Citation Nr: 0002429 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-19 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether the August 9, 1994, rating decision, which denied service connection for vertigo, was clearly and unmistakably erroneous. 2. Entitlement to service connection for Meniere's disease. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 4. Entitlement to an increased evaluation for bilateral hearing loss disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from June 1948 to August 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from August 1996, October 1996, and January 1998 rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In the August 1996 rating decision, the RO continued the noncompensable evaluation for bilateral hearing loss disability. In the October 1996 rating decision, the RO denied reopening the claim for service connection for tinnitus. In the January 1998 rating decision, the RO granted a 10 percent evaluation for bilateral hearing loss disability. The RO also denied service connection for Meniere's disease and determined that the August 9, 1994, rating decision, which denied service connection for vertigo was not clearly and unmistakably erroneous. Review of the record reveals that the RO did not expressly consider referral of the 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) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (the Court) has 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 raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where 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). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDINGS OF FACT 1. The August 1994 rating decision, which denied service connection for vertigo was supportable. 2. Competent evidence of a nexus between the diagnosis of Meniere's disease and service or manifestations of such to a compensable degree within one year following service is not of record. 3. Service connection for tinnitus was denied by the RO in a March 1994 rating decision. The appellant did not appeal that decision. 4. Evidence submitted by the appellant since the March 1994 rating decision, which denied service connection for tinnitus, is cumulative and redundant. 5. Bilateral hearing loss disability is currently manifested by an average pure tone threshold of 60 decibels on the right and 65 decibels on the left. Discrimination ability is 86 percent correct on the right and 84 percent correct on the left. CONCLUSIONS OF LAW 1. The August 1994 rating decision, which denied service connection for vertigo, did not contain clear and unmistakable error. 38 C.F.R. § 3.105(a) (1999). 2. The claim for service connection for Meniere's disease is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The March 1994 rating decision, which denied service connection for tinnitus, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1999). 4. New and material evidence has not been submitted to reopen a claim for service connection for tinnitus. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 5. Bilateral hearing loss disability is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Part 4, Diagnostic Code 6101 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Clear and unmistakable error The appellant has asserted that clear and unmistakable error exists in the August 1994, rating decision in that the RO did not grant service connection for vertigo. He states that because the RO conceded that the service medical records associated dizziness with the appellant's service-connected duodenal ulcer that service connection should be granted for such since a service-connected disability is causing his dizziness. Under the provisions of 38 C.F.R. § 3.105(a) (1999), an RO rating decision may be reversed or amended if that adjudication is clearly and unmistakably erroneous. Otherwise prior decisions are final. 38 U.S.C.A. § 7105 (West 1991). The Court has defined clear and unmistakable error as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is an error that is "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). Further, "[a] determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior [RO decision]." Id. at 314. Additionally, the Court stated: A claim of [clear and unmistakable error] is based upon an assertion that there was an incorrect application of the law or fact as it existed at the time of the disputed adjudication. [Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc).] Since an analysis of whether [clear and unmistakable error] has been committed may only proceed on the record, id., evidence that was not part of the record at the time of the prior determination may not form the basis of a finding that there was an act of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994) (emphasis in original). The Court has stated that, "It must always be remembered that clear and unmistakable error is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In the January 1998 decision, the hearing officer conceded that there was error in the August 1994 rating decision, but that it was harmless error because it would not have changed the outcome of the decision. He stated that the service medical records established that dizziness during service had been associated with ulcer disease and that the appellant was service connected for such. He added that the symptom of dizziness was temporary. Although there was error in the rating decision, the error did not give rise to reversible error. Stated differently, the ultimate decision of the regional office, a denial, was supportable. As noted by the hearing officer, the initial rating decision did not correctly identify all the positive evidence in the case, including the veteran's