normal with no appearance of any block or interruption. Diagnosis was septal deviation due to trauma. Service medical records note that the veteran underwent a submucous resection in February 1953. A September 1953 discharge examination report indicates that the "whispered voice" and "spoken voice" tests were conducted; the veteran received a 15/15 evaluation for both ears on both tests. The examination report contains no audiometric test results and records no complaints of hearing difficulty or abnormalities of the ears. The examination report also notes no complaints or findings of a deviated nasal septum. The veteran was found to be physically qualified for discharge. Treatment records from Treasure Coast Head and Neck Surgeons note that the veteran was seen in April 1992 with complaint that he developed a virus "a month ago" and lost "70 percent of the hearing" in his left ear. He indicated that the hearing was coming back but was still not perfect. Examination revealed clear canals and retracted tympanic membranes. A little bit of fluid was noted in the left ear. Impression was resolving otitis media. An April 1992 audiogram revealed moderate to severe mixed hearing loss bilaterally. A May 1992 treatment record notes that the veteran continued to have hearing loss. An April 1997 rating decision, in pertinent part, granted service connection for deviated nasal septum, evaluated as noncompensable effective from January 1997, and denied service connection for bilateral defective hearing. The veteran appealed this decision. A June 1997 VA outpatient treatment report notes the veteran's complaints of hearing loss due to noise exposure aboard a Coast Guard ship. Upon examination, the ear canals were clear. Audiological evaluation revealed moderate to severe hearing loss in the right ear and severe hearing loss in the left ear. VA outpatient treatment reports dated in September 1997 note that the veteran was fitted for hearing aids. A July 1997 special VA nose and throat examination report notes that the veteran indicated that his breathing had improved since his surgery during service; however, he complained that he was still having difficulty breathing due to an obstructed right nasal passageway. In addition, the veteran stated that he has to breathe with his mouth open at night. Upon examination, the nasal passageway on the right was partially occluded and the nasal passageway on the left was almost normal. Diagnosis was right nasal passageway obstruction, status post surgery for deviated nasal septum. A July 1997 special VA audio-ear disease examination report notes the veteran's complaints of bilateral hearing loss. The veteran reported that he was exposed to loud noises without ear protection while working in the engine room of a Coast Guard ship. Examination of the ears revealed normal canals and no active ear disease. Diagnosis was sensorineural hearing loss. The examiner stated that "[t]his type of hearing loss is consistent with noise exposure as reported in engine rooms of ships." The veteran also underwent an audiological examination in July 1997. He reported a history of noise exposure during his military service, including noise from his ship's engine room, generators and chipping hammers. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 65 60 55 LEFT 65 65 70 65 55 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 60 percent in the left ear. Diagnosis was moderately severe mixed hearing loss with poor word recognition. The audiologist stated: I have no explanation for the conductive component and will leave that to ENT to explain. The sensorineural component is greater than expected for aging alone, therefore it is at least as likely as not that at least some of that damage is from military noise. The veteran testified during a December 1997 personal hearing that during service, he worked on the deck floor-where he was exposed to noise from hammer drills-and in the engine room. He stated that he first noticed his hearing loss "about a year before [he] got out" of service. He indicated that was rejected from reenlistment in the Coast Guard in 1957 because of his hearing loss. The veteran further testified that, because of his deviated nasal septum, he is unable to breathe through his nose while sleeping. He indicated that he instead breathes through his mouth. In a statement dated in April 1999, the veteran's brother-in- law stated that the veteran was rejected from reenlistment in the Coast Guard in 1957 because of his defective hearing. The veteran testified during a May 1999 Travel Board hearing that he worked as an electrician and did odd jobs after his military service. He stated that following his discharge from service, he "never was exposed to places with any loud noises." The veteran also testified that he has problems breathing due to his deviated nasal septum. Specifically, he stated that he does not breathe through his nose at night. Analysis Bilateral Defective Hearing The veteran contends that hearing loss was incurred during active military service as a result of noise exposure from working in his ship's engine room. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist under 38 U.S.C.A. § 5107(a). Under applicable criteria, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In this regard, it should be pointed out that hearing acuity is not considered impaired for purposes of an award of service connection unless audiometric test results, including speech recognition scores, have reached a certain level. The provisions of 38 C.F.R. § 3.385 (1999) provide that: For the 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, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Initially, the Board notes that a July 1997 VA examination report demonstrates that the veteran currently suffers from disabling impaired hearing as defined by 38 C.F.R. § 3.385 (1999). As previously noted, the available medical evidence shows an enlistment examination and a discharge examination that are negative for defective hearing. The veteran's personnel records note that he served in the United States Coast Guard for three years. Post-service records reflect the presence of defective hearing only many years after service. However, the Board finds that the veteran's detailed complaints of bilateral hearing loss dating back to noise exposure in a ship's engine room during service are credible, and there is no competent evidence of a post-service intervening cause of hearing loss. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("It is the responsibility of the BVA . . . to assess the credibility and weight to be given to the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). In addition, a July 1997 VA opinion medically links the veteran's current bilateral hearing loss to service. The VA examiner indicated that, given the veteran's noise exposure during service, his hearing loss is at least as likely as not related to service. The veteran's complaints, viewed in conjunction with the VA examiner's opinion, raise a reasonable doubt on the question of whether the veteran has bilateral defective hearing that had its onset during service. It is the Board's judgment that the evidence is in relative equipoise on the question at hand and, therefore, the benefit of the doubt doctrine is applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that service connection for bilateral defective hearing is warranted. Deviated Nasal Septum The veteran contends that his service-connected deviated nasal septum is more disabling than currently evaluated. Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, he has submitted a claim that is plausible-capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In addition, VA has a duty to acknowledge all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran is currently assigned a noncompensable rating under Diagnostic Code 6502, deviation of nasal septum. Under the applicable criteria, traumatic deviated septum with 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97, Diagnostic Code 6502 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The Board concludes that the veteran's current evaluation of 0 percent fully contemplates the level of disability due to his service-connected deviated nasal septum. The Board notes the veteran's complaints of difficulty breathing; however, the record contains no evidence of 50 percent obstruction of the nasal passages on both sides or of complete obstruction on one side. In fact, a July 1997 VA examination report notes that the veteran has only a partially occluded right nasal passage and an "almost normal" left nasal passage. As such, it is clearly shown that the veteran's symptoms do not warrant a 10 percent rating under Diagnostic Code 6502. Accordingly, the Board concludes that, that with application of 38 C.F.R. § 4.7, the criteria for compensable ratings for a deviated nasal septum are not met. The Board also has considered whether the veteran is entitled to a "staged" rating for his deviated nasal septum, as prescribed by in Fenderson. However, the rating described above reflects the greatest degree of disability shown by the record; thus, a staged rating is not for application. ORDER Entitlement to service connection for bilateral defective hearing is granted. Entitlement to a compensable rating for deviated nasal septum is denied. REMAND The veteran contends that his service-connected asbestosis is more disabling than currently evaluated. The veteran asserts that the evaluation currently in effect for his service-connected asbestosis is not adequate. It is his contention that his asbestosis has gotten worse since a June 1997 VA examination. In addition, the Board notes that the issue of an extraschedular rating has been raised by the veteran. The veteran noted in a May 1997 Notice of Disagreement and during a June 1997 VA examination that he is unable to work essentially because he has problems breathing. He testified during a May 1999 Travel Board hearing that he was most recently employed as a deputy sheriff in a prison, but left the job due in part to his asbestosis. VA has a duty to assist the appellant in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). Considering the contention that the appellant's asbestosis is worse than currently rated, further development is required to ascertain his current status. Following the gathering of all available medical records, the appellant should be afforded a special VA pulmonary examination. In addition, the Board notes that 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service- connected disability, then an extraschedular evaluation will be assigned. If the question of an extraschedular rating is raised by the record or the veteran before the Board, the correct course of action for the Board is to raise the issue and remand the matter for decision in the first instance by the RO. Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996). The RO has not yet considered the assignment of an extraschedular rating. Consequently, the Board finds that the case must be remanded for additional development. Finally, the Board also notes that in Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection (as in this case) and a claim for an increased rating for a service- connected disability. The Court found two important reasons for this distinction-consideration of "staged" ratings and the adequacy of the statement of the case. On Remand, the RO will have an opportunity to specifically consider whether staged ratings would be appropriate. The veteran also contends that the RO erred by failing to grant service connection for frostbite of the feet, residuals of a hemorrhoidectomy, and pilonidal sinus. It is noted that the Court in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) set forth a test that required that, in order to reopen a previously denied claim, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin at 174. In holding that the claim had not been reopened, the RO clearly relied on the Colvin test, noting in the April 1997 rating action and the September 1997 statement of the case the following language: To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. There is no reasonable possibility that the new evidence submitted in conjunction with the current claim would change our previous decision. The Board notes, however, that in a recent decision, Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that in the Colvin decision, the Court impermissibly ignored the definition of "material evidence" adopted by VA (in 38 C.F.R. § 3.156) as a reasonable interpretation of an otherwise ambiguous statutory term (38 U.S.C.A. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different benefits scheme. Hence, the Federal Circuit overruled the Colvin test for purposes of reopening claims for the award of veterans' benefits. In reaching this conclusion, the Federal Circuit further observed that "not only did the [C]ourt's adoption of the Colvin test improperly negate the regulation implemented by [VA], it may undermine the operation of the veterans' benefits system by altering its traditional character, making it more difficult for veteran claimants to submit additional evidence for Board consideration." Hodge, supra. In view of this recent decision by the Federal Circuit, the veteran's application to reopen the previously denied claims for service connection for frostbite of the feet, residuals of a hemorrhoidectomy, and pilonidal sinus must be remanded for a determination as to whether the evidence submitted by the veteran is "material" as defined under 38 C.F.R. § 3.156(a) (1999) rather than under Colvin. The case is consequently REMANDED for the following action: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for asbestosis since 1997. After receiving this information and any necessary releases, the RO should contact the named medical providers and request copies of all records of treatment relating to asbestosis since 1997 which have not already been obtained. All records obtained should be associated with the claims folder. 2. After the aforementioned development has been completed, the RO should schedule the veteran for a comprehensive VA pulmonary examination to determine the nature and severity of any asbestosis. The claims folder should be made available to the examiner for review. The veteran's history, current complaints, and examination findings must be reported in detail by the examiner. Pulmonary function tests and x-ray studies should be performed. The studies conducted should include those to determine the following: FVC, DLCO (SB), maximum oxygen consumption (with cardiorespiratory limit), and maximum exercise capacity. The values of the aforementioned should be specifically recorded. Findings such as the degree of dyspnea on exertion should be addressed. The rationale for the examiner's opinions should be explained in detail. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development has been completed. If any development is incomplete, appropriate corrective action should be implemented. Thereafter, the RO should readjudicate the veteran's claims with regard to all pertinent diagnostic codes and regulations and, in particular, should consider the principles set forth by the Court in Fenderson regarding initial ratings for service-connected disabilities. In addition, the RO's attention is directed to the issue of whether referral for consideration of an extraschedular rating for the veteran's asbestosis is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). Should submission under § 3.321(b)(1) be deemed unwarranted, the reasons for this decision should be set forth in detail. In readjudicating the issues of whether the appellant has submitted new and material evidence sufficient to reopen claims of entitlement to service connection for frostbite of the feet, residuals of a hemorrhoidectomy, and pilonidal sinus, the RO should consider whether the evidence submitted by the appellant is "material" as defined under 38 C.F.R. § 3.156(a) (1999) rather than under Colvin. If any claim is denied, a supplemental statement of the case should be issued. The appellant should be given an opportunity to respond thereto. Thereafter, this case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. C. W. SYMANSKI Member, Board of Veterans' Appeals