Citation Nr: 0007418	
Decision Date: 03/20/00    Archive Date: 03/23/00

DOCKET NO.  98-12 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to service connection for right ear hearing 
loss.  

2.  Entitlement to a compensable evaluation for left ear 
hearing loss disability, on appeal from the initial grant of 
service connection.

3.  Entitlement to an evaluation in excess of 10 percent for 
psoriasis, on appeal from the initial grant of service 
connection.  

4.  Entitlement to a compensable evaluation for residuals of 
a small chip fracture at the base of the proximal phalanx of 
the left thumb, on appeal from the initial grant of service 
connection.

5.  Entitlement to a compensable evaluation for residuals of 
a right thumb injury, on appeal from the initial grant of 
service connection.

6.  Entitlement to a compensable evaluation for left ankle 
strain, on appeal from the initial grant of service 
connection.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Nancy R. Kegerreis


INTRODUCTION

The veteran served on active duty from May 1973 to October 
1996.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a December 1997 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee, which denied service connection for 
right ear hearing loss and awarded service connection for the 
disabilities noted above at the stated evaluations.  

The issue of entitlement to higher evaluations for residuals 
of left and right thumb injuries and left ankle strain are 
the subject of the remand herein.


FINDINGS OF FACT

1.  The veteran does not have a current right ear hearing 
loss disability, and his claim of entitlement to service 
connection is not plausible.  

2.  The veteran has normal hearing in the right ear and level 
I hearing in the left ear.  

3.  The veteran's psoriasis is manifested by typical 
psoriatic changes on his fingers, hands, and both shoulder 
areas, with a few spots on the abdomen and both knees, 
without evidence of bleeding or cracking.  


CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for right 
ear hearing loss disability is not well grounded.  
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.385 (1999).

2.  The schedular criteria for a compensable evaluation for a 
left ear hearing loss have not been met at any time since the 
initial grant of service connection.  38 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999).

3.  The schedular criteria for an evaluation in excess of 10 
percent for psoriasis have not been met at any time since the 
initial grant of service connection.  38 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7816 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

Service medical records show that the veteran complained of 
numbness of the left [sic] thumb without trauma in August 
1976.  An x-ray of the right [sic] thumb showed a benign 
appearing lucent cystic lesion in the base of the distal 
phalanx of the thumb.  Diagnostic considerations included 
epidermoid inclusion cyst, a glomus tumor, or an enchondroma.  
Clinical correlation was recommended.  The treatment note 
assessed tendonitis following bowling, and hot soaks were 
prescribed.  The veteran reported having twisted his left 
ankle playing ball in November 1976.  An x-ray showed no 
significant abnormality.  An Ace wrap and crutches were 
prescribed.  In December 1976, he reported that he jammed his 
left thumb on ice.  X-rays showed a small chip fracture at 
the base of the proximal phalanx with approximately 45 degree 
rotation of the fracture fragment, extending into the 
articular surface.  In November 1977, he reportedly fell on 
his right hand, and an x-ray showed no significant 
abnormality.

On periodic examination in May 1981, significant history 
recorded a sprained left ankle in 1976, casted and still 
experiencing weakness.  On audiological evaluation, puretone 
thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
5
5
LEFT
10
0
0
15
25

In June 1981, he underwent a dermatological consultation for 
red, rough, silver-encrusted lesions on the forearms.  
Psoriasis was diagnosed.  Service medical records reflect 
periodic treatment and evaluations for psoriasis throughout 
the remainder of his active service.

Audiometric examination during service in June 1987 revealed 
the following pure tone thresholds in decibels:  




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
20
5
0
15
35

In January 1988, the veteran underwent a civilian 
dermatological consultation regarding a 10 year history of 
psoriasis, mainly on the elbows, knees, scalp, and fingers.  
On examination, the veteran had fairly extensive psoriasis 
involving the elbows, knees, and all ten fingertips.  It was 
patchy in the scalp.  The examiner recommended treatment 
options.

On periodic examination in October 1989, the veteran's 
puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
5
0
LEFT
10
5
5
10
30

In January 1996, the veteran complained of persistent pain in 
the right thumb at the proximal interphalangeal (PIP) joint 
after striking it on a wall.  Swelling had resolved, but pain 
with motion remained.  X-rays showed no abnormalities.  The 
assessment was soft tissue injury to right thumb PIP.  The 
veteran continued to complain of pain and stiffness, and 
occupational therapy was undertaken in February 1996.  

