Citation Nr: 0007903 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-15 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for fungus of the feet. 4. Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 5. Entitlement to an increased evaluation for the residuals of a shrapnel fragment wound to the left lower extremity, involving Muscle Group XI, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1968. This appeal arose from a May 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO). The denials of evaluations in excess of those assigned by the May 1998 decision was confirmed by a rating action issued in June 1998. The veteran and his representative were informed through an April 1999 supplemental statement of the case of the continued denial of the benefits sought. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). 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"), has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. The issue of entitlement to an increased evaluation for the service-connected PTSD will be subject to the attached remand. FINDINGS OF FACT 1. The veteran has not been shown by competent medical evidence to suffer from a bilateral hearing loss, tinnitus or fungus of the feet which can be related to his period of service. 2. The veteran's shrapnel fragment wound residuals to the left lower extremity are manifested by complaints of intermittent neuralgia and numbness around the scar, with objective evidence showing no functional loss due to pain; no atrophy, muscle herniation, adhesions or tendon damage; normal muscle strength; and no indication of pain, fatigability or weakness. CONCLUSIONS OF LAW 1. The veteran has not presented evidence of well grounded claims for service connection for a bilateral hearing loss, tinnitus and fungus of the feet. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1999). 2. The criteria for an evaluation in excess of 10 percent for the residuals of a shrapnel fragment wound to the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10, 4.40, 4.56, Code 5311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a bilateral hearing loss, tinnitus and fungus of the feet The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible. If he has not presented well grounded claims, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claims are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection for a hearing loss disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if a sensorineural- type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 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 1,000, 2,000, 3,000 or 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 1,000, 2,000, 3,000 or 4,000 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 (1999). FACTS Bilateral hearing loss The veteran's service medical records included a separation examination performed in April 1968, during which he complained of a bilateral hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 LEFT 5 10 15 15 The veteran was examined by VA in September 1968. He again reported a hearing loss and the clinical examination noted a slight hearing loss on the right. However, no audiological evaluation was conducted. A private examination dated October 2, 1998 noted a mild hearing loss, which was noted to be worse on the left. Tinnitus The veteran's service medical records do not contain any reference to complaints of or treatment for tinnitus. No mention was made of tinnitus during the April 1968 separation examination. Numerous post-service treatment records were submitted by the veteran. None of these show treatment for tinnitus. Fungus of the feet The veteran's service medical records do not contain any reference to complaints of or treatment for fungus of the feet. No mention was made of foot fungus during the April 1968 separation examination. Various post-service treatment records were submitted by the veteran. None of these show treatment for fungus of the feet. ANALYSIS Initially, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In regard to the claim for service connection for a hearing loss disability, it is noted that the veteran complained of a hearing loss at the time of his discharge from service. However, a review of the audiological evaluation conducted during the separation examination indicated that it did not show a hearing loss disability for VA purposes. Nor does the evidence submitted since his release from service establish the existence of such a disability. Therefore, it cannot be found that his claim is well grounded. The veteran has also claimed service connection for tinnitus and fungus of the feet. However, the evidence of record does not show that he currently suffers from either condition; thus, the existence of a current disability has not been demonstrated. Moreover, there is no indication that either condition was present in service. Given these facts, it cannot be argued that the claims are well grounded. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform that appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 , 465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995); cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). II. An increased evaluation for the residuals of a shrapnel fragment wound to the left lower extremity The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (1999). 38 C.F.R. Part 4, Diagnostic Code 5311 (Muscle Group XI) states that a 10 percent disability is warranted when there is a moderate injury. A 20 percent evaluation requires moderately severe injury residuals. This muscle affects propulsion and plantar flexion of the foot; stabilization of the arch; flexion of the toes; and flexion of the knee. A moderate disability of the muscles requires a through and through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragments. The objective findings include entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. A moderately severe muscle injury is the result of a through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. The objective findings include entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. There are indications on deep palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side. Tests of strength and endurance of muscle groups involved (compared with the sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(b) & (c) (1999). The veteran's service medical records indicated that he had suffered a shrapnel fragment wound to the left lower extremity in May 1967. He developed an infection, which healed by September 1967. He was awarded service connection for the residuals of this injury by a rating action issued in December 1968. VA examined the veteran in April 1998. He stated that his leg hurt every day and that he had 10 percent additional functional impairment during flare-ups. He indicated that he worked as a postal clerk and had to take a lot of breaks due to his leg pain. The objective examination found a 7 by 2.5 cm scar which was depressed 1 cm. There were no adhesions, nor was there any tendon, bone, joint or nerve damage. His muscle strength was good and there was no evidence of herniation. His muscle could move the affected joint through normal range of motion with sufficient comfort, endurance and strength to accomplish activities of daily living. There was no limitation by pain, easy fatigability or weakness. The diagnosis was shrapnel fragment wound left gastrocnemius with minimal functional loss and no loss of function due to pain. On June 26, 1998 a private physician examined the veteran and noted his complaints that, ever since the wound, he had had persistent pain around the wound site which seemed to be aggravated by prolonged walking or standing. He also complained of a numb spot over the lateral heel and of an electrical shooting sensation from the wound to the ankle upon light touching of the scar. The neurological evaluation noted the large defect of the left calf, with an old, well- healed scar. There was some dysthesia to light touch at the scar with decreased pinprick on the lateral aspect of the heel. The physician felt that he had post traumatic neuropathy with involvement of the tibial nerve and/or its sensory branches plus/minus a scar neuroma. The veteran was afforded another VA examination in February 1999. There was a 5 by 2 cm scar over the left gastrocnemius with 1 cm depression. There were no adhesions or tendon damage. There was very little tissue loss. Bone, joint or nerve damage was not detected. He displayed good muscle strength with no evidence of muscle herniation or loss of muscle function. There was no indication of pain, fatigability, or weakness. Range of motion of the left knee was from 0 to 128 degrees. An x-ray failed to show any retained metallic foreign bodies. The diagnosis was shrapnel fragment wound left gastrocnemius with no loss of function due to pain. VA also conducted a neurological evaluation in February 1999. He reported that he had chronic sensory loss in the left lower extremity with intermittent pain. The examination of the leg did not show any weakness at the foot or ankle, although he claimed that his left knee would give out on occasion. The affected area was inferior to the wound; the examiner noted that there were no major nerves in this distribution, only primarily cutaneous sensory nerves. There was no indication of muscle wasting or atrophy except in the direct area of the wound. He did appear to have numbness as well as intermittent neuralgia. The diagnosis was injury to the nerve, superficial containing of sensory branches of the left lower extremity. After a careful review of the evidence of record, it is found that entitlement to an evaluation in excess of 10 percent for the shrapnel fragment wound of the left lower extremity is not warranted. The objective evidence of record showed no indication on palpation of loss of deep fascia, muscle substance or normal firm resistance when compared to the sound side. On the contrary, the February 1999 VA examination specifically stated that there was very little tissue loss. There was also no indication of muscle wasting or atrophy, except in the direct area of the wound. The April 1998 VA examination had specifically noted that the involved muscle could move the joint through normal range of motion with sufficient endurance and strength to engage in activities of daily living. Both VA examinations noted that his muscle strength was good and that there was no evidence of fatigability, lack of endurance or weakness. Therefore, there is no positive evidence of functional impairment. While the evidence indicates that he does have some intermittent neuralgia and numbness over the lateral aspect of the heel, it is found that this disability, when coupled with the normal functioning of the left lower extremity, is not sufficient to find that his shrapnel fragment wound has resulted in moderately severe injury residuals. Therefore, it is found that entitlement to a 20 percent disability evaluation is not justified at this time. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected shrapnel fragment wound of the left lower extremity. ORDER Service connection for a bilateral hearing loss, tinnitus and fungus of the feet is denied. An increased evaluation for the service-connected shrapnel fragment wound of the left lower extremity is denied. REMAND The veteran has contended that his service-connected PSTD is more disabling than the current disability evaluation would suggest. He indicated that he is suffering from increased irritability and impulsivity, such that he fears that he will lose control. Therefore, he believes that an increased evaluation is warranted. VA last examined the veteran's PTSD in April 1998. Since that time, he has sought private treatment for his complaints. He has also alleged that his condition has gotten worse. However, the RO has made no attempt to conduct a further examination of his PTSD. Such an examination would be helpful in ascertaining the current degree of severity of his PTSD. Moreover, the veteran has indicated that he is receiving continuing treatment from his private physician. However, the record contains only records from July and August 1998. Before proceeding, the RO should determine whether any additional records are available for review. Finally, it is noted that the RO denied entitlement to service connection for arthritis in June 1999. In July 1999, the veteran submitted a notice of disagreement with this denial. He was not provided an appropriate statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999) (which stated that when an issue has been denied by the RO and the appellant has submitted a notice of disagreement, the Board cannot state that the issue is not in appellate status, but must remand the issue to the RO for the issuance of a statement of the case). Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he sign and return a consent form authorizing the release to VA of Dr. Cezayirli's treatment records. Once this consent form is returned, the RO should contact Cemil Cezayirli, M.D., Frank Ray Psychiatric Clinic, 860 Montclair Road, Suite 160, Birmingham, Alabama 35213 and request that he provide copies of the veteran's treatment records developed between September 1998 and the present. 2. Once the above-requested development has been completed and the records have been associated with the claims folder, the RO should afford the veteran a complete VA psychiatric examination by a qualified physician in order to fully evaluate the current nature and degree of severity of the service-connected PTSD. All indicated special studies deemed necessary should be accomplished. The examiner should comment upon which criteria best reflects the veteran's symptoms: 100 percent: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name; 70 percent: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; 50 percent: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; 30 percent: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) The examiner should also provide a Global Assessment of Functioning (GAF) Score. The claims folder must be made available to the examiner so that it may be reviewed in conjunction with the examination, and the examiner is asked to indicate in the examination report that the claims file has been reviewed. 3. The RO should then readjudicate the veteran's claim for an increased evaluation for the service-connected PTSD. If the decision remains adverse to the veteran, he and his representative should be provided an appropriate supplemental statement of the case and an opportunity to respond. 4. The RO should also provide the veteran and his representative with a statement of the case concerning the issue of entitlement to service connection for arthritis. See Manlincon, supra. He should also be provided information concerning his appellate rights in relation to this claim. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all tests reports, special studies or opinions requested, appropriate corrective action is to be implemented. 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. P. RUSSELL Member, Board of Veterans' Appeals