Citation Nr: 0002615 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-31 814A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES Entitlement to service connection for residuals of bilateral ankle injuries. Entitlement to service connection for left ear hearing loss. Entitlement to service connection for temporomandibular joint disorder. Entitlement to a rating greater than 10 percent for residuals of hepatitis. Entitlement to a rating greater than 10 percent for allergic rhinitis. Entitlement to a compensable rating for right ear hearing loss. Entitlement to a compensable rating for teeth 4, 18, 19, 30, and 31. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active service from June 1972 to September 1993. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, in March 1994 which, inter alia, granted service connection for right ear hearing loss, residuals of hepatitis, allergic rhinitis, and teeth 4, 18, 19, 30, and 31, assigning the ratings noted above, and denied service connection for temporomandibular joint disorder, left ear hearing loss, and residuals of bilateral ankle injuries. It should be noted that, although the veteran initially disagreed with the denial of service connection for diminished eyesight and of the assigned ratings for hypertension and tinnitus, he later withdrew his appeal of those issues. The issue concerning service connection for temporomandibular joint (TMJ) disorder will be addressed in the Remand that follows this decision. FINDINGS OF FACT 1. The veteran does not have bilateral ankle disorders that resulted from ankle injuries in service. 2. The veteran does not have a left ear hearing loss. 3. Residuals of the veteran's hepatitis are manifested by occasional mild gastrointestinal disturbance and demonstrable liver damage. 4. The veteran's allergic rhinitis is manifested by nasal discharge and 25 percent obstruction on the left side, but no atrophy, crusting, ozena, anosmia, or polyps. 5. The veteran has level I hearing in the right ear. He is not deaf in the non-service-connected left ear. 6. The masticatory surfaces of teeth 4, 18, 19, 30, and 31 have been restored by treatment or suitable prosthesis. CONCLUSIONS OF LAW 1. Residuals of bilateral ankle injuries were not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. Left ear hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303 3.385 (1999). 3. Residuals of hepatitis are not more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, .4.10, and Code 7345 (1999). 4. Allergic rhinitis is not more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, .4.10, and Code 6522 (1999). 5. Right ear hearing loss is 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, .4.10, and Code 6100 (1999). 6. Teeth 4, 18, 19, 30, and 31 are 0 percent disabling. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, .4.10, and Code 9913 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The service medical records show that the veteran was treated for hepatitis B in the early 1970s and that he was later diagnosed with chronic persistent hepatitis, confirmed by liver biopsy. The condition was noted to resolve slowly during the 1970s and, after 1980, no symptoms or abnormal clinical findings were attributed to the disorder; blood tests of liver function remained normal through the remainder of service. At the time of the veteran's retirement examination in August 1993, he did not report a history of any gastrointestinal or other complaints that might be referable to his previous hepatitis. The treatment records indicate that he was at times seen in recent years for complaints including headache, cough, upset stomach, and malaise, but the complaints were attributed to a "virus," upper respiratory infections, or sinusitis. The service records repeatedly indicate that, after 1980, the veteran was asymptomatic with regard to his prior hepatitis. The service medical records show that he developed high frequency sensorineural hearing loss in his right ear during service. The records note his exposure to noise on the flight line for many years, as well as 1990 findings of normal sloping to severe high frequency sensorineural hearing loss in both ears, poorer on the right, with excellent speech discrimination. Other records indicate that the veteran's hearing in his left ear was normal. Although an audiometric examination in June 1972 noted a pure tone threshold of 45 decibels at 4,000 Hertz in his left ear, numerous other such examinations between 1977 and 1991 showed no pure tone threshold of more than 15 decibels in the left ear at any frequency between 500 Hertz and 4,000 Hertz. The service medical records do not reflect any complaints regarding either ankle at any time during service and no abnormal clinical findings regarding either ankle were recorded during service. On numerous examination reports, the veteran noted his childhood right leg fracture, which had completely healed, but he made no reference to any history of an ankle injury or to any problems with either ankle. Although the service records note occasional complaints of cough and upper respiratory infections, they do not refer to any symptoms of allergic rhinitis. Service dental records reflect endodontic treatment (pulpectomy) to