The veteran's separation hearing examination in June 1996 
showed pure tone thresholds in decibels as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
15
20
LEFT
10
10
10
25
5

The June 1996 separation examination also noted that he had 
suffered from psoriasis since 1978 and that treatment with 
various medications had had fair-to-poor results.  The 
condition, which was located on the elbows, fingertips, 
shoulders and arms, remained active and was, at that time 
unresolved.  It was reported, as well, that he had sustained 
a small chip fracture of the proximal phalanx of the left 
thumb and soreness and loss of strength of the right thumb in 
1995, which had been treated with fair results, but which 
remained unresolved.  He had had left ankle weakness since 
1977 due to severe ankle strain.  The ankle had reportedly 
been casted for six to eight weeks, without additional 
treatment required.  

During VA audiometric examination in October 1997, the 
veteran reported decreased hearing for approximately five 
years, with a history of tinnitus, vertigo, and noise 
exposure from F4 aircraft and aeronautical ground equipment, 
as well as gunfire twice a year on a small arms range.  He 
had had no medical treatment or surgery involving his ears.  

Audiometric evaluation indicated pure tone thresholds, in 
decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
10
10
LEFT
15
10
10
20
45

The average for the right ear was 11 decibels and for the 
left ear 21 decibels.  
Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and of 96 percent in the left ear.  
The examiner stated that the results suggested hearing within 
normal limits in the right ear and a moderate high-frequency 
sensorineural hearing loss in the left ear.  He commented 
that these thresholds were believed to represent true organic 
acuity.  

A VA general medical examination in October 1997 mentioned 
that the veteran had retired from the United States Air Force 
in November 1996.  The examiner recorded the veteran's 
history of sustaining infractions of both ankles in 1987 and 
infractions of the metacarpal phalangeal joints of both hands 
in 1995.  He reported that he had had psoriasis on his hands, 
fingers, elbows, shoulders, back, and knees for the past 20 
years.  The changes of the skin on the chest and the back had 
disappeared with present treatment.  He did have some pain in 
both hands especially both metacarpal phalangeal joints.  He 
also had some pain in both ankles, with occasional swelling, 
which prevented him from running.  Both the hand and ankle 
conditions had been treated orthopedically during military 
service.  

Examination of the veteran's skin disclosed typical psoriatic 
changes on fingers, hands, and both shoulder areas, with a 
few spots on the abdomen and involvement of both knees.  
There was no blood present, and the lesions were not cracked.  
Examination of the musculoskeletal system was negative, 
although he did have pain on dorsal flexion and plantar 
extension of both ankles.  There was no swelling, however, 
and lateral deviation was possible.  Pertinent diagnoses were 
generalized psoriasis, status post injury and infraction of 
both ankles; and some pain and osteoarthritis of both 
metacarpal phalangeal joints.  X-rays of the ankles were to 
be ordered, and they are not of record.


II.  Legal Analysis

A.  Service Connection for a Right Ear Hearing Loss

Service connection may be granted for diseases or injuries 
incurred or aggravated while in active service.  38 U.S.C.A. 
§§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999).  The 
initial question which must be answered is whether the 
veteran has presented 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) (West 1991).  To be well 
grounded, a claim must be "plausible;" that is, it must be 
one which is meritorious on its own or capable of 
substantiation.  Such a claim need not be conclusive, but 
only possible to satisfy the initial burden of § 5107(a).  
Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition 
in Epps v. Brown, 9 Vet. App. 341, 344 (1996).  A claim which 
is not well grounded precludes the Board from reaching the 
merits of a claim.  Boeck v. Brown, 6 Vet. App.  14, 17 
(1993).

A well-grounded claim for service connection requires that 
the veteran present medical evidence of a current disability; 
medical evidence, or, in certain circumstances, lay evidence, 
of in-service incurrence or aggravation of a disease or 
injury; and medical evidence of a nexus or link between the 
claimed in-service disease or injury and the present disease 
or injury.  Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. 
Brown, 7 Vet. App. 498, 506 (1995).  

Hearing loss disability for VA purposes is defined in 
regulations.  Impaired hearing will be considered to be a 
disability when the auditory threshold in any of the 
frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 
decibels or greater; or when the auditory thresholds for at 
least three of the frequencies 500, 1000, 2000, 3000, or 4000 
Hertz are 26 decibels or greater; or when speech recognition 
scores using the Maryland CNC Test are less than 94 percent.  
38 C.F.R. § 3.385 (1999).  

