BVA9501324 DOCKET NO. 93-01 009 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for bilateral high frequency sensorineural hearing loss. 2. Entitlement to an increased rating for tendinitis of the right Achilles tendon, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for residuals of a contusion to the left shoulder. 4. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from July 1966 to July 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1992, rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to an increased rating for service-connected bilateral high frequency sensorineural hearing loss, tendinitis of the right Achilles tendon, and residuals of a contusion to the left shoulder, and also denied entitlement to service connection for a low back disability and a neck disability. A notice of disagreement as to all issues was received in March 1992. A statement of the case as to the issues of entitlement to an increased rating for service-connected bilateral high frequency sensorineural hearing loss, tendinitis of the right Achilles tendon, and residuals of a contusion to the left shoulder, as well as entitlement to service connection for a back disability was sent to the veteran in March 1992. A substantive appeal as to all issues covered in the statement of the case was received in March 1992. The veteran testified at a personal hearing at the RO in April 1992. At that time, he related that he believed that his alleged neck disability was a part of his service-connected left shoulder disability. In the hearing officer's decision issued in October 1992, the hearing officer concluded that the issue of entitlement to service connection for a back disability had previously been denied in a final rating action. The hearing officer determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for a back disability. He further determined that an increased rating of 20 percent for the veteran's service-connected right ankle disability should be granted, but also determined that increased ratings for service-connected bilateral hearing loss and left shoulder disability should be denied. In a supplemental statement of the case sent to the veteran in October 1992, it was determined that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for a back disability and the veteran was provided with the law and regulations pertaining to new and material evidence as to the issue of whether new and material evidence had been Thereafter, in an October 1992 rating decision, the veteran was granted entitlement to an increased rating of 20 percent for service-connected tendinitis of the right Achilles tendon. The Board notes that the issues of entitlement to an increased rating for service-connected bilateral high frequency sensorineural hearing loss, tendinitis of the right Achilles tendon, and residuals of a contusion to the left shoulder, as well as the issue of entitlement to service connection for a low back disability, are in appellate status and ready for appellate review. However, the Board observes that since the veteran was specifically denied entitlement to service connection for a neck (cervical spine) disability in the January 1992 rating decision and has appealed that decision in his notice of disagreement, he should be furnished a statement of the case as to that issue which should indicate whether that issue was denied on a direct basis and/or as secondary to his service-connected left shoulder disability. The Board notes that pursuant to the circumstances of this case, in particular, the veteran's May and June 1992 VA examinations, there is a question as to whether service connection is warranted for bursitis of the left shoulder and whether service connection is warranted for bilateral tinnitus. The Board notes that the disposition of the veteran's claim for the aforementioned disorders is not "inextricably intertwined" with the claim for an increased evaluation for service-connected contusion to the left shoulder and bilateral hearing loss, respectively, as the newly raised disorders may be rated under separate diagnostic code(s) in the VA's Schedule for Rating Disabilities. Kellar v. Brown, 6 Vet.App. 157, 160 (1994). In addition, the Board observes that in his April 1992 personal hearing at the RO, the veteran raised the issue of entitlement to a total disability evaluation for compensation based on individual unemployability. Because the claim currently on appeal is one for an increased schedular rating, the additional claim for a total rating is not inextricably intertwined with the underlying claim. Holland v. Brown, 6 Vet.App. 443 (1994). In addition, although the veteran has not specifically raised the issue of entitlement to a permanent and total disability rating for pension purposes, a claim for compensation is also considered a claim for pension under 38 C.F.R. § 3.151 (1993). Ferraro v. Derwinski, 1 Vet.App. 326, 333 (1991). The United States Court of Veterans Appeals (Court) has stated that the Board must develop the issue of entitlement to non service-connected pension where the appellant has wartime service and alleges unemployability. Pritchett v. Derwinski, 2 Vet.App. 116 (1992) citing Ferraro. Therefore, the Board refers the issues of: entitlement to service connection for bursitis of the left shoulder, entitlement to service connection for bilateral tinnitus, entitlement to a total disability evaluation for compensation based on individual unemployability and entitlement to non service-connected pension, to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected disabilities are more severe than are represented by the current ratings. In addition, he asserts that he initially injured and/or aggravated his back during service which has resulted in a lasting disability. 