teeth 4, 18, 19, 30, and 31 for cracked teeth. A VA general medical compensation examination was conducted in January 1994. The veteran reported that during the years after his initial episode of hepatitis in service he noted persistent easy fatigue with intermittent increases. He also indicated that he had symptoms that he referred to as "flu- like," which included an increase in his usual low-level diarrhea and nausea, as well as occasional cough. The veteran stated that he was allergic to a number of substances that caused severe allergic symptoms, including lacrimation and burning of his eyes, as well as sneezing. He also reported that his ankles were injured in 1978 when they were crushed between two boats. He indicated that x-rays at the time of the injury revealed no fracture, but that he had pain for several weeks afterward and still had intermittent pain in his ankles without swelling. The veteran also stated that the pain he had experienced in his mandible and maxilla in service, which was attributed to cracked teeth, had abated recently. On examination, it was noted that the veteran had not had any recent weight change. He was well nourished and did not appear ill. No pertinent abnormal clinical findings were recorded. The negative findings included clear ocular sclerae, no nasal obstruction or discharge, and no hepatic tenderness or enlargement. No clinical findings regarding the veteran's ankles were noted, except that his gait was normal and he was able to tandem and heel and toe walk. The listed diagnoses included chronic recurrent hepatitis B; intermittent mild hay fever; and status post-traumatic arthritis of the ankles, "no present site or pathology on examination." Liver function tests were reported to be in the normal range. X-rays of both ankles were reported as being essentially within normal limits. On VA dental examination conducted in January 1994, the veteran did not express any complaints regarding his service- connected teeth. He was primarily concerned that his other teeth were also cracking and would require root canal work, as did the service-connected teeth. The examiner noted facial crazing in teeth # 11 and # 21 that was of no significance. On an authorized audiological evaluation in December 1993, pure tone thresholds, in decibels, were as follows: HERTZ (CYCLES PER SECOND) 500 1000 2000 3000 4000 Right 20 25 10 30 75 Left 10 10 5 5 15 Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and of 96 percent in the left ear. The veteran's private physician wrote in August 1994 that he had treated the veteran since April 1992, primarily for allergic rhinitis. He indicated that his symptoms had become so severe that he had sought treatment outside the Air Force. The physician noted that a complicating factor was the veteran's chronic hepatitis with its "insidious and disabilitating [sic] symptoms." He stated that the veteran had "debilitating episodes of Gastrointestinal disturbances, Fatigue and Anxiety associated with mild to moderate Liver Damage." He wrote that each of the above was a current active problem for which the veteran was undergoing care in his office. Office records of the private physician dated from April 1992 to January 1995 reflect periodic evaluation and treatment only for symptoms of nasal congestion and allergic rhinitis; antihistamines were prescribed, as well as occasional antibiotics for sinus infections, and allergy injections were administered. Clinical findings were generally negative, except an early nasal polyp was reported in January 1995. Liver function blood tests in October 1994 reportedly were in the normal range. The records do not show any gastrointestinal complaints or abnormal clinical findings regarding hepatitis residuals. A private infectious disease specialist wrote in April 1995 that the veteran had seasonal problems with allergies. From November to March each year he had an increasing number of colds, manifested by non-specific generalized achiness, weakness, fatigue, and runny nose. The veteran indicated that he would occasionally feel hot, although he would not have a fever. Occasionally during those periods, he would have to stay at home. The veteran reported that during those episodes he would also have nausea, vomiting, and occasional diarrhea. Beginning in August 1994, some swelling in the area of the veteran's parotid glands had been noted; a tentative diagnosis of Sluder's syndrome had been assigned. The oral examination was negative and the teeth were noted to be in good repair. On examination of the outside of the face, there was some soft tissue swelling bilaterally in the area of the parotid glands at the angle of the jaw. The veteran was unable to open his mouth fully because of discomfort. The abdominal examination was essentially normal. The examiner's impression included the veteran's long history of seasonal allergic rhinitis and sinusitis, as well as his 8-9 month history of bilateral facial swelling. The examiner suspected that there may be some connection between the facial swelling and the veteran's longstanding allergic or hypersensitivity state. She doubted that there was any connection to his history of hepatitis. A private dentist wrote in May 1995 that, on