inservice complaints. However, service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. Although there were inservice complaints, a chronic vertigo disability was not identified during service or at time of separation from service. More importantly, at the time of the rating decision, there was no competent evidence of a chronic post service vertigo disability or competent evidence that linked a current vertigo disability to the veteran's period of service. At the time of the rating decision there was a remarkable absence of continuity of symptomatology. Although the rating decision failed to fully address the evidence, that failure was harmless because decisions of the Court would have dictated a denial regardless of the failure. Stated differently, the veteran's initial claim for service connection was not well grounded and a denial of service connection under such circumstances is not clearly and unmistakably erroneous. II. Service connection The appellant claims that he has Meniere's disease, which he has had since service and that service connection is warranted for such. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection for an organic disease of the nervous system may be granted if manifest to a compensable degree within one year of separation from service. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In making a claim for service connection, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires medical evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). With a "chronic disease," such as an organic disease of the nervous system, service connection may be warranted when the disease is manifested to a compensable degree within one year following service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (1999). Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. at 93. The appellant has not claimed that Meniere's disease arose under combat situation. Thus, entitlement to application of 38 U.S.C.A. § 1154(b) is not warranted. Service medical records are silent for a diagnosis of Meniere's disease. Additionally, there is no evidence of manifestations to a compensable degree of an organic disease of the nervous system within one year following service. The appellant underwent a VA psychiatric evaluation in November 1993. The appellant reported having an acute episode of vertigo with nausea and vomiting in March 1993 and having had five attacks of these symptoms subsequently. The appellant reported that this disorder had not been given a name, but that he took medication for it. The VA examiner entered a diagnosis of Meniere's disease in Axis III. In a June 1994 Social Security Administration disability award, the Administrative Law Judge stated that the appellant had been diagnosed with Meniere's disease and included it as part of the appellant's disability claim in granting benefits. The Board notes that the medical records used by the Social Security Administration in granting the disability award are in the claims file. The appellant testified at an October 1997 RO hearing. He stated that he had Meniere's disease, which he felt was related to service. The appellant underwent a VA examination in November 1997. There, the VA examiner stated that the appellant's symptoms were "absolutely not Meniere's disease." In an April 1999 Board hearing, the appellant asserted that he had Meniere's disease, which had started in service. At the Board hearing, this Board Member allowed the appellant 75 days to submit additional evidence. This Board Member informed the appellant that he was looking for evidence to establish that the appellant had the disorder and that he had it in service or soon after service. No evidence was received by the appellant or his representative following the Board hearing. The Board notes that there is a conflict in the medical evidence between the November 1993 psychiatric evaluation report wherein the VA examiner entered a diagnosis of Meniere's disease and the November 1997 examination report wherein the VA examiner stated that the appellant did not have Meniere's disease. When determining whether a claim is well grounded, the Board must accept the credibility of the evidence, see Justus v. Principi, 3 Vet. App. 510 (1992), and thus it is conceded that the appellant has a current diagnosis of Meniere's disease for determining whether the claim is well grounded. After having reviewed the evidence of record, the Board finds that the claim for service connection for Meniere's disease is not well grounded. The appellant has alleged that he had symptoms of Meniere's disease in service, which he is not competent to state. Although he has brought forth a diagnosis of Meniere's disease in a November 1993 VA psychiatric evaluation report, no medical professional has related the diagnosis of Meniere's disease to service or stated that the appellant had manifestations of such to a compensable degree within one year following service. See Caluza, supra. In fact, it must be noted that at the time of the November 1993 evaluation, the appellant reported having had an acute episode of vertigo with nausea and vomiting in March 1993, as opposed to relating such symptoms to service. Regardless, the VA examiner did not relate the diagnosis of Meniere's disease to the appellant's service. Although the appellant, his spouse, and his representative, have stated that the appellant has Meniere's disease, which they relate to the appellant's service, they are lay persons and it has not been shown that any of them possess the requisite knowledge of medical principles that would permit them to render an opinion regarding matters involving medical causation or diagnosis. See Espiritu, 4 Vet. App. at 494; see also Edenfield v. Brown, 8 Vet. App. 384, 388 (1995) (en banc) ("[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well-grounded claim requirement of section 5107(a)"). Thus, the appellant has failed to submit competent medical evidence of a nexus between the current diagnosis of Meniere's disease and a disease or injury in service or to manifestations to a compensable degree within one year following service, and thus the claim is not well grounded. See Caluza, supra. Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim when it is determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, VA fulfilled its obligation under section 5103(a) by issuing a statement of the case in August 1998. The RO specifically stated that the appellant had not brought forth evidence of a current diagnosis of Meniere's disease. This Board Member informed the appellant of the need for him to submit evidence that Meniere's disease was incurred in service or soon after service and allowed him 75 days to submit such evidence. No evidence was submitted following the April 1999 hearing. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration); Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's duty is just what it states, a duty to assist, not a duty to prove a claim). In the alternative that the claim is well grounded, the Board finds that the preponderance of the evidence is against a finding that the appellant has Meniere's disease. The only diagnosis of Meniere's disease shown in the records was entered in Axis III during a VA psychiatric evaluation. In that evaluation report, the VA examiner did not enter any clinical findings. Against this background, there is a November 1997 VA examination report, wherein the VA examiner examined the appellant and entered clinical findings. The appellant reported ocean roaring in his ears, dizziness, imbalance, and weakness. Based on his examination of the appellant, the VA examiner determined that the appellant's symptoms were "absolutely not Meniere's disease." The VA examiner further stated that the appellant's balance problems were not otogenic. The Board finds that the November 1997 VA examination has more probative value than the November 1993 VA psychiatric evaluation, as it is clearly a more thorough physical examination. Again, the VA examiner in the November 1993 evaluation report, was examining the appellant for a psychiatric disorder. He did not enter any clinical findings which would indicate that a physical examination was conducted. He made an impression of Meniere's disease under Axis III of a psychiatric diagnosis and did not support the diagnosis with clinical findings. In the November 1997 examination report, the VA examiner gave the appellant a thorough physical examination and determined that the appellant did not have Meniere's disease. For these reasons, the Board finds that the November 1997 examination report is more probative as to whether the appellant has Meniere's disease than the November 1993 psychiatric evaluation report. The Board notes that the appellant's representative asserted that the Administrative Law Judge had entered a diagnosis of Meniere's disease in his decision granting Social Security Administration benefits, which established a diagnosis of Meniere's disease. There is nothing in the record which would indicate that the Administrative Law Judge is competent to enter a medical diagnosis, and thus his stating that the appellant has Meniere's disease in the Social Security Administration award letter cannot establish a current diagnosis of such. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu, 4 Vet. App. at 494. Based on the Board's weighing of the evidence, the preponderance of the evidence is against a finding that the appellant has a diagnosis of Meniere's disease, and there is no doubt to be resolved. III. New and material The appellant claims that service connection for tinnitus should be granted because he began having problems with tinnitus in service, and that it has continued since that time to the present. Service connection for tinnitus was denied by the RO in a March 1994 rating decision. The evidence of record at that time consisted of the appellant's application, service medical records, and VA examination reports. Service medical records reveal that the appellant was in an automobile accident in May 1963 and sustained a brain concussion. The service medical records do not reveal any complaints of or a diagnosis of tinnitus. The appellant underwent a VA audiological evaluation in January 1969. No complaints of or a diagnosis of tinnitus was entered. The appellant underwent a VA audiological evaluation in November 1993. The appellant reported tinnitus and that it had its onset around 1975. In the March 1994 rating decision, the RO stated that service connection was denied for tinnitus because the service medical records were negative for complaint of or treatment for tinnitus and that there was no evidence to show that tinnitus was the result of head injury, concussion, or significant acoustic trauma sustained in military service. The appellant was notified of the decision and of his appellate rights in a March 29, 1994, letter, and he did not appeal the decision. That decision is final. A claim may be reopened by submitting new and material evidence. Under section 3.156 of the Code of Federal Regulations, when presented with a claim to reopen a previously finally denied claim, VA must determine if new and material evidence has been submitted. 