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 does not support a rating of more than 20 percent for the veteran's service-connected tendonitis of the right Achilles tendon; and that the evidence does not support compensable ratings for the veteran's service-connected bilateral high frequency sensorineural hearing loss and service-connected residuals of a contusion to the left shoulder Further, it is the decision of the Board that the veteran is entitled to service connection for a back disability. FINDINGS OF FACT 1. The veteran has level I hearing bilaterally. 2. The veteran's service-connected tendinitis of the right Achilles tendon is objectively manifested by tenderness over the right Achilles tendon with some enlargement at the site of the insertion of the tendon and with a slight bone protrusion at the back of the calcaneus; stiffness upon movement of the right ankle; and subjective complaints of pain. 3. The veteran's service-connected residuals of a contusion to the left shoulder is objectively manifested by strength in all perimeters with slight weakness, no muscle atrophy, a good grip, and normal reflexes. 4. The veteran clearly and unmistakably had a low back disability prior to service. 5. During the veteran's period of active service, there was an increase in the severity of the pre-existing low back disability. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1993). 2. The schedular criteria for a disability rating of more than 20 percent for tendinitis of the right Achilles tendon have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, 4.40, Diagnostic Code 5271 (1993). 3. The schedular criteria for a compensable rating for residuals of a contusion of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5301-5302 (1993). 4. There is clear and unmistakable evidence that the veteran's back disability existed before service, and the presumption of soundness with regard to that disability is rebutted. 38 U.S.C.A. § 1111 (West 1991). 5. The veteran's preexisting low back disability was aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107(b) (West 1991); 38 C.F.R. § 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims as to the issues currently in appellate status are well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claims. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). 1. Bilateral Hearing Loss There is no entrance examination of record. A 1970 discharge/immediate reenlistment record included an audiology evaluation. In regards to the right ear, the audiogram for pure tone thresholds revealed: a 15 decibel (dB) threshold at 500; a 10 decibel threshold at 1000, a 10 dB threshold at 2000, a 10 dB threshold at 3000, a 30 dB threshold at 4000, and a 40 dB threshold at 6000. In regards to the left ear, the audiogram for pure tone thresholds revealed: a 10 decibel dB threshold at 500; a 10 dB threshold at 1000, a 10 dB threshold at 2000, a 30 dB threshold at 3000, a 65 dB threshold at 4000; and a 65 dB threshold at 6000. The examiner indicated that the veteran had bilateral high frequency hearing loss. Following discharge, the veteran was afforded a VA examination to include an audiology evaluation in July 1980. The examination revealed that the veteran had bilateral sensorineural hearing loss which was worse in the left ear. Based on that examination, the veteran was granted entitlement to service connection for bilateral high frequency hearing loss in an August 1980 rating decision, and was assigned a non-compensable rating. A subsequent 1982 VA audiology evaluation determined that the veteran had good hearing acuity through 3000 hertz in the right ear and 200 hertz in the left ear and then a precipitous sensorineural loss of acuity to a severe level in the right ear and a very severe level in the left ear. His discrimination for speech was still noted to be excellent in ideal listening situations. In support of his claim, the veteran testified at a personal hearing at the RO in April 1992. At that time, he requested a current VA audiology evaluation. In June 1992, the veteran was afforded an audiology evaluation. The findings of the audiometric testing were: in regards to the right ear, the audiogram for pure tone thresholds revealed that the four frequency average for the right ear was 33 dB and the four frequency average for the left ear was 46 dB. The veteran had a speech recognition score of 100 percent bilaterally. The examiner determined that the veteran's hearing was within normal limits for 250-2000 hertz bilaterally. For the higher frequencies, there was a bilateral sensorineural hearing loss which was noted to be mild to moderate in the right ear and moderate to severe in the left ear. Speech recognition was good bilaterally and both tympanograms were within normal limits. Currently, the veteran contends that his bilateral hearing loss is more severe than is represented by the non-compensable rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). Evaluations of bilateral defective hearing range from non-compensable 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 of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for bilateral service- connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal hearing through level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110. On the VA audiological evaluation in August 1992, the examiner reported an average pure tone threshold of 33 in the right ear and 46 in the left ear, with speech recognition of 100 percent bilaterally. Under the applicable rating criteria, these findings translate to a numeric designation of hearing impairment at level I bilaterally. In this case, the application of the rating schedule to the numeric designation of level I bilaterally does not demonstrate entitlement to a compensable disability rating. Thus, the Board is unable to grant the benefit sought on appeal with respect to this issue upon application of the rating criteria to the facts. Therefore, the Board finds the results shown on the June 1992 VA examination to be contemplated by the rating schedule, assigning a non-compensable rating. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased rating for bilateral high frequency hearing loss. II. Tendinitis of the Right Achilles Tendon As previously noted, there is no service entrance examination for review. The service medical records reflect that, in April 1974, the veteran initially reported extreme pain in his right Achilles tendon. He continued to complain of pain in his right heel, and in July 1974, x-rays revealed a small avulsion type fracture of the dorsal post lip of calcaneus. The examiner's impression was possible strain of an old fracture from Achilles tendon insertion causing pain. The veteran was provided a heel lift to reduce strain. The veteran remained symptomatic, especially during running exercises. Subsequent x-rays in October 1974 revealed bone build-up and destruction at calcaneal tuberosity where Achilles inserts. A diagnosis of Achilles tendinitis was made. A diagnosis of calcaneal spurs was made in February 1975. In June 1975, a Medical Board determined that the veteran had had continued symptomatology of his Achilles tendinitis which did not resolve with treatment. Consequently, he was found to be unfit for duty and was discharged. Following service, the veteran was afforded a VA examination in December 1975. At that time, the veteran complained of pain in the area of the insertion of the Achilles tendon to the os calcis. No other symptomatology was found on examination. In a February 1976 rating decision, the veteran was granted entitlement to service connection for tendinitis of the right Achilles tendon, and was assigned a 10 percent rating. The grant was based on the veteran's medical records and the 10 percent rating was based on the findings of the 1975 VA examination. Thereafter, from 1980 to the present time, the Board observes that the veteran continued to receive treatment for his service- connected tendonitis of the right Achilles tendon, particularly for complaints of pain. In support of his claim, the veteran testified at a personal hearing at the RO in April 1992. At that time, he related that he is unable to comfortably wear shoes and that he cannot walk up and down inclines without limping due to pain. Following the personal hearing, the veteran was afforded a VA examination in May 1992 in order to determine the current level of severity of his service-connected tendinitis of the right Achilles tendon. Physical examination revealed no gross joint abnormalities. The veteran was quite tender over the right Achilles tendon which had some enlargement at the site of the insertion of the tendon and was rather tender in a slight bone protrusion at the back of the calcaneus. The veteran was very stiff with movement of the right ankle, but he was also stiff with movement of the left ankle and there was no identified difference in the range of motion between the two ankles. Following the VA examination, the veteran was granted an increased rating of 20 percent for his service-connected tendinitis of the right Achilles tendon, in an October 1992 rating decision. The grant of an increased rating was based on the findings that the veteran had subjective complaints of right ankle and heel pain and objective findings of tenderness and stiff movement. Currently, the veteran contends that his tendinitis of the right Achilles tendon is more disabling than is represented by the 20 percent rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). Under the rating schedule, tendinitis is rated analogous to tenosynovitis under Diagnostic Code 5024. The rating schedule directs that diseases rated under that code should be rated based on the limitation of motion of the affected parts as degenerative arthritis. It is noted that the rating schedule provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1993). Therefore, the veteran's disability is rated pursuant to the criteria set forth for limitation of motion of the right ankle under Diagnostic Code 5271. Under that code, a 10 percent rating is appropriate for moderate limitation of motion and a 20 percent rating is appropriate for marked limitation of motion. When all the medical evidence is taken into account, the veteran's service-connected tendinitis of the right Achilles tendon is objectively manifested by tenderness over the right Achilles tendon with some enlargement at the site of the insertion of the tendon and with a slight bone protrusion at the back of the calcaneus, stiffness upon movement of the right ankle, and subjective complaints of pain. As there is discomfort which clearly limits the effectiveness of motion, a 20 percent rating is warranted. 38 C.F.R. § 4.40 (1993). The Board finds that since the veteran is currently assigned the highest rating available under Diagnostic Code 5271, an increased rating is not warranted under that code. The Board has considered the veteran's complaints of pain, however, the Board finds that the 20 percent rating contemplates his complaints of pain and adequately covers all of his current symptomatology. The Board has also considered an extra-schedular evaluation where the provisions of 38 C.F.R. § 3.321 (1993), but does not find the disability picture so unusual as to render impractical the regular schedular standards. In this regard, the Board notes that the veteran has not had frequent periods of hospitalization for his service-connected tendinitis of the right Achilles tendon. The Board therefore finds that the negative evidence outweighs the positive evidence. 