examination of the veteran, he had found swelling in the parotid gland area, pain on mandibular movement and function, internal temporomandibular joint pain, limited oral opening, and general malaise. His differential diagnoses included parotitis and temporomandibular joint dysfunction. He noted the veteran's history of reconstruction of his posterior teeth that had altered his occlusal pattern and was consistent with temporomandibular joint (TMJ) dysfunction. A private allergist wrote in July 1995 that he had been treating the veteran for recurrent nasal congestion and moderately severe rhinitis, as well as moderately severe deviation of his nasal septum that impinged on his turbinates and resulted in subsequent sinus pressure headaches, malaise, and continuing post-nasal drip. He indicated that the veteran's allergic/vasomotor rhinitis had not responded to conservative medical treatment and continued to cause debilitating symptoms, leading to extreme fatigue, headaches, malaise, and a feeling of a low-grade fever. A personal hearing was conducted before a hearing officer at the RO in August 1995. At the hearing, the veteran's representative raised the issue of service connection for temporomandibular joint syndrome secondary to his service- connected dental disability. The veteran described the incident in service in which he injured his ankles. He indicated that, although x-rays were negative for fracture, there was soft tissue damage and he was on crutches for both ankles for 3-4 weeks. He testified that at times his ankles become swollen and give way easily. The veteran stated that his ankles are swollen in the morning. He stated that he had received no specific treatment for his ankles since his retirement from service. The veteran also testified that he had difficulty understanding what people around him were saying at times. He stated that, to him, the hearing in neither ear appeared any worse than that in the other. Regarding his hepatitis, the veteran noted that liver biopsies in service verified the presence of moderate liver damage; on that basis, he believes that a compensable rating is warranted for the disability. He also stated that the dentists in service had done an excellent job fixing his teeth and "I have no problem with that." He indicated that he used 10-12 days of sick leave per year, plus additional vacation leave, primarily due to his allergies. The veteran testified that he has difficulty digesting certain types of food, particularly animal fats. He also described his periodic episodes of rhinitis that occurred several times a year, primarily during the winter, spring, and fall. On an authorized audiological evaluation in May 1997, pure tone thresholds, in decibels, were as follows: HERTZ (CYCLES PER SECOND) 500 1000 2000 3000 4000 Right 20 15 15 30 80 Left 15 15 10 10 20 Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and of 96 percent in the left ear. A VA orthopedic examination was conducted in August 1997. The examiner noted the veteran's ankle complaints as set forth at his personal hearing. On examination, there was 5 degrees of dorsiflexion and 25 degrees of plantar flexion of each ankle, with 20 degrees of pronation and 10 degrees of supination. No neurovascular deficit was noted. The diagnosis was status post-chronic sprain of both ankles. The examiner commented that there was some limitation of motion with some weakness and fatigability of both ankles. It was stated that the findings were supported by objective evidence and were consistent with the reported history and pathology of the disability. The examiner noted that the functional ability of the ankle joints would be limited an additional 10 percent during flare-ups and when the joints were used repeatedly over a period of time. Also conducted in August 1997 was a VA ear, nose, and throat examination. The examiner noted the veteran's symptoms of nasal congestion, frontal headaches, malaise, and general myalgias, occurring in episodes of "weeks" duration, approximately 7 or 8 times per year. On examination, the nasal septum was mildly deviated to the right, but the remainder of the clinical findings regarding the nose and sinuses were normal. The listed diagnosis was status post- sinusitis, with no active sinusitis at that time. On gastrointestinal examination at that time, the examiner reported the veteran's complaints of chronic intermittent nausea, vomiting, diarrhea, and anorexia, associated with general malaise and myalgias, with 1 or 2 episodes per year of 4-6 weeks' duration. The veteran indicated that there was an increase in his symptoms with greasy foods, spicy foods, and caffeine. He also reported having a 10-20 pound weight loss during the episodes. The examiner's diagnoses included hiatus hernia, with reflux. The veteran failed to report for scheduled blood work, including a liver profile. On VA dental examination in September 1997, the examiner noted that the veteran had lost only one tooth, #4, that had been replaced by a three-unit fixed bridge. He indicated that the veteran had had excellent dental work, with multiple restorations, gold crowns, porcelain to gold crowns, and endodontic treatment. The veteran's oral hygiene was recorded as being very good. His