38 C.F.R. § 3.156 (1999). New and material evidence is defined as follows: [E]vidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Id. at (a). Therefore, in this case, the Board must determine if new and material evidence has been submitted since the March 1994 rating decision. The Court has held that when determining whether the evidence is new and material, VA must conduct a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc)); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). First, VA must determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Id. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Evidence submitted or associated with the claims file in relation to service connection for tinnitus consisted of the appellant's contentions and testimony, VA medical records, and private medical records. The evidence establishes a diagnosis of tinnitus. In the appellant's notice of disagreement, received in January 1997, he stated that he sustained trauma to his head during service, which he asserted was the cause of his tinnitus. He stated that he had ringing in the ears at that time. At an October 1997 RO hearing, the appellant stated that he had had tinnitus for 35 years. He stated that it began in 1965 or 1966 and that he was treated for it at that time. He stated that it was a howling wind noise, which was constant. In a VA Form 21- 4138, Statement in Support of Claim, received in July 1998, the appellant stated that he did not know what tinnitus was while in service, so he could not articulate that he had it. At an April 1999 Board hearing, the appellant reiterated that he had ringing in the ears in service, but did not know that it was called tinnitus. The appellant testified that he sought treatment for tinnitus immediately after service. This Board Member informed the appellant that he would leave the file open for 75 days in order for the appellant to submit the records of treatment immediately after service for tinnitus. The first part of the test is for VA to determine if the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a). The Board has determined that the appellant has not presented evidence which is so significant that it must be considered in order to fairly decide the merits of the claim. See id. The reasons for this determination are explained below. Although the VA medical records and private medical record were not of record at the time of the March 1994 rating decision, it is cumulative of evidence that was of record at that time. The evidence at the time of the March 1994 rating decision revealed that the appellant had a current diagnosis of tinnitus and had sustained a head injury in service. The VA medical records and the private medical records submitted since the March 1994 rating decision establish the same facts. Therefore, the Board finds that the VA medical records and the private medical records do not constitute new and material evidence. See 38 C.F.R. § 3.156(a). Additionally, the Board finds that the appellant's contentions and testimony are not new and material. It must be noted that at the time of the March 1994 rating decision, the appellant had undergone a VA audiological evaluation in November 1993. There, the reported that tinnitus had its onset around 1975. He reiterated that same onset year at the time of the June 1996 VA audiological evaluation. However, he later changed his story to incurring tinnitus while in service both from noise exposure and from the head injury he sustained in May 1963. He added that he did not know what tinnitus was while in service so that he could not articulate that he had it. He testified before this Board Member that he had been treated immediately after service for tinnitus. This Board Member left the file open for 75 days to allow the appellant to submit those treatment records. No records were received from the appellant. The Board finds that the appellant statements and testimony that he had tinnitus while in service and that it has been constant since that time cannot constitute new and material evidence. The Board is aware that when determining whether the evidence submitted is new and material, the credibility of the evidence must be presumed. King v. Brown, 5 Vet. App. 19, 21 (1993); Justus v. Principi, 3 Vet. App. 510 (1992). However, an exception applies when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Robinette v. Brown, 8 Vet. App. 69, 75-76 citing King, 5 Vet. App. at 21. Here, the Board finds that the appellant's changed story that he had tinnitus while in service is inherently incredible. He had asserted at November 1993 and June 1996 VA audiological evaluations that his ringing in the ears had had its onset around 1975. He did not state that it started in service. Subsequently, he changed his story to having its onset during service, which contradicts his own prior statements. The Board finds that the appellant's statements and testimony do not constitute new and material evidence. See generally Nici v. Brown, 9 Vet. App. 494, 497 (1996) (Where clinical notes had established a preexisting condition and the appellant had later attempted to rebut the clinical findings, the Court found that whether the appellant admitted or not to the condition "pale[d] into insignificance" in light of the unrebutted induction examination which showed a preexisting condition "clinically"). This veteran's most recent revisiting of history pales into insignificance and is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The Board notes that no medical professional has attributed the appellant's diagnosis of tinnitus to the head injury he sustained in service. Although the appellant has asserted such, he is not competent to make such a medical opinion. See Moray v. Brown, 5 Vet. App. 211 (1993) ("If lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim [for service connection], it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108"). Thus, his statements and testimony cannot serve as a basis to reopen