38 U.S.C.A. § 5101(b) (West 1991). Accordingly, the Board finds that the schedular criteria for a disability rating of more than 20 percent for tendinitis of the right Achilles tendon have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5271 (1993). III. Residuals of a Contusion to the Left Shoulder As previously noted, there is no service entrance examination for review. The service medical records reflect that, in June 1970, the veteran reported left shoulder pain of one month's duration, but an x-ray was unremarkable. In February 1973, the veteran complained of pain in the left shoulder. Objectively, slight tenderness in abduction was noted at 180 degrees. In April 1974, there were no clinical findings or disease found. The veteran continued to complain of left shoulder pain. In June 1974, a diagnosis of probable left shoulder sprain was noted. Following service, the veteran was afforded a VA examination in December 1975. At that time, the veteran complained that his left shoulder was bothering him. Physical examination revealed no evidence of muscle atrophy, no tenderness to palpitation or manipulation, full range of motion, negative internal and external rotation, no deformity, and no neurological changes. The examination noted that the veteran is right-handed. In a February 1976 rating decision, the veteran was granted entitlement to service connection for a contusion of the left shoulder, and was assigned a non-compensable rating. The grant was based on the veteran's medical records which revealed complaints of pain and the non-compensable rating was based on the lack of clinical findings on the 1975 VA examination. Thereafter, from 1980 to the present time, the Board observes that the veteran continued to receive treatment for his service- connected left shoulder, particularly for complaints of pain. A recent May 1992 VA clinical record revealed that x-rays of the left shoulder showed degenerative and hypertrophic changes. There was some narrowing of the shoulder joint space, no displacement, fracture or dislocation. In support of his claim, the veteran testified at a personal hearing at the RO in April 1992. At that time, he related that his shoulder locks, pops, and hurts. He reported that he has trouble sleeping and lifting and takes Motrin for the pain. Following the personal hearing, the veteran was afforded a VA examination in May 1992 in order to determine the current level of severity of his service-connected left shoulder disability. Physical examination revealed no gross joint abnormalities. Physical examination of the shoulder revealed some crepitus when trying to raise the left arm overhead. Passively, he could raise the left arm quite well and had no limitation of motion. He had strength in all perimeters, although his left shoulder was a little weaker than the right shoulder. There was no muscle atrophy. He exhibited a good grip, normal reflexes, and the neck was normal and did not produce pain in the left shoulder. The diagnosis was probable chronic bursitis of the left shoulder. Currently, the veteran contends that his residuals of a contusion to the left shoulder is more disabling than is represented by the non-compensable rating. The evaluation assigned for a service- connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). Currently, the veteran has been granted service connection for muscle injury to the left shoulder as indicated by his rating under Diagnostic Codes 5301-5302. Under Diagnostic Code 5301, a non-compensable rating is appropriate for damage to muscle group I (extrinsic muscles of the shoulder girdle) where the disability is slight to the minor extremity; a 10 percent rating is appropriate where the disability is moderate to the minor extremity; a 20 percent rating is appropriate where the disability is moderately severe to the minor extremity; and a 30 percent rating is appropriate where the disability is severe to the minor extremity. Under Diagnostic Code 5302, a non-compensable rating is appropriate for damage to muscle group II (extrinsic muscles of the shoulder girdle) where the disability is slight to the minor extremity; a 10 percent rating is appropriate where the disability is moderate to the minor extremity; a 20 percent rating is appropriate where the disability is moderately severe to the minor extremity; and a 30 percent rating is appropriate where the disability is severe to the minor extremity. The Board observes that at the time of the May 1992 VA examination, the examiner noted some crepitus upon limitation when the veteran raised his left arm overhead. The crepitus was the only positive objective finding noted on the report of examination which resulted in the examiner's diagnosis of probable chronic bursitis of the left shoulder. In addition, a May 1992 x-ray report revealed degenerative and hypertrophic changes of the left shoulder. The Board observes that the veteran is currently service-connected for a muscle injury of the left shoulder, but is not service-connected for bursitis of the left shoulder. However, since these findings present a question as to whether the veteran currently has a second disability of the left shoulder which may be rated separately and distinctly from the