A review of the veteran's last three audiometric reports, the 
May 1987 and June 1996 service reports and the VA report of 
October 1997, shows that none of these examinations disclosed 
any hearing loss in the right ear which would meet the 
requirements of 38 C.F.R. § 3.385.  Although testing shows an 
apparent diminishment of right ear hearing acuity in service, 
the VA examination suggests that hearing in that ear had 
actually improved somewhat following discharge from service.  
While hearing acuity at the 1000 decibel level did diminish 
by 10 decibels, at the 3000 and 4000 levels, there appears to 
be a slight improvement in overall hearing acuity.  Moreover, 
the VA examiner reported that results of audiometric testing 
of the right ear suggested hearing within normal limits.  The 
veteran thus has not been found to have a current hearing 
disability in the right ear.  A valid claim requires proof of 
a current disability.  Brammer v. Derwinski, 3 Vet. App. 223, 
225 (1992).  

Accordingly, the evidence does not demonstrate that the claim 
for service connection for a right ear hearing loss is 
plausible and the claim must be denied.  

The Board recognizes that the RO denied the veteran's claim 
on the merits, whereas the Board has concluded that the claim 
is not well grounded.  The United States Court of Appeals for 
Veterans Claims has held that when an RO does not 
specifically address the question whether a claim is well 
grounded, but proceeds to adjudication on the merits, there 
is no prejudice to the veteran solely from the omission of 
the well-grounded analysis.  Meyer v. Brown, 9 Vet. App. 425, 
432 (1996). 


B.  Claims for Higher Evaluations

The veteran has presented well-grounded claims for higher 
disability evaluations for his service-connected left ear 
hearing loss and psoriasis.  38 U.S.C.A. § 5107(a) (West 
1991).  When a claimant has been awarded service connection 
for a disability and subsequently appeals the RO's initial 
assignment of a rating for that disability, the claim 
continues to be well grounded as long as the rating schedule 
provides for a higher rating and the claim remains open.  
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).

These claims involve the veteran's dissatisfaction with 
initial ratings assigned following a grant of service 
connection.  See Fenderson v. West, 12 Vet. App. 119 (1999).  
This appeal being from the initial rating assigned to a 
disability upon awarding service connection, the entire body 
of evidence is for equal consideration.  Consistent with the 
facts found, the rating may be higher or lower for segments 
of the time under review on appeal, i.e., the rating may be 
"staged."  Id.  The veteran filed his claims in September 
1997; all VA examinations were accomplished in October 1997; 
and rating decisions were made in December 1997.  The veteran 
has presented no evidence of treatment for any condition in 
issue since the initial grant of service connection, and 
there is no evidence on which to base any change in 
evaluation during the appeal period.  

Disability evaluations are administered under the Schedule 
for Rating Disabilities, which is designed to compensate a 
veteran for reductions in earning capacity as a result of 
injury or disease sustained as a result of or incidental to 
military service.  Bierman v. Brown, 6 Vet. App. 125, 129 
(1994).  In evaluating a disability, the VA is required to 
consider the average impairment in earning capacity resulting 
from such diseases and injuries and their residual conditions 
in civil occupations.  38 U.S.C.A. § 1155; Dinsay v. Brown, 
9 Vet. App. 79, 85 (1996).  


1.  Evaluation of Left Ear Hearing Loss Disability

The rating schedule provisions for evaluation of impairment 
of auditory acuity were amended during the pendency of this 
appeal, effective June 10, 1999.  Where regulations change 
during the course of an appeal, the Board must determine, if 
possible, which set of regulations, the old or the new, is 
more favorable to the claimant and apply the one more 
favorable to the case.  Karnas v. Derwinski, 1 Vet. App. 308, 
312-13 (1991).  However, where the amended regulations 
expressly provide an effective date and do not allow for 
retroactive application, the veteran is not entitled to 
consideration of the amended regulations prior to the 
established effective date.  Green v. Brown, 10 Vet. App. 
111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 
1991) (where compensation is awarded pursuant to any Act or 
administrative issue, the effective date of such award or 
increase shall be fixed in accordance with the facts found, 
but shall not be earlier than the effective date of the Act 
or administrative issue).  In respect to a hearing loss 
disability, however, in cases where there are no exceptional 
patterns of hearing impairment, the revised regulations have 
made no substantive changes to the prior rating criteria.  
Accordingly, the revised regulations are neither more nor 
less favorable.  The evaluation is the same under either one.

