Citation Nr: 0007237 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-31 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for right eye disorder. 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for chronic headaches. 4. Entitlement to an increased (compensable) rating for hearing loss, left ear. 5. Entitlement to an increased rating for residuals of shell fragment wound to the right side of face, with multiple foreign bodies in the right orbit, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from November 1950 to August 1952. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 19994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, inter alia, denied the benefits sought on appeal. The veteran's claim of entitlement to service connection for a heart condition will be addressed in the Remand portion of the decision. FINDINGS OF FACT 1. There is no medical evidence of a nexus between any current right eye disorder and the veteran's military service or to a service connected disability. 2. Chronic headaches were not demonstrated during the veteran's service, and a preponderance of the competent evidence of record is against a finding that such a disorder was caused or aggravated by service or related to a service connected disability. 3. Service connection for hearing loss is established for the left ear only, and the medical evidence demonstrates that the appellant currently has Level V hearing impairment in his left ear. 4. Residuals of a shell fragment wound on the right side of the face with multiple foreign bodies in the right orbit are manifested by occasional pain, scars that are not noticeable or disfiguring, and without other sequelae. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right eye disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Chronic headaches were not incurred in military service nor are chronic headaches proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 5107(West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.310 (1999). 3. The schedular criteria for a compensable rating for hearing loss, left ear, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 6100 (1999). 4. The schedular criteria for rating in excess of 10 percent for shell fragment wound of the right side of the face with multiple foreign bodies in the right orbit have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 4.84a, Diagnostic Code 6009 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran sustained a multiple pinpoint shell fragment wounds to the face in service in Korea in 1951. The day following the incident, his vision was normal. Six months later he presented with complaints of pain in the right eye. On his medical examination for discharge from service in August 1952, his vision was normal and there were no reported complaints or clinical findings of pain or headaches documented. In August 1955, the veteran was afforded a VA examination. Several small metallic foreign bodies in the soft tissue of the right side of the face and a small one in the lateral part of the right orbit were identified on X-ray in August 1955. An eye examination at that time reported that the veteran's eyes were externally normal and with no pathology in fundus. A minimal amount of myopia was found. In September 1955, the veteran was afforded another VA examination. Inspection at that time revealed "the minutest white streak about 1/4 inch in length appearing within the upper eye brow which was the alleged penetrating shrapnel injury above the eye. There was no retained foreign body palpable, the scar was not noticeable, not disfiguring in any way." Several spotty areas about the size of a pin head were also noted, which had "to be closely observed to be seen at all." There was neither vascular, neurologic or muscular involvement. The shell fragment wound was identified as "extremely minute, superficial [and] without residuals." Clinical records from July 1993 report the veteran with pain in the temporal area, which he reported as coinciding with when it was time to change the prescription for his eye glasses. The veteran claimed a history of shrapnel in his right eye. His corrected visual acuity at a September 1993 visual examination was 20/25 in both eyes. There was no diplopia and no visual field deficit. There were corneal scars in both eyes, which were not affecting his visual acuity. His ocular health was otherwise normal. In the context of the current claim, the veteran was afforded a VA general medical examination in September 1993. Eyes were reported as normal. Extraocular movements were intact. No eye pathology was identified or diagnosed. In December 1997, the veteran was afforded a VA vision examination. Diagnosis was senile cataracts in both eyes causing slight decrease in vision. The examiner commented that the cataracts were unrelated to a previous eye injury. There was no retrobulbar disease and no sign of further pathology. A May 1998 addendum was also provided, in which the examiner commented that the veteran showed no sign of retinal trauma and no ocular signs of decreased vision as a result of a shrapnel wound. Claims for Service Connection Right Eye Condition Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. Secondary service-connection may also be granted for the degree to which a non- service-connected disorder is aggravated by a service- connected disorder. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). The threshold question which must be answered as to the claimed right eye condition is whether the veteran has presented a well grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well- grounded claim for service connection generally requires (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). Alternatively, the U.S. Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. In addition to that evidence cited the background section of this decision, in December 1995, the veteran was afforded a VA neurological examination, which produced the assessment of status post fragment wound of the right lateral face with no involvement of the eye. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The Board notes that, to the extent that the veteran's right eye may have exhibited refractive error in service, such a defect has not been associated with any service connected disability, and, in any event, under 38 C.F.R. § 4.9 (1999), refractive error of the eye is not a disease or injury in the meaning of applicable legislation for disability compensation purposes. The Board also notes that, with reference to the claim for service connection for an actual disability of the right eye, over and above the damage to the right orbit which is already service connected, there is no medical evidence of a nexus between any current right eye disorder and any incident in service. Therefore, the claim for service connection for a right eye disorder is not well grounded and must be denied on that basis. Headaches With respect to the veteran's claim of entitlement to service connection for headaches, the Board finds that, considering the September 1993 VA general medical examination, which indicated that the veteran's headaches were chronic and "probably related to his old shrapnel wound," the veteran has presented a claim which is "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled. As noted above, disability which is proximately due to or the result of a service-connected disease or injury may also be service connected. 38 C.F.R. § 3.310. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Additionally, 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. Each disorder for which a veteran seeks service connection must be considered on the basis of evidence, including that shown by his service records, his medical records, and pertinent medical and lay evidence. Id. In adjudicating the well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, except for one incident in 1952, service medical records are silent as to complaints, treatment or diagnoses relating to headaches. Likewise, VA examinations proximate to the veteran's discharge are silent as to headaches. The veteran provided copies of treatment records from a private physician for the period from 1989 through 1994. Such records are entirely silent as to complaints, treatment or diagnoses relating to headaches. Clinical records from July 1993 indicate that the veteran associated his headaches with the need for a change in prescription glasses. As noted above, in September 1993, the veteran was afforded a VA general medical examination. The veteran reported sharp pains above the right eye that occur daily. Cranial nerves II-XII were intact. Diagnosis, inter alia, was chronic headaches, probably related to an old shrapnel injury. The veteran testified at a personal hearing in September 1995 that he had headaches associated with when it was time to have his glasses changes and at other times as well. When asked if he thought his current headaches were caused by the shrapnel wound in 1951, the veteran testified, "I think it is, but I don't know. I could be wrong." In December 1995, the veteran was afforded a VA neurological examination. The examiner commented that the veteran had "at best a very small scar on the lateral aspect of the right face behind the eye. It is difficult to see and [the examiner was] not sure it was really there." Assessment was status post fragment wound of the right lateral face with no involvement of the eye. Chronic headaches were reported as not absolutely associated with the shell fragment wound. The veteran's headaches were again addressed in a December 1997 VA neurological examination. At that examination, the veteran reported that he had received about a hundred stitches in his face as a result of the shrapnel and that he stayed in the hospital for about 100 days to recuperate. He also claimed that he used to see the scars until he aged. After a physical examination, the examiner commented that it was not likely that the superficial wounds sustained could precipitate chronic headaches without a documented loss of consciousness or post concussive syndrome. The examiner also observed that there was no evidence of shrapnel in the eye which could cause headaches. The Board finds that the evidence contemporaneously associated with the veteran's service demonstrates that his headache complaint in service was acute and transitory in nature, with no evidence of any residual pathology. After a comprehensive review of the record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for chronic headaches. The opinion of September 1993, which supports the veteran's claim, provided no basis or rationale for the conclusion that the veteran's headaches were related to his shell fragment wound. The examiner in that instance does not appear to have examined the claims file and appears to have relied on history as provided by the veteran. A medical opinion based entirely on a claimant's historical account of his medical and service background lacks probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). The examiner who performed the December 1997 VA neurological examination, on the other hand, reviewed the claims file, considered the relatively minor sequelae sustained in connection with the shell fragment wound sustained in service, and provided a well- reasoned rationale for his conclusion that the veteran's headaches are not likely related to the shrapnel injury. The Board finds that the December 1997 opinion has greater probative value than the September 1993 opinion, and, therefore, entitlement to service connection for chronic headaches is not established. Finally, in reaching the conclusion that the veteran does not have a chronic headache disorder related to service, the Board is mindful of the fact that sequelae of the residuals of the veteran's shell fragment wound of the right side of the face, as discussed below, include occasional pain in or near the orbit. However, the medical evidence in this case does not show headaches as a distinct entity, disassociated from the shell fragment wound. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Increased Ratings As a preliminary matter, the Board finds that the appellant's claims of entitlement to an increased evaluation for unilateral hearing loss and for residuals of a shell fragment wound are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well-grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly and sufficiently developed with regard to this issue. Disability ratings are rendered upon the VA's Schedule for Rating Disabilities as set forth at 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. The higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exacerbations proportionate" with the severity of the disability. 38 C.F.R. § 4.1. The present level of disability is of primary concern where service connection has been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1996). Compensable Rating for Hearing Loss, Left Ear. During the pendency of this appeal, VA issued new regulations for evaluating disabilities affecting auditory impairment. 