currently assigned rating, the Board, as previously noted, referred this issue to the RO for appropriate development per the directives set forth in Kellar. In regards to the veteran's service-connected residuals of a contusion to the left shoulder, when all the medical evidence is taken into account, the veteran's service-connected residuals of a contusion to the left shoulder is objectively manifested by strength in all perimeters with slight weakness, no muscle atrophy, a good grip, and normal reflexes. The Board finds that the veteran's current objective manifestations do not meet the criteria for moderate disability necessary for a compensable under Diagnostic Codes 5301-5302. As noted, the veteran does not exhibit residual muscle damage as evidenced by the lack of any muscle atrophy and the normal findings in strength, grip strength and reflexes. Although he has slight weakness on the left, that symptom is contemplated in the current non-compensable rating appropriate for a slight disability. The Board therefore finds that the negative evidence outweighs the positive evidence. 38 U.S.C.A. § 5107(b) (West 1991). Accordingly, the Board finds that the schedular criteria for a compensable rating for residuals of a contusion of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5301-5302 (1993). IV. Back Disability In a February 1976 rating decision, entitlement to service connection for tendinitis of the right Achilles and for a contusion of the left shoulder were granted. In addition, entitlement to service connection for a right shoulder disability, for low back strain with nerve root pressure on left and for degenerative disc disease, L5, S1 interspace, were denied by the RO. Also, the issue of entitlement to service connection for hearing loss was deferred. In a subsequent February 1976 letter, the RO informed the veteran of the grant of service connection for tendinitis of the right Achilles and for a contusion of the left shoulder, of the denial of service connection for a right shoulder disability, and that the issue of entitlement to service connection for hearing loss had been deferred pending an examination. However, the veteran was not informed of the denial of entitlement to service connection for a back disability. Currently, the veteran has indicated that he is seeking entitlement to service connection for a low back disability. In the VA letter to the veteran dated February 27, 1976, in which the veteran was notified of the rating decision, there was no reference to the claim for service connection for a back disability. He has not, however, indicated that is seeking to "reopen his claim" for service connection for a back disability. Procedurally, in the January 1992 rating decision, the RO denied entitlement to service connection for a back disability on the merits. In the subsequent March 1992 statement of the case, the veteran was provided the law and regulations appropriate for a review of entitlement to service connection based on the merits of the claim. However, after the veteran testified at a personal hearing at the RO in April 1992, the hearing officer concluded that the issue of entitlement to service connection for a back disability had previously been denied in a final rating action and determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for a back disability. In an October 1992 supplemental statement of the case, it was determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for a back disability, and the veteran was provided with the law and regulations pertaining to new and material evidence. The Board finds that the veteran was not properly notified of the February 1976 denial of his claim for service connection for a back disability or of his procedural and appellate rights regarding that denial. Therefore, the Board concludes that the 1976 rating decision did not become final due to the lack of proper notification to the veteran and that his claim as to that issue has been open since that time. Thus, the January 1992 rating decision properly reviewed the issue of entitlement to service connection for a back disability on the merits and the veteran was properly provided the appropriate law and regulations in the March 1992 statement of the case. The subsequent review by the hearing officer and in the supplemental statement of the case improperly reviewed the claim on the basis of new and material evidence and finality. The Board notes that Bernard v. Brown, 4 Vet.App. 384 (1993), provides that to establish no prejudice to the appellant by rendering a decision on the merits of the claim which was denied on the basis of finality, it must be shown that the appellant had sufficient notice and the opportunity to submit evidence and/or argument on that question. In this case, the Board finds that since the veteran's claim was first denied on the merits in the January 1992 decision and since the veteran was provided the appropriate law and regulations in the March 1992 statement of the case following that decision, the veteran has been given adequate notice and an opportunity to submit evidence and/or arguments addressing the merits of the claim. It is noted that the veteran has in fact submitted extensive medical and lay evidence in support of his claim. In addition, he has also clearly set forth his contentions regarding the merits of the claim. Accordingly, in view of the requirements set forth in Bernard, the Board finds that there is no prejudice to the appellant by rendering a decision on the merits of the claim for entitlement to service connection for a back disability. Therefore, the Board will review the veteran's claim based on all the evidence of record. Pertinent laws and regulations provide that 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). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). A review of the veteran's service medical records revealed that there was no entrance examination. The service medical records reflected that, in February 1967, the veteran began complaining of pain and aching in the low back area. At that time, he reported that he had suffered from low backaches and pain prior to service, in fact, he related that he had had these problems all of his life. He further related that he was often sent home from school as a child due to back pain. He reported that the back pain increased with prolonged standing, running, and lying on his back. No recent trauma was reported. A diagnosis of probable chronic lumbosacral strain, anterior longitudinal ligament, rule out congenital vertebral anomaly. The examiner further noted partial sacralization of L5, right transverse process. In August 1967, the veteran complained of sharp pains in the low back which were brought on by lying in prone position at the rifle range and by running. Physical examination revealed no muscle spasms, deep tendon reflexes of 2+ bilaterally, no evidence of muscle weakness or wasting, no pain over lumbosacral spine to pressure, and full range of motion of the back. In January 1968, the veteran began complaining of left leg pain. Although the examiner considered a possible disc injury, it was noted that there was little to suggest that by way of history and there were no findings on physical examination. In June 1969, the veteran complained of pain in the lumbar region with no radiation. Physical examination revealed pain from T1 to S1 in paravertebral areas with no vertebral tenderness. The tenderness appeared solely limited to the muscular parts, and there was full range of motion, negative straight leg raising, and good deep tendon reflexes. The impression was lumbar strain. A 1970 discharge/reenlistment examination did not reveal any abnormalities. There were no further findings until February 1973 when the veteran complained of left leg pain. There was no discharge examination since the veteran was discharged per a Medical Board's findings. The Medical Board did not address the veteran's back problems. Following discharge, the veteran was afforded a VA examination in December 1975. At that time, the veteran reported no injuries, but complained of back pain upon lifting and carrying any weight. The pain was in the localized region L1 on the left side. He further reported radiating pain down the left leg upon walking distances. Physical examination revealed a normal curvature of the spine, no paravertebral muscle spasms, no tenderness to palpitation or percussion, and no sciatic notch tenderness. The veteran performed a full knee bend without difficulty. He complained of tightness in the muscles of the posterior aspect of the thigh and calf, but no evidence of back or foot discomfort on either the left or the right side. X-rays of the lumbar spine revealed slight straightening in the lateral projection, mild narrowing of the L5-S1 interspace, no fractures, no dislocation, and no other abnormalities. The diagnosis was low back strain with nerve root pressure on the left and degenerative disc disease L5-S1, interspace. There are no further records until a 1987 VA clinical record which revealed general complaints of back pain. A March 1990 Maryville Orthopaedic Clinic record revealed treatment for back pain. At that time, the veteran reported back pain of 10 years duration which radiated down his leg. Physical examination revealed limited range of motion due to pain, a level pelvis, no spasm, tenderness in the lumbosacral joint, no skin tenderness, negative straight leg raising in the supine position and positive at 45 degrees on the left in the supine position. X-rays of the lumbar spine revealed generalized degenerative disease with anterior osteophytes. The diagnosis was degenerative disc disease of the lumbar spine. VA clinical records dated in 1991 revealed continued complaints of back pain, pain radiating down the left leg. Subsequent May 1992 VA x-rays revealed degenerative and hypertrophic changes in the lumbar spine. In May 1992, the veteran was afforded a VA examination. At that time, he complained of lumbar pain and problems with his left leg. Physical examination revealed a normal contour of the spine. The veteran was extremely stiff with any kind of motion and he could only bend forward 45 to 50 degrees. In arching the back, there was some pain in the lumbar area, and the veteran could move laterally very little. The examiner could find no trigger points in the lumbar area, reflexes were normal in the lower extremities, straight leg raising was not attempted as the examiner was sure that movement would have been stiff, pulses were present, and there was no significant edema. The diagnosis was low back pain and probable degenerative arthritis of the lumbar spine. In support of his claim, the veteran testified at a personal hearing in April 1992. At that time, he related that he injured his back during service. Specifically, he reported that while he was performing exercises involving putting his head between his legs on the rifle range, his drill instructor jumped on his back to force his head down several times. He related that his back problems started at that time. He further related that although he experienced backaches while gardening before entering service, but did not sustain any back injuries prior to service. In addition, lay statements dated in 1992 essentially