Modern pure tone audiometry testing and speech audiometry 
utilized in VA audiometric clinics are well adapted to 
evaluate the degree of hearing impairment accurately.  
Methods are standardized so that the performance of each 
person can be compared to a standard of normal hearing, and 
ratings are assigned based on that standard.  The assigned 
evaluation is determined by mechanically applying the rating 
criteria to certified test results.  Lendenmann v. Principi, 
3 Vet. App. 345, 349 (1992).  Specifically, disability 
evaluations of 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 service-connected 
defective hearing, the rating schedule establishes 11 
auditory acuity levels designated from level I, for 
essentially normal acuity, through level XI, for profound 
deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (1999).  In 
situations where service connection has been granted only for 
defective hearing involving one ear and the appellant does 
not have total deafness in both ears, the hearing acuity of 
the nonservice-connected ear is considered to be normal.  38 
C.F.R. §§ 3.383, 4.14 (1999); VAOPGCPREC 32-97.  In such 
situations, a maximum 10 percent evaluation is assignable 
where hearing in the service-connected ear is at level X or 
XI.  38 C.F.R. § 4.85, Code 6100.

The veteran's service audiometric reports in May 1987 and 
June 1996 do not show a left ear hearing loss meeting the 
criteria of 38 C.F.R. § 3.385.  However, in October 1997, his 
left ear hearing loss met the criteria to be considered a 
disability under VA regulations, with an auditory threshold 
of 45 at 4000 Hertz.  With a puretone average of 21 and 
speech recognition of 96 percent, Table VI of 38 C.F.R. 
§ 4.85 assigns a designation of Level I to the hearing in the 
left ear.  Since his right ear is not service connected, it 
is considered to be "normal" at Level I.  Under Table VII of 
38 C.F.R. § 4.85, Level I hearing in both ears warrants a 
noncompensable evaluation.  There is no evidence on which to 
base any other evaluation at any time during the appeal 
period.

2.  Rating Higher than 10 Percent for Psoriasis

The veteran is currently evaluated at 10 percent for 
psoriasis under 38 C.F.R. § 4.118, Diagnostic Code 7816.  
This disorder is rated by analogy to Diagnostic Code 7806, 
eczema, which provides that with ulceration or extensive 
exfoliation or crusting, and systemic or nervous 
manifestations, or an exceptionally repugnant condition, a 50 
percent evaluation is warranted.  If there is exudation or 
itching with constant extensive lesions or marked 
disfigurement, a 30 percent evaluation is warranted.  With 
exfoliation, exudation or itching, if involving an exposed 
surface or extensive area a 10 percent rating is warranted.  
The disorder is noncompensable when there is slight, if any, 
exfoliation, exudation, or itching on a nonexposed surface or 
small area.  

The veteran's service medical records document treatment for 
psoriasis over a long period of time.  It has involved his 
hands, fingers, elbows, shoulders, back, and knees.  On VA 
examination in December 1997, changes of the skin on the 
chest and the back were noted to have disappeared with 
treatment.  Examination did reveal typical psoriatic changes 
on his fingers, hands, and both shoulder areas, with a few 
spots on the abdomen and both knees.  None of the lesions 
were bleeding or cracked.  

Since the veteran has not been noted to have exudation, 
constant itching, extensive lesions, or marked disfigurement, 
his disability does not meet the criteria for a 30 percent 
disability evaluation.  Accordingly, there is no basis for a 
rating higher than 10 percent at any time since the initial 
grant of service connection.

In regard to both of the veteran's claims for higher 
evaluations, the Board has also considered the applicability 
of the reasonable doubt doctrine, but finds that, since there 
is no approximate balance of positive and negative evidence 
with respect to any of these issues, the doctrine is not 
applicable.  38 U.S.C.A. § 5107(b).  


ORDER

Service connection for a right ear hearing loss is denied.  

A compensable evaluation for a left ear hearing loss since 
the initial grant of service connection is denied.  

An evaluation in excess of 10 percent for psoriasis since the 
initial grant of service connection is denied.


REMAND

For the application of the rating schedule, accurate and 
fully descriptive medical examinations are required.  Each 
disability, therefore, must be considered in relation to its 
history.  38 C.F.R. § 4.1 (1999).