64 Fed. Reg. 25202 (1999). They were effective June 10, 1999. Where laws or regulations change, after a claim has been filed or reopened, and before administrative or judicial process has been concluded, the version most favorable to the veteran applies, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991). While the regulations noted above had been published and became effective during the pendency of this appeal, they were not applied to the present claim as the case was certified prior to the promulgation of the regulations. A comparison to the previous version of the regulation does not disclose any pertinent change to the regulation that would affect the outcome of this decision, however. See 38 C.F.R. § 4.85, 4.87, 4.87a (1999). Therefore, the Board concludes that the veteran is not prejudiced by application of the current criteria to his claim as there were no substantive changes in the regulation. Entitlement to service connection for the veteran's left ear has been in effect since May 1955, with a non-compensable evaluation. Evaluations of unilateral defective hearing range from noncompensable to 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels, ranging from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, the hearing acuity of the nonservice-connected ear is looked upon to be normal except in cases of bilateral total deafness. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Codes 6100 to 6101. The veteran was afforded a VA audiological examination conducted in January 1994. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT n/r 20 60 65 70 LEFT n/r 15 70 80 80 The average decibel loss between 1000 and 4000 hertz was 65 decibels in the service connected left ear. Speech audiometry testing revealed speech recognition ability of 68 percent in the left ear. Although the veteran suffers from bilateral hearing loss, service-connection is in effect for the left ear only. Bilateral total deafness is not shown by objective testing. When the issue involves a claim for an increased rating for a hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. 38 C.F.R. § 4.85, Tables VI and VII. The Board emphasizes that "assignment of disability ratings for hearing impairment are by mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 339 (1992). Considering the foregoing, evaluation of the noted findings in the context of Table VI of 38 C.F.R. § 4.87 indicates that the designation of a level V hearing impairment of the service connected left ear is appropriate. Comparing the veteran's service connected left ear level V hearing impairment against the designated "better" right ear pursuant to Table VII of that same regulatory section reveals that a noncompensable evaluation continues to be appropriate for the veteran's level of hearing loss in his left ear. Therefore, the preponderance of the evidence is against entitlement to a compensable evaluation for hearing loss. Increased rating for Residuals of Shell Fragment Wound An unhealed injury of the eye is to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity. The minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84(a), Diagnostic Code 6009. In addition, VA regulations provide that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. In the veteran's case, while there is some medical evidence of pain, there is no indication of other sequelae, rest- requirements, or episodic incapacity due to the residuals of injury to the right eye. Accordingly, the veteran is not entitled to an evaluation in excess of 10 percent for his right eye injury under the criteria of Diagnostic Code 6009. Evaluation of the veteran's condition under other Diagnostic Codes would not be more beneficial to the veteran in the absence of such symptomatology demonstrating pertinent pathology or a more debilitating condition thereunder. For example, the Board notes the absence of muscle injury and the clinical record demonstrates that any scarring is barely noticeable such that evaluation of the veteran's disability under pertinent Diagnostic Codes for muscle injuries or scars would not produce a more favorable outcome. Conclusion The evidence in support of the claims of entitlement to service connection for the issues on appeal and with respect to the increased rating claims, other than as reported above, is, essentially, only the assertions and testimony of the veteran. The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to make a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). There is no competent evidence of record which indicates that the veteran's service connected disabilities have caused marked interference with employment beyond that which is contemplated under the schedular criteria, or that there has been any necessary inpatient care. Thus, there is no basis for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the evidence of record to indicate that the application of the regular schedular standards is impractical in this case. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). ORDER Service connection for right eye disorder is denied. Service connection for chronic headaches is denied. An increased (compensable) rating for hearing loss, left ear, is denied. An increased rating for residuals of shell fragment wound to the right side of face, with multiple foreign bodies in the right orbit, is denied. REMAND VA regulations require that a supplemental statement of the case (SSOC) be furnished to an appellant when additional pertinent evidence is received following the issuance of a statement of the case (SOC) or SSOC. The last SSOC addressing the issue of entitlement to service connection for heart disease was furnished in May 1999. In September 1999, before this case had been certified to the Board by the agency of original jurisdiction (AOJ), the veteran's representative submitted as evidence several medical articles purporting to associate the veteran's heart disease with his service connected psychiatric condition. Because the record does not reflect that such evidence was first considered by the AOJ, and the veteran did not waive AOJ consideration, a decision by the Board at this time on the issue of entitlement to service connection for heart disease is precluded and a remand from the Board to the RO is necessary to accord the veteran due process. 38 C.F.R. § 19.31 (1999). Inasmuch as the remand is necessitated to remedy a procedural defect, a well groundedness determination is not being rendered at this time. For the reasons stated, this case is REMANDED to the RO for the following actions: The RO should reconsider the veteran's claim of entitlement to service connection for heart disease in light of the evidence submitted since the May 1999 SSOC. The RO may undertake any other development deemed necessary. If the benefit sought is denied, an SSOC should be issued. The SSOC should contain, inter alia, a summary of the evidence received since the last SSOC was issued. 38 C.F.R. §§ 19.29, 19.31. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review, if otherwise in order. No action is required by the veteran until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). JAMES A. FROST Acting Member, Board of Veterans' Appeals