his claim for service connection for tinnitus. In the March 1994 rating decision, the RO denied service connection for tinnitus because the service medical records were negative for complaint of or treatment for tinnitus and that there was no evidence to show that tinnitus was the result of head injury, concussion, or significant acoustic trauma sustained in military service. None of the additional evidence submitted since the March 1994 rating decision has cured any of the prior evidentiary defects, and thus none of the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. §3.156(a). Because the Board has determined that the appellant has not submitted new and material evidence, it need not reach the determination of whether the appellant has submitted evidence of a well-grounded claim for service connection for tinnitus nor whether VA has fulfilled its duty to assist. See Winters, 12 Vet. App. at 206. Although VA is obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of the kind of evidence needed to reopen a previously denied claim, see Graves v. Brown, 8 Vet. App. 522 (1996), this obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the RO adequately fulfilled its obligation under section 5103(a) with the issuance of the statement of the case in August 1998, which provided the law and regulations pertaining to new and material evidence. Additionally, this Board Member kept the file open for 75 days to allow the appellant to submit additional evidence for this claim. In this respect, it is not shown that the appellant has put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could reopen his claim on the basis of new and material evidence, notwithstanding the fact that he has been provided opportunities to do the same. Thus, no additional development action is warranted. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Lastly, the Board is aware that diagnostic code 6260 was amended. However, an amendment to a regulation does not establish new and material evidence. IV. Increased evaluation The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim for an increased evaluation for bilateral hearing loss disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). Service connection for bilateral defective hearing was granted by means of a March 1969 rating decision and assigned a noncompensable evaluation. In a January 1998 decision, the hearing officer granted a 10 percent evaluation for bilateral hearing loss disability. The appellant underwent a VA audiological evaluation in June 1996. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 60 75 85 LEFT 15 60 85 100 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 84 percent in the left ear. The VA examiner stated that the test results revealed a moderately severe sensorineural hearing loss bilaterally. The appellant had an RO hearing in October 1997. He stated that his hearing was worse than the noncompensable evaluation contemplated. The appellant underwent a VA audiological evaluation in November 1997. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 60 80 85 LEFT 15 65 85 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 86 percent in the left ear. The VA examiner stated that the test results indicated no change from the June 1996 audiological evaluation. He added that the right ear demonstrated a mild to severe sensorineural hearing loss at 1500 Hertz and above and that the left ear demonstrated a moderate to severe sensorineural hearing loss at 1500 Hertz and above. The appellant a hearing before this Board Member in April 1999. There, the appellant's representative asserted that the appellant was dismayed that the hearing officer did not grant an evaluation higher than 10 percent for the bilateral hearing loss disability. Disability evaluations are based upon average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. (1999). The Board must note that the regulation which addresses evaluations for impairment of auditory acuity, changed effective June 1999. When a regulation changes after a claim has been filed but before the appeal process has been completed (which would apply here), the version most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see 38 U.S.C.A. § 5110. However, here, the changes made were not substantive in regard to the facts in this case, and thus neither is more favorable to the appellant's claim. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. The United States Court of Appeals for Veterans Claims has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The June 1996 VA audiological evaluation results revealed numeric scores of III in the right ear and III in the left ear. The November 1997 VA audiological evaluation results revealed numeric scores of IV in the right ear and III in the left ear. Both of the June 1996 and November 1997 audiological evaluation results revealed bilateral hearing loss disability, which is productive of a 10 percent disability. 38 C.F.R. Part 4, Diagnostic Code 6101 (1999). The preponderance of the evidence, however, is against the appellant's claim for an increased evaluation for bilateral hearing loss disability, as the results of the audiological evaluation do not warrant an evaluation in excess of 10 percent. Therefore, an increased evaluation for bilateral hearing loss disability is not warranted. 38 U.S.C.A. § 5107, Lendenmann, 3 Vet. App. at 349. ORDER The August 1994 rating decision denying service connection for vertigo was not clearly and unmistakably erroneous. Service connection for Meniere's disease is denied. The petition to reopen the claim for service connection for tinnitus is denied. An increased evaluation for bilateral hearing loss disability is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals