BVA9508337 DOCKET NO. 93-12 933 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss and tinnitus. 2. Entitlement to an increased rating for the residuals of frozen feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from January 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO) which confirmed and continued the denial of benefits sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran alleges that he sustained permanent damage to his hearing, including tinnitus, when his tank ran over a mine in service. He also contends, in essence, that the service- connected residuals of frozen feet are more severely disabling than his current evaluation reflects. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for bilateral hearing loss and tinnitus, but that the preponderance of the evidence is against an increased rating for the residuals of frozen feet. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran had fire-related service and no service medical records are available. 3. The veteran was exposed to accoustic trauma during service and has submitted credible personal and lay statements attesting to the incurrence of a hearing disability while in service. 4. The veteran's residuals of frozen feet are manifested by bilateral pitting edema, and mild distal symmetrical sensory peripheral neuropathy. CONCLUSIONS OF LAW 1. Bilateral hearing loss and tinnitus were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1994). 2. The schedular criteria for an evaluation in excess of 10 percent for the residuals of frozen feet have not been satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.104, Diagnostic Code 7122 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral hearing loss and tinnitus In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. When a chronic disease is shown during service subsequent manifestations of the same disease are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The veteran contends that he sustained hearing loss and tinnitus in service as the result of an explosion when a tank that he was driving drove over a mine. He maintains that the resulting concussion caused bilateral defective hearing and tinnitus from which he continues to suffer. In addition, the veteran has indicated that his service as a tank driver itself involved extensive exposure to acoustic trauma, including the firing of the tank's guns. On VA examination in May 1991, the veteran complained of experiencing tinnitus and impaired hearing since his service that had progressively worsened. On authorized audiological evaluation conducted at that time, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 10 10 35 40 LEFT N/A 10 20 40 65 Speech audiometry revealed speech recognition ability of 96 percent in each ear. The veteran was assessed as having mild sensorineural hearing loss in the right ear, and mild to moderately severe sensorineural hearing loss in his left ear, as well as constant bilateral tinnitus. On November 25, 1994, the VA published an amended 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 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. See 59 Fed. Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385). See also Heuer v. Brown, No. 93-992, slip op. at 8 (U.S. Vet. App. Feb. 7, 1995). The VA is required to apply a regulation adopted during the pendency of a case when the regulation is more favorable to a claimant, unless the Secretary has specified to the contrary. Id.; West v. Brown, 7 Vet.App. 70, 76 (1994). The Secretary has not so specified with respect to the amended § 3.385. The veteran has shown that he presently suffers from bilateral hearing loss, pursuant to the amended § 3.385, and tinnitus. The issue, then, is whether this disability is related to any incident of service. The National Personnel Records Center has reported that the veteran had fire-related service, and that no service medical records are available. A request for medical records from the Surgeon General's Office was similarly unavailing. The veteran has provided some records of his stay at an Army hospital during service, which fail to reference any hearing complaints or treatment. The RO was able to obtain copies of Daily Sick Reports, which indicated only that the veteran was receiving unspecified medical treatment during February 1945 as a non-battle casualty for a problem that began on February 6, 1945. A determination as to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). Where, as here, a veteran's service medical records are presumed destroyed, the Board has a heightened obligation to consider carefully the benefit-of-the-doubt rule. See 38 C.F.R. § 3.102. See also Allin v. Brown, 6 Vet.App. 207, 214 (1994); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). That doctrine requires that where there "is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of he matter, the benefit of the doubt in resolving each issue shall be given to the claimant." See 38 U.S.C.A. § 5107(b); Ashley v. Brown, 6 Vet.App. 52, 59 (1993). The veteran has reported that he received treatment in service for hearing loss and tinnitus. Although the veteran's reports regarding the incurrence of his injuries have varied in the details and dates, the Board notes that over 45 years have elapsed from the date of the veteran's original injury, which he has indicated was sometime during early 1945. It is noted that the veteran's Report of Separation indicates that he received a Purple Heart for injuries sustained in January 1945, and that he served as a tank driver. In addition to his own reports, the veteran has submitted a statement from [redacted], who served as a member of the same tank crew. Mr. [redacted] has essentially confirmed the veteran's report of having sustained facial injuries and suffered hearing difficulty after the tank ran over a mine that detonated. The veteran has reported that he had received treatment for his hearing complaints, including being given a hearing aid which he was unable to use, while in service. He has reported experiencing essentially continual hearing problems, including tinnitus, since service, which have worsened in recent years. Satisfactory lay or other evidence of an injury or disease incurred 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 incurrence or aggravation. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.304(d); See Godwin v. Derwinski, 1 Vet.App. 419, 426 (1991). The veteran's report of incurring hearing disability, including tinnitus, during combat has been corroborated by an eyewitness and fellow soldier, [redacted]. Moreover, the veteran's claim of exposure to accoustic trauma in service is consistent with the veteran's combat service and military occupational specialty as a tank driver. The veteran is in receipt of a Purple Heart due to injuries sustained during early 1945. The Board finds the statements of the veteran and Mr. [redacted] to be credible and not contradicted by any other evidence of record. The Board recognizes that the veteran has offered no evidence of intercurrent treatment since service; however, the Board finds that the evidence discussed above raises, at least, a reasonable doubt as to the origin of the veteran's hearing loss and tinnitus. In light of the totality of the evidence, and in according the veteran every benefit of the doubt, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Residuals of frozen feet By rating action of January l992, the veteran was granted service connection for the residuals of frozen feet evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7122. That section provides that a 10 percent evaluation is warranted for the residuals of frozen feet with mild symptoms and chilblains, either unilaterally or bilaterally. In order to warrant an increased rating to 20 percent, the evidence would have to demonstrate persistent moderate swelling, tenderness, and redness unilaterally. A 30 percent rating is warranted for such symptoms bilaterally or for unilateral evidence of loss of toes or part of the foot with persistent severe symptoms, and a 50 percent rating for the latter criteria evidenced bilaterally. VA outpatient treatment records indicate that the veteran underwent a podiatry consultation in October 1988. He indicated that he had frostbite of the feet in 1945, and a laceration of the left foot in 1947. He complained of marked burning and pain in his feet. Scaling, discoloration, and painful calluses were noted. The soles of the veteran's feet were erythematous and scaly with multiple fissures. Mild non-pitting edema was noted bilaterally. He was assessed with onychomycosis, arteriosclerosis obliterans, tinea pedis, and post-traumatic scarring of the left foot. In January 1989 the veteran was observed to have scaling, erythematous plantar skin on his feet, with bilateral edema and pitting; he was assessed with onychomycosis and tinea pedis. The veteran received podiatry care in June 1989 for complaints of aching feet that he related to frostbite sustained in 1945. The veteran reported that he experienced non-radiating pain after ambulating short distances, as well as sensory changes at night. The examiner observed the veteran's feet to be warm, but that they became cyanotic and cold after sitting, and that they returned to normal color after ambulating. The assessment was of possible vasospastic disorder secondary to frostbite. At the time of a vascular surgery consultation in August 1991, the veteran complained of numbness, pain, and swelling in his feet which kept him awake at night. Bilateral pitting edema was observed at his ankles, as well as brisk capillary refill. He was assessed as status post cold injury to feet, with no evidence of vascular disease. In October 1991, the veteran underwent a neurological consultation for his podiatry complaints. On examination, the veteran's peripheral pulses in his feet were palpable, and erythema of his distal toe was noted. There was a severe loss of vibration sensation at his left ankle, and moderate loss on his right. The clinical assessment was distal symmetric sensory peripheral neuropathy, most likely from frostbite, of a mild degree. M.R. Khayali, M.D., submitted a report of an electrodiagnostic study dated in October 1992, in which he noted the veteran's complaints of feelings of numbness, burning, aching and some pain in both distal lower extremities. Nerve conduction studies revealed abnormal findings that were consistent with a moderate degree of primarily axonal type of peripheral polyneuropathy, with an apparent superimposed S-1 radiculopathy in the left lower extremity. The veteran did not suffer a loss of any part of his feet due to the frostbite reported in service. He consistently has reported experiencing sensory changes and pain in his feet. He has been noted to have mild bilateral pitting edema, as well as some skin color changes. On recent consultations, no evidence of vascular deficiency was observed, and neurological examination determined that mild sensory peripheral neuropathy of the veteran's feet was "most likely" due to frostbite. While the veteran has reported that he is unable to obtain part-time work to supplement his income due to his service-connected foot condition, his medical records indicate that he suffers from various nonservice- connected podiatry conditions, including S-1 radiculopathy, that adversely affect him. However, no examiner has found that the veteran's residuals of frozen feet are of greater than mild severity or would result in industrial impairment. In light of the examiner's findings of mild symptomatology that could reasonably be associated with the history of frozen feet provided by the veteran, the Board concludes that the veteran's current 10 percent evaluation is appropriate, and that an increased evaluation is not warranted. In this respect, it is noted that the veteran's current evaluation contemplates compensation for pain. See 38 C.F.R. §§ 4.40. As the evidence is not in equipoise, there is no benefit of the doubt to accord the veteran. See 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41. The Board also finds that the manifestations of the veteran's residuals of frozen feet are not so exceptional or unusual so as to warrant an evaluation in excess of 10 percent on an extra-schedular basis. For example, it has not been shown that the condition has caused marked interference with employment or has necessitated frequent periods of hospitalization. See 38 C.F.R. § 3.321(b)(1). ORDER Service connection for bilateral hearing loss and tinnitus is granted. An increased rating for the residuals of frozen feet is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.