remaining teeth and oral tissues were within normal limits. There was bilateral TMJ tenderness, noted to be due possibly to crunching habits. The examiner commented that the veteran's dental disability had no effect on his everyday activities. Another VA general medical examination was conducted in May 1998. Concerning his jaw, the veteran reported that he could not open it as much as he used to be able to do and that he would sometimes get swelling on the sides of his face. The examiner noted the veteran's long history of allergies to "just about everything." He indicated that the veteran's symptoms lasted year-round, but were worse in the winter. He was receiving monthly allergy shots. Regarding his hepatitis, the veteran stated that he had no vomiting or melena; he reported that the current treatment for the problem consisted of adjustment to his diet. He indicated that he noticed some fatigue and weakness and that he did not seem to have the stamina and strength that he used to have. His only complaint concerning his ankles was that they would sometimes swell in the morning. On examination, there was obvious swelling of both parotid glands and the submaxillary glands, as well as very limited motion of the jaw. The temporomandibular joints could be dislocated by the examiner, with a lot of pain. There was a lot of exudate in the nose. The membranes and turbinates were swollen and the left nostril was approximately 25 percent obstructed. No nasal polyps were observed. The abdomen was tympanitic and the liver was not enlarged. The examiner described full range of motion of the veteran's ankles. Palpation of the ankles was "perfectly normal" and there was normal heel and toe walking. The examiner stated that he could see no residual impairment due to any ankle injuries. X-rays of the sinuses and ankles were interpreted as being normal, as were x-rays of temporomandibular joints. The hepatitis B core antibody was reportedly reactive, but no other abnormal blood chemistry data were recorded. The diagnoses included TMJ syndrome, etiology unknown; parotid and submaxillary gland disorder, commonly known as Sjorgen's syndrome; allergic rhinitis with nasal obstruction about 25 percent on the left; nasal polyps not found; hepatitis B negative by laboratory test at that time; and sprained ankles, right and left, with no residuals. II. Analysis Service connection At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded; that is, the claims are not implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claims, as mandated by 38 U.S.C.A. § 5107(a). Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Each disabling condition shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1999). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Additionally, regulations provide that 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). ? Residuals of bilateral ankle injuries The veteran has stated that he sustained injuries to both of his ankles in an incident in 1978, requiring the use of crutches for 3-4 weeks. He testified that x-rays at the time did not reveal any fractures. However, the service medical records are completely negative for evidence of any ankle injuries at any time during the veteran's career. There is no evidence of any ankle complaints or pertinent abnormal clinical findings at any time during service, including at the time of the veteran's retirement examination, despite his statements that he has had continuing problems with his ankles ever since 1978, including that they occasionally swell and easily give way. Moreover, records of the veteran's private physician between 1992 and 1994 do not reflect any ankle complaints or abnormal clinical findings. Although a VA examiner in 1997 noted some limitation of ankle motion, weakness, and fatigability, no abnormal clinical findings regarding the veteran's ankles were noted on VA examinations in 1994 or 1998. In particular, the 1998 examiner stated that the examination was "perfectly normal" and that he could see no residuals of any ankle injuries. Although a VA examiner in January 1994 (within one year after the veteran's separation from service) listed a diagnosis of status post-traumatic arthritis of the ankles, the examiner did not report any abnormal clinical findings regarding either ankle and bilateral ankle x-rays were reportedly normal. In addition, that examiner specifically stated that there was no pathology noted on the examination. Moreover, no other examiner has diagnosed arthritis of either ankle. In the absence of any medical evidence of arthritis, as opposed to the mere listing of a diagnosis of arthritis, that the veteran has ever had arthritis of either ankle, the Board finds that service connection may not be presumed on the basis of the development of arthritis during the first year following the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Weighing all of the evidence, including the veteran's hearing testimony, the Board concludes that the preponderance of the evidence is against the conclusion that he now has any residuals of an injury to either ankle during service. 