Citation Nr: 0004090 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-11 063 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES Entitlement to service connection for right ear hearing loss. Entitlement to a higher rating for arthritis of the cervical spine with shoulder pain, initially assigned a 10 percent evaluation, effective from May 1996. Entitlement to a higher rating for bilateral cataracts with lattice degeneration, and posterior vitreous detachment of the right eye, initially assigned a zero percent evaluation, effective from May 1996. Entitlement to a higher rating for fungal infection of the feet and right hand, initially assigned a zero percent evaluation, effective from May 1996. Entitlement to a higher rating for left ear hearing loss, initially assigned a zero percent evaluation, effective from May 1996. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from April 1970 to April 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a January 1997 RO rating decision that denied service connection for shoulder pain, right ear hearing loss, hypertension, and transient ischemic attack (TIA); granted service connection for arthritis of the cervical spine, bilateral cataracts, left ear hearing loss, and fungal infection of the feet and right hand, and assigned zero percent evaluations for each of these disabilities, effective from May 1996; and denied a compensable (10 percent) rating for compensation purposes based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). An April 1998 RO rating decision granted service connection for shoulder pain and evaluated this condition in conjunction with the arthritis of the cervical spine, and increased the evaluation for this condition from zero to 10 percent, effective from May 1996; and granted service connection for hypertension and TIA, and assigned a zero percent rating for this condition. Under the circumstances noted above, the issue of entitlement to a compensable (10 percent) rating for compensation purposes based on multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is moot, and the issues for service connection for shoulder pain, hypertension, and TIA are no longer for appellate consideration. The issue of entitlement to a higher rating for arthritis of the cervical spine with shoulder pain, initially assigned a 10 percent evaluation, effective from May 1996, is still a matter for appellate consideration because the maximum schedular rating has not been assigned for this condition. AB v. Brown, 6 Vet. App. 35 (1993). Hence, the Board has classified the issues as shown on the first page of this decision. The issues of entitlement to a higher rating for arthritis of the cervical spine with shoulder pain, initially assigned a 10 percent evaluation, effective from May 1996; and entitlement to a higher rating for a fungal infection of the feet and right hand, initially assigned a zero percent evaluation, effective from May 1996, will be considered in the remand section of this decision. FINDINGS OF FACT 1. The veteran does not have a right ear hearing loss disability for VA compensation purposes. 2. Audiometry of the veteran's left ear reveals an average puretone threshold of 24 dB and speech discrimination of 100 percent. 3. The bilateral eye condition is manifested primarily by posterior vitreous detachment of the right eye, and cataracts, lattice degeneration of the eyes with corrected visual acuity of 20/25 in the right eye and 20/30 in the left eye. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for right ear hearing loss has no legal merit. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1999). 2. The criteria for a higher (compensable) initial rating for left ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Tables VI and VII (1999). 3. The criteria for a higher rating for bilateral cataracts with lattice degeneration, and posterior vitreous detachment of the right eye, initially assigned a zero percent evaluation, effective from May 1996, are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.75, 4.84a, Codes 6011, 6027, 6079 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Right Ear Hearing Loss; Higher Initial Rating for Left Ear Hearing Loss In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). On an authorized VA audiological evaluation in October 1996, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 10 LEFT 10 10 35 40 Speech audiometry revealed speech recognition ability of 100 percent in each ear. The veteran testified at a hearing in May 1997. His testimony was to the effect that he didn't know whether he had right or left ear hearing loss, and that he wanted to continue his appeal for service connection for right ear hearing loss. He had not noted any change in his hearing acuity. The report of the veteran's VA audiometric examination in October 1996 shows that he does not meet the criteria of 38 C.F.R. § 3.385 for service connection for right ear hearing loss. Therefore, service connection for this condition is prohibited. The claim for service connection for right ear hearing loss has no legal merit, and it is denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). With respect to the appeal for a higher rating, the Board has considered the above evidence of record with due regard to the veteran's contentions and the applicable laws and regulations. Disability evaluations are designed to measure the average impairment in earning capacity expected in civilian occupations. 38 U.S.C.A. § 1155. These evaluations are derived by comparing the current objective findings to the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule provides for evaluation of hearing impairment on the basis of speech audiometry examinations, using speech discrimination tests, along with pure tone audiometry testing. There are tables set forth which provide for numeric designations and result in the assignment of disability ratings. See 38 C.F.R. § 4.85 and Tables VI and VII following § 4.87. When hearing loss is service-connected in only one ear, the other ear is regarded as normal unless both ears are deaf. 38 C.F.R. § 4.85(f). In this case, with discrimination of 100 percent and an average puretone threshold of 24 dB, the left ear hearing loss is designated level I under Table VI, and rated 0 percent under Table VII, as the right ear is also designated level I. A higher initial rating is therefore denied. The portion of the rating schedule pertaining to ears was amended effective June 10, 1999. 64 Fed. Reg. 25202. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the appellant applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, none of the changes affect the rating of the veteran's service-connected left ear hearing loss. II. Entitlement to a Higher Rating for Bilateral Cataracts with Lattice Degeneration and Posterior Vitreous Detachment of the Right Eye, Initially Assigned a 10 Percent Evaluation, Effective from May 1996. A. Factual Background The veteran underwent a VA eye examination in October 1996. His best corrected visual acuity at distance was 20/20 in the right eye and 20/25-2 in the left eye. The intraocular pressure was 16 mms. of mercury in each eye. Nuclear sclerotic cataract was seen in each eye, trace in the right eye, and Grade I+ in the left eye. Dilated fundus evaluation revealed a normal macula, vessel, and disc in both eyes. The cup to disc ratio was approximately .30 in both eyes. Lattice degeneration was seen in the superior 1/2 of each retina without breaks. The assessments were nuclear sclerotic cataract, greater in the left eye than the right eye; and lattice degeneration of both eyes. The veteran underwent an eye evaluation at a VA medical facility in April 1997. He complained of a film across the vision of the right eye that resolved with manual pressure, and of floaters. The corrected visual acuity of the right eye was 20/25-2 and the corrected visual acuity of the left eye was 20/30-2. It was noted that the veteran had lattice degeneration of both eyes and posterior vitreous detachment of the right eye. The assessments were refractive error, and posterior vitreous detachment of the right eye. The veteran testified at a hearing in May 1997. His testimony was to the effect that his bilateral eye disability was more severe than currently rated. B. Legal Analysis The veteran's claim for a higher rating for his bilateral eye condition is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, 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. Unilateral or bilateral centrally located scars, atrophy or irregularities of the retina that result in an irregular, duplicated, enlarged or diminished image warrant a 10 percent evaluation. 38 C.F.R. § 4.84a, Code 6011. A preoperative traumatic cataract is evaluated on the basis of the resulting impairment of vision. A postoperative traumatic cataract is evaluated on the basis of the resulting impairment of vision and aphakia. 38 C.F.R. § 4.84a, Code 6027. Corrected visual acuity of 20/40 (6/12) in one eye warrants a noncompensable evaluation when corrected visual acuity in the other eye is also 20/40 (6/12). 38 C.F.R. § 4.84a, Code 6079. A compensable evaluation requires worse corrected visual acuity as noted in diagnostic codes 6063-6078. The best distant vision obtainable after best correction by glasses will be the basis of rating. 38 C.F.R. § 4.75. The report of the veteran's VA eye examination in 1996 shows corrected visual acuity at distance of 20/20 in the right eye and 20/25-2 in the left eye, and cataracts, and lattice generation of the eyes. At the April 1997 VA eye evaluation his corrected visual acuity (with a new prescription) in the right eye was 20/25-2 and the corrected visual acuity in the left eye was 20/30-2, and posterior vitreous detachment of the right eye and lattice generation of the eyes were found. The evidence indicates that the veteran's distant visual acuity is better than 20/40 in each eye. Hence, a compensable evaluation for the veteran's bilateral eye condition is not warranted based on impairment of visual acuity. The Board has also considered the veteran's entitlement to a compensable evaluation for his bilateral eye condition under the provisions of diagnostic code 6011 and recognizes that he complained of floaters at the April 1997 VA eye evaluation, but the evidence does not show that his eye conditions produce irregular, duplicated, enlarged or diminished images. The Board notes the veteran's testimony to the effect that his bilateral eye condition is more severe than currently evaluated, but this lay evidence is not supported by the objective medical evidence. After consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim for a higher rating for the bilateral eye condition. Nor does the evidence show manifestations of the bilateral eye disorder warranting a higher rating for this condition for a specific period or a "staged rating" at any time since the effective date of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Since the preponderance of the evidence is against the claim for a higher rating for the bilateral eye disorder, 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 (1990). ORDER Service connection for right ear hearing loss is denied. A higher (compensable) initial rating for left ear hearing loss is denied. A higher rating for bilateral cataracts with lattice degeneration, and posterior vitreous detachment of the right eye, initially evaluated as zero percent disabling, effective from May 1996, is denied. REMAND At the May 1997 hearing, the veteran testified to the effect that he had pain associated with the arthritis of the cervical spine with shoulder pain and that this condition had worsened since his last VA medical examination. VA has the duty to provide the veteran with an examination to obtain sufficient clinical findings to determine the severity of the claim disability/ies. DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court) held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 (1999) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1999). The Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibited weakened movement, excess fatigability or incoordination; if feasible, these determinations were to be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. At the May 1997 hearing, the veteran testified to the effect that his skin condition of the feet and right hand had worsened and that he had received treatment at the Walter Reed Army Hospital. Under the circumstances, the reports of his recent treatment should be obtained and he should be schedule for a VA skin examination in order to determine the current severity of his fungus infection of the feet and hands. Weggenmann v. Brown, 5 Vet. App. 281 (1993); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should obtain reports of the veteran's treatment at the Walter Reed Army Hospital since October 1996. 2. The veteran should be scheduled for a VA medical examination to determine the severity of his arthritis of the cervical spine with shoulder pain. The examiner should provide an opinion on the severity of the arthritis of the cervical spine with shoulder pain, including any functional impairment caused by pain or weakness. Specifically, the examiner should express an opinion as to whether or not there is severe painful motion or weakness. The examiner should be asked whether pain or weakness significantly limits functional ability during flare- ups or when the neck is used repeatedly over a period of time. The examiner should also be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range- of-motion loss due to any weakened movement, excess fatigability or incoordination. The examiner should support the opinions by discussing medical principles as applied to specific medical evidence in this case. In order to assist the examiner in providing the requested information, the claims folder must be made available to the physician and reviewed prior to the examination. 3. The veteran should be scheduled for a VA skin examination to determine the severity of his fungal infection of the feet and hands. All indicates studies should be performed and all clinical findings reported in detail. The examiner should express an opinion as to the severity of the fungal infection of the feet and hands. In order to assist the examiner in providing the requested information, the claims folder must be made available to him or her and reviewed prior to the examination. 4. After the above development, the RO should review the claims for a higher rating for arthritis of the cervical spine with shoulder pain, initially assigned a 10 percent evaluation, effective from May 1996; and a higher rating for a fungal infection of the feet and right hand, initially assigned a zero percent evaluation, effective from May 1996. 5. If action remains adverse to the veteran, he and his representative should be sent an appropriate supplemental statement of the case. They should be afforded an opportunity to respond before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. J. E Day Member, Board of Veterans' Appeals