related that the veteran currently had back pain which inhibited his ability to walk long distances and stand for prolonged periods. His mother related that he did not have a back problem prior to service. As noted, a veteran is presumed in sound condition except for defects noted when examined and accepted for service and clear and unmistakable evidence that the disability existed prior to service will rebut the presumption of soundness. In this case, the Board observes that there is no entrance examination available for review. However, the veteran while in service gave clear detailed statements to the effect that he had back problems prior to service. Although he currently asserts that he did not have any preexisting back injuries and that his back was initially injured due to trauma in service and although his mother reports that his back was normal prior to service, the Board finds his statements in service to be of greater probative value since they were made contemporaneously with his inservice complaints of back problems and were made at a time when he was in need of medical treatment. In addition, there is no corroborating documentary medical evidence of any specific trauma in service. Therefore, the Board finds that the veteran's statements constitute clear and unmistakable evidence that a back disability existed prior to service. Therefore, the presumption of soundness is rebutted as to those two disabilities. 38 U.S.C.A. § 1111 (West 1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. 3.306(b) (1993). The United States Court of Veterans Appeals (Court) has stated that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet.App. 304, 306-307 (1993) citing Hunt v. Derwinski, 1 Vet.App. 292 (1991). Therefore, a determination must be made as to whether the underlying disease process did indeed worsen or whether there was a mere exacerbation of symptoms during service. Initially, the Board notes that since medical records prior to service are not available for review and since an entrance examination is also not available for review, the exact nature of the veteran's preexisting back disability is uncertain. The service medical records revealed that the veteran was treated on a regular basis for the first several years of service. Thereafter, he was treated sporadically for back pain and left leg problems. The veteran was discharged due to another disability per a Medical Board's recommendation, but a back disability was not addressed. Nevertheless, within a few months of discharge, the veteran was afforded a VA examination. At that time, his complaints were similar to the complaints he reported in service regarding lumbar spine pain with radiating pain down the left leg. The diagnosis was low back strain with nerve root pressure on the left and degenerative disc disease L5-S1, interspace, confirmed by x-ray. Thereafter, the veteran apparently did not receive treatment on a regular basis for a back disability for many years. Current records show degenerative disc disease of the lumbar spine and continued complaints of low back pain. A review of the records reveals that although the veteran currently reports sustaining a trauma to the back inservice, there is no evidence of such an occurrence during service. However, during service, the veteran was treated on several occasions for lumbar back pain and pain radiating down the left leg following incidents where field exercises aggravated his back disability. The Board finds that there is a question as to whether these incidents represented a mere exacerbation of symptoms or whether the underlying disease process of the veteran's back disability actually worsened. As previously noted, due to the lack of available medical evidence, there is no evidence establishing the level of severity of the veteran's back disability prior to his entrance into service. There are several incidents of treatment for back pain during service and documented findings of lumbar or lumbosacral strain. In addition, the veteran apparently developed problems with radiating pain down his left leg during service. Following service, the veteran was examined by the VA within a few months which resulted in a diagnosis of low back strain with nerve root pressure on the left and degenerative disc disease L5-S1, interspace, confirmed by x-ray. This diagnosis has been recently confirmed. A report from the Maryville Orthopedic Clinic dated in March 1990, for example, includes a diagnosis of degenerative disk disease of the lumbar spine. The Board concludes that the veteran's preexisting back disability increased in severity during service. Since the veteran apparently developed nerve root pressure during service and since a diagnosis of degenerative disc disease was not shown to be present prior to service, but was clinically found within months of discharge, the Board finds that the veteran's back disability increased in pathology during service. Accordingly, the Board concludes that the positive and negative evidence is in relative equipose. Therefore, a grant of service connection for a low back disability based on aggravation is warranted. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107(b) (West 1991); 38 C.F.R. § 3.306 (1993). ORDER The appeal as to the issues of entitlement to an increased rating for service-connected bilateral high frequency sensorineural hearing loss, tendonitis of the right Achilles tendon, and residuals of a contusion to the left shoulder, is denied. The appeal as to the issue of entitlement to service connection for a low back disability is granted. G. H. SHUFELT 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.