38 U.S.C.A. § 1110, 1137. Whether or not he now has intermittent ankle complaints that may not be apparent on every examination, the evidence does not show that any such complaints are attributable to any chronic ankle disorder that resulted from an injury or disease incurred in service. Inasmuch as the preponderance of the evidence is against the veteran's claim, the provisions of 38 U.S.C.A. § 5107(b) are not applicable. ? Left ear hearing loss Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385 (1995). The Board recognizes that the veteran may have been exposed to acoustic trauma during service in his activities during many years on the flight line. We also note that service connection has already been established for hearing loss in his right ear. However, as described above, the regulations set forth specific criteria for determining whether a hearing loss disability is present. In this case, there is no evidence that repeated audiometric tests during service (except on one isolated test in 1972, soon after the veteran's entrance onto active duty) or on two occasions subsequent to his retirement have demonstrated pure tone thresholds or speech discrimination scores indicative of left ear hearing loss that meet those specific criteria. Although he has testified that he has difficulty understanding people speaking to him, there simply is no evidence that he currently has a hearing impairment in his left ear that meets the criteria for service connection set forth at § 3.385. In the absence of such evidence, service connection for left ear hearing loss is not established. Inasmuch as the preponderance of the evidence is against the veteran's claim, the provisions of § 5107(b) are not applicable. Higher ratings In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Drosky v. Brown, 10 Vet. App. 251 (1997). The Board finds that the veteran's claim concerning this issue is well grounded. In addition, there is no indication that there are additional, unsecured records that would be helpful in this case. Therefore, the Board has no further duty to assist the veteran in developing his claim. 38 U.S.C.A. § 5107(b). Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, to include employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations should 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 (1999). Regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history. 38 C.F.R. §§ 4.1, 4.2. In evaluating the veteran's claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted the distinction between a claim for an increased rating for a service-connected disability and an appeal from the initial rating assigned for a disability upon service connection. Inasmuch as the ratings for the veteran's service-connected disabilities were the initial ratings assigned for the disabilities and were made effective from the date of receipt of the veteran's claim for service connection, the Board will evaluate the level of impairment due to each of the disabilities throughout the entire period, considering the possibility of staged ratings, as provided by the Court in Fenderson. ? Residuals of hepatitis Residuals of hepatitis, with marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy, warrant a 100 percent rating. A 60 percent evaluation is to be assigned when there is moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. For minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures, a 30 percent rating is appropriate. Demonstrable liver damage with mild gastrointestinal disturbance warrants a 10 percent evaluation. A noncompensable rating is to be assigned for healed, asymptomatic hepatitis. Code 7345. The record indicates that the veteran's hepatitis has resulted in little impairment since 1980. Although medical reports have documented occasional complaints of fatigue and malaise in recent years, examiners have generally attributed those symptoms to his rhinitis, rather than to residuals of his previous hepatitis. While the veteran has indicated that he has difficulty digesting certain foods, the record does not show that he has been advised by any physician to adhere to any dietary restrictions. Nor does the record reflect that any other therapeutic measures have been employed to treat symptoms related to his previous hepatitis. The Board notes the veteran's private physician statement in 1992 that he had "debilitating episodes of Gastrointestinal disturbances, Fatigue, and Anxiety associated with mild to moderate Liver Damage;" the medical evidence, however, including the examiner's own treatment records, does not corroborate any such episodes, although an August 1997 examiner recorded the veteran's report of 1-2 episodes per year, lasting 4-6 weeks, during which he has a 10-20 pound weight loss. The physicians' statements appear to have been based entirely on the veteran's own reported history and are not supported by any pertinent abnormal clinical or laboratory findings. Also, as noted above, there is no medical evidence of complaints, findings, or treatment for fatigue or anxiety that were attributed to residuals of the veteran's previous hepatitis. Further, although descriptions of the severity of the initial (or subsequent) liver damage that was caused by the hepatitis have varied, including as stated by the private physician in 1992, no blood test has shown any abnormal liver function in many years. The Board finds that the residuals of the veteran's hepatitis are manifested only by occasional mild episodes of gastrointestinal disturbance and that the criteria for a rating greater than the currently assigned 10 percent have not been met at any time since the effective date for the grant of service connection. Therefore, staged ratings for the residuals of the veteran's hepatitis are not appropriate. Fenderson. The Board concludes that a higher rating for residuals of hepatitis is not warranted at this time. Inasmuch as the preponderance of the evidence is against any higher rating, the provisions of § 5107(b) are not applicable. ? Allergic rhinitis Chronic atrophic rhinitis, with massive crusting and marked ozena and anosmia warrants a 50 percent rating. A 30 percent evaluation is for assignment with moderate crusting and ozena and atrophic changes. Where there is definite atrophy of intranasal structures and moderate secretions, a 10 percent rating is appropriate. Code 6501. (Effective prior to October 7, 1996.) Allergic or vasomotor rhinitis with polyps warrants a 30 percent rating. Without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, a 10 percent evaluation is to be assigned. Code 6522. (Effective October 7, 1996.) The record shows that the veteran has seasonal allergies that produce a number of symptoms, including nasal drainage and obstruction, headache, malaise, myalgias, and fatigue. Some examiners have noted a deviated nasal septum, although it is unclear whether that finding is related to his allergic rhinitis. Other examiners have reported some degree of nasal obstruction due to the rhinitis and consequent swelling of the nasal passages; the most recent examiner, in May 1998, indicated that the nasal membranes and turbinates were swollen and that the left nostril was 25 percent obstructed. The May 1998 examiner also stated that there was "a lot of exudate in the nose." No examiner has reported any atrophy of the nasal structures, anosmia, or ozena. It is clear that the symptoms of the veteran's allergic rhinitis are seasonal and do result in some degree of impairment. In addition, the record indicates that he takes prescription antihistamines and nasal sprays to alleviate his symptoms. Nevertheless, the Board finds that the functional impairment due to the disability, as described in and contemplated by the criteria in the rating schedule (in effect prior to and beginning October 7, 1996), is commensurate with a 10 percent rating, and no more. The evidence does not reflect a degree of impairment commensurate with a higher rating. The veteran's private physician did report in January 1995 that there was an "early nasal polyp." No other examiner before or since, however, including specialists, has noted any nasal polyps and, on VA examination in May 1998, the examiner specifically indicated that no nasal polyps were observed. The Board finds that the preponderance of the evidence is against a finding that the veteran currently has any nasal polyps related to his allergic rhinitis. Therefore, the Board finds that the criteria for an evaluation greater than the currently assigned 10 percent rating, under the criteria in effect prior to or beginning October 7, 1996, are not met. Inasmuch as the criteria for a higher evaluation have not been met at any time since the effective date for the grant of service connection, staged ratings for the veteran's allergic rhinitis are not appropriate. Fenderson. Moreover, because the preponderance of the evidence is against the veteran's claim, the provisions of § 5107(b) are not applicable. ? Right ear hearing loss Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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 audiometric tests in the frequencies of 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 11 auditory acuity levels 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, and the veteran does not have total deafness in both ears, the hearing of the non-service- connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 4.85, Diagnostic Code 6100. However, compensation is payable for total deafness in one ear as a result of service-connected disability and total deafness in the other ear as a result of non-service- connected disability as if both disabilities were service- connected, provided the non-service-connected disability is not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.383 (1999). First, as noted above, service connection has been established only for hearing loss in the right ear. Further, the clinical data do not show that the veteran is totally deaf in his left ear; accordingly, his hearing in that ear is considered to be normal (level I). In addition, pure tone and speech audiometry concerning the hearing in the veteran's left ear in 1993 and 1997 showed essentially identical results: the average pure tone threshold was 35 decibels and the speech discrimination score was 96 percent on each test. The audiometric data obtained since service correspond to level I hearing in the veteran's right ear. With level I hearing in his left (non-service-connected) ear also, § 4.85 requires assignment of a noncompensable rating for the veteran's hearing loss. Inasmuch