The October 1997 VA examiner recorded an inaccurate history 
regarding the veteran's left thumb, right thumb, and left 
ankle disabilities.  In particular, the examiner noted 
fractures to all joints involved.  Service medical records 
reflect a chip fracture only of the left thumb.  The examiner 
diagnosed arthritis of the metacarpal phalangeal joints, 
without saying which metacarpal phalangeal joints, and the 
diagnosis was apparently without benefit of x-rays, as no x-
rays of the hands were ordered.  There were no examination 
findings relating to the left or right thumb.  The examiner 
ordered ankle x-rays, which are not of record, and the 
examiner diagnosed status post infraction (i.e., fracture) of 
the ankle, which is, as noted above, unsupported in the 
service medical records.

It is incumbent upon the rating board to return examination 
reports as inadequate for evaluation purposes if a diagnosis 
is not supported by findings on the report or if the report 
does not contain sufficient detail.  See 38 C.F.R. § 4.2 
(1999).  The October 1997 VA examination report contains 
diagnoses based on unsupported history and unaccompanied by 
physical findings or x-ray studies.  The RO evaluated the 
veteran's service connected left and right thumb disabilities 
as ankylosis, notwithstanding that the examination report 
provided no information relevant to the criteria for 
evaluating ankylosis (see 38 C.F.R. § 4.71a, notes regarding 
classifying the severity of ankylosis of individual fingers).

Whether the veteran has had any treatment for any of these 
conditions since his separation from service should be 
determined, and his medical records of such treatment should 
be associated with the claims file.

Accordingly, as the Board lacks sufficient information to 
evaluate the bilateral thumb disabilities or the left ankle 
disability, the claims must be remanded for the following:

1.  Ask the veteran for the names and 
addresses, and for appropriate releases, 
for any medical care provider from whom 
he has received treatment for his left or 
right thumb disorders or his left ankle 
disorder since November 1996.  Request 
the veteran's actual treatment records 
from any such provider.  If VA treatment 
is indicated, obtain his VA treatment 
records and associate them with the file.  
If any request for private treatment 
records is unsuccessful, notify the 
veteran and his representative, so that 
he may present the records himself, in 
keeping with his ultimate responsibility 
to present evidence in support of his 
claim.  38 C.F.R. § 3.159(c) (1999).  
Associate all records received with the 
claims file.

2.  Obtain and associate with the claims 
file the report of any x-rays taken in 
connection with his December 1997 VA 
examination.

3.  Schedule the appellant for a VA 
examination of his left and right thumb 
and his left ankle.  The examiner is to 
review the claims file, including the 
service medical records, to assure that 
the examiner is familiar with the history 
of injury and type of injury shown in the 
service medical records to these joints.

With respect to each joint in issue, the 
examiner is asked to provide ranges of 
motion, stating what normal range of 
motion would be.  If there is any 
limitation of motion, all objective 
indications of pain, muscle spasm, or 
swelling are to be noted.  Whether any 
addition functional loss is likely with 
pain on use or during flare-ups should be 
indicated, and the extent of such 
limitation should be stated.  Whether 
there is ankylosis of any joint is to be 
addressed, and, with respect to the 
thumbs, if there is ankylosis, whether 
motion is possible to within two inches 
of the median transverse fold of the palm 
is to be stated.  If a diagnosis of 
arthritis of any joint in issue is given, 
the examiner should state the basis for 
the diagnosis and whether it is related 
to the in-service injury.  All necessary 
tests should be done, and the results 
should be reviewed prior to completion of 
the examination report.

4.  Thereafter, the RO should review the 
claims folder and examination reports.  
If the report is inadequate, return it 
for correction of any inadequacy before 
proceeding.  Then, readjudicate the 
claims of entitlement to higher 
evaluations on appeal from the initial 
grant for the left and right thumb 
disorders and the left ankle disability.  
Consideration should be given to whether 
staged ratings are appropriate.  If any 
benefit on appeal remains denied, provide 
the veteran and his representative a 
supplemental statement of the case, and 
allow an appropriate period for response.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further appellate 
consideration, if appropriate.  The veteran need take no 
further action until he is further informed.  The purpose of 
this REMAND is to obtain additional medical information.  No 
inference should be drawn regarding the final disposition of 
the claim as a result of this action.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	J. SHERMAN ROBERTS
	Member, Board of Veterans' Appeals