as the criteria for a compensable evaluation have not been met at any time since the effective date for the grant of service connection, staged ratings for the veteran's right ear hearing loss are not appropriate. Fenderson. The Board notes that, effective in June 1999, VA revised the regulations pertaining to evaluating hearing loss disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that where a regulation changes during the course of a veteran's appeal, he is entitled to consideration of his claim under both regulations, with application of the version more favorable to the claim. In this case, insofar as they govern the appropriate ratings to be assigned for unilateral hearing loss, however, the revised criteria are essentially identical to those previously in effect. Moreover, the RO considered both versions of the regulations concerning evaluations for hearing loss. No different rating results from application of the two versions of the hearing loss regulations. Because the preponderance of the evidence is against the veteran's claim for a compensable rating for his right ear hearing loss, the provisions of § 5107(b) are not applicable. ? Teeth 4, 18, 19, 30, 31 For the loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity: Where the lost masticatory surface cannot be restored by suitable prosthesis: Loss of all teeth 40 percent Loss of all upper teeth 30 percent Loss of all lower teeth 30 percent All upper and lower posterior teeth missing 20 percent All upper and lower anterior teeth missing 20 percent All upper anterior teeth missing 10 percent All lower anterior teeth missing 10 percent All upper and lower teeth on one side missing 10 percent Where the loss of masticatory surface can be restored by suitable prosthesis 0 percent Note-These ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. Code 9913. Service connection has been granted for teeth 4, 18, 19, 30, and 31 and a noncompensable rating has been assigned. The records show that the veteran underwent root canal work on those teeth during service due to cracking. It is not clear from the record when tooth 4 was extracted, although the service records do not show that tooth as missing. The September 1997 VA dental examiner noted that the veteran's only lost tooth, number 4, had been replaced by a 3-unit bridge and that the veteran had undergone "excellent dental work," including multiple restorations, gold crowns, porcelain to gold crowns, and endodontic treatment. Because the masticatory surface has been restored for the service-connected teeth, the rating schedule mandates assignment of a noncompensable evaluation. Inasmuch as the criteria for a compensable evaluation were not met at any time since the effective date for the grant of service connection, staged ratings for the veteran's teeth are not appropriate. Fenderson. A compensable evaluation for the veteran's service-connected teeth is not warranted. The Board notes that the veteran's contentions regarding his mouth have largely concerned symptoms that have been attributed either to TMJ disorder or to his parotid glands, rather than to his service-connected teeth per se. A rating decision in June 1999 denied service connection for TMJ disorder and for a parotid gland disorder. To the extent that the veteran's complaints that are related to those conditions are separate and apart from manifestations of impairment due to the teeth themselves, they are not relevant to the issue of a higher rating for the service-connected teeth. In light of the fact that the preponderance of the evidence is against the veteran's claim for a higher rating for his service-connected teeth, the provisions of § 5107(b) are not applicable. ORDER Service connection for residuals of bilateral ankle injuries is denied. Service connection for left ear hearing loss is denied. A rating greater than 10 percent for residuals of hepatitis is denied. A rating greater than 10 percent for allergic rhinitis is denied. Compensable ratings for right ear hearing loss and teeth 4, 18, 19, 30, and 31 are denied. REMAND A rating decision in June 1999 denied service connection for a temporomandibular joint disorder. The Board finds that a statement by the veteran's accredited representative on VA Form 646, received in September 1999, expresses sufficient disagreement with the June 1999 rating decision in that regard as to be construed as a notice of disagreement, pursuant to 38 C.F.R. § 20.201 (1999). Accordingly, the RO must furnish the veteran and his representative with a statement of the case concerning that issue. 38 C.F.R. § 19.26 (1999). Therefore, this case, as to this issue, is REMANDED to the RO for the following additional action: The RO should furnish the veteran and his accredited representative with a statement of the case concerning the issue of service connection for a temporomandibular joint disorder. If, and only if, a timely substantive appeal is received, the RO should return the case to the Board for appellate consideration of that issue. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to provide the veteran with due process. 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 Veterans Appeals 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