Citation Nr: 0007855 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-09 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for bilateral trench foot, currently evaluated as 10 percent disabling for each foot. 2. Entitlement to compensation pursuant to 38 C.F.R. § 1151 for hearing loss claimed as incurred as a result of Department of Veterans Affairs medical treatment. 3. Entitlement to service connection for tinnitus. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to direct service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from February 1943 to September 1945. This matter came before the Board of Veteran's Appeals (Board) on appeal from a rating decision in which the regional office (RO) denied a claim for compensation pursuant to 38 U.S.C.A. § 1151 for hearing loss claimed as being the result of Department of Veterans Affairs (VA) medical treatment. The veteran has also perfected an appeal of a rating decision in which the RO denied service connection for tinnitus. He has also continued to assert that he is entitled to service connection for hearing loss. This matter is remanded as discussed below. The veteran also filed a NOD with the RO's assignment of an increased rating of 10 percent for trench feet. He was provided a statement of the case (SOC) but did not file a timely substantive appeal. Therefore, the claim for an increased rating for trench feet will be dismissed. In a VA Form 9 filed in June 1998, the veteran identified as issues on appeal his claim for service connection for hearing loss and an increased rating for trench foot. He also indicated his desire to have a hearing before a member of the Board at the local VA office. In a Form 9 filed in March 1999, the veteran identified as issues on appeal his claims for service connection for hearing loss and tinnitus and indicated that he did not desire a hearing before a member of the Board. Therefore, the Board deems as withdrawn the veteran's request for a hearing before a member of the Board. FINDINGS OF FACT 1. In a May 1996 rating decision of which the veteran was notified by letter on May 30, 1996, the RO awarded an increased rating of 10 percent for trench feet. 2. In November 1996, the appellant filed a notice of disagreement (NOD) concerning the rating assigned by the RO for trench feet. 3. On December 2, 1998, the RO issued a supplemental statement of the case concerning the rating assigned for trench feet. 4. The veteran did not file a substantive appeal as to the issue of the rating assigned for trench foot within 60 days of the December 2, 1998, supplemental statement of the case or within one year of the notice of the May 1996 rating decision. 5. The record contains no competent medical evidence or opinion that the veteran has current disability from tinnitus. 6. The record contains no competent medical evidence of a nexus between the veteran's claimed current disability from tinnitus and any disease or injury incurred during his active military service. 7. The veteran was diagnosed to have deafness from otosclerosis in August 1952. 8. The veteran underwent a left stapedectomy at a VA medical center in May 1962 and a right stapedectomy in December 1962, also at a VA medical center. 9. The record contains no competent evidence that the veteran's disability from hearing loss worsened as a result of VA medical treatment. CONCLUSIONS OF LAW 1. There is no appeal pending before the Board concerning the issue of entitlement to an increased rating for trench feet. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (1999). 2. The claim of entitlement to service connection for tinnitus loss is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of entitlement to compensation benefits for additional disability from aggravation of a hearing loss, claimed as incurred as a result of medical treatment at a VA medical facility, is not well grounded. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Dismissal of Claims Appellate review of a RO decision is initiated by a timely filed NOD and completed by a timely filed substantive appeal after a SOC is furnished. 38 U.S.C.A. § 7105(a) (West 1991), 38 C.F.R. § 20.200 (1999). An NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (1999). A substantive appeal consists of a properly completed VA Form 9 "Appeal to the Board of Veterans' Appeals," or correspondence containing the necessary information. 38 C.F.R. § 20.202 (1999). A substantive appeal must be filed within 60 days of the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (1999). A substantive appeal postmarked prior to the expiration of the applicable time period will be accepted as timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305 (1999). In November 1996, the veteran filed a NOD with the May 1996 rating decision which awarded an increased rating of 10 percent for trench feet. On December 2, 1998, the RO provided him with a supplemental SOC that addressed such issue. Thereafter, the veteran did not file a VA Form 9 or other written document that sufficed as a substantive appeal regarding his claim for an increased rating for trench foot. The VA Form 646 filed by his accredited representative in April 1999 was not timely, as it was not filed within one year of the May 1996 rating decision or within 60 days of the December 2, 1998 supplemental SOC. The Board finds that the veteran did not timely file a substantive appeal on the issues of entitlement to an increased rating for trench feet. The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter referred to as the Court) has held that it was proper for the Board to dismiss the appeal of a veteran who did not file a timely substantive appeal and did not request prior to the expiration of the time limit for such filing an extension of time within which to file a substantive appeal. See Roy v. Brown, 5 Vet. App. 554 (1993). The Court opined that the Secretary was correct in arguing that the "formality" of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a NOD and a formal appeal. Id. at 555. The Board concludes that there is no appeal pending before it concerning the issue of entitlement to an increased rating for trench feet. II. Service Connection for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have 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) (West 1991). A well- grounded claim is a plausible claim which is meritorious on its own or is capable of substantiation. See Murphy v. Derwinski, Vet. App. 78, 81 (1990). The three elements of a well-grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) 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, (3) a nexus between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. For the reasons discussed below, the Board finds that the veteran's claim of entitlement to service connection for tinnitus is not well grounded. Although the RO did not specifically state that it denied the veteran's claim for service connection for tinnitus on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet. App. 384 (1995) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection for tinnitus on the merits, the Board concludes that denying the claim because it is not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of the claim included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claims are well grounded. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. Where a claim is not well grounded it is incomplete, and VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in its notice of rating decision dated in December 1998, and in the statement of the case provided to him in March 1999. The discussion below informs the veteran of the types of evidence lacking, and which he should submit for a well- grounded claim. Unlike the situation in Robinette, in this case the veteran has not advised VA of the existence of any particular evidence which, if obtained, would render his claims well-grounded. The veteran contends that he has current disability from tinnitus as a result of exposure to weapons noise during his active military service. His service medical records do not show that he had complaints, diagnoses, or treatment for tinnitus. The veteran reported symptoms including occasional tinnitus when he was examined by a private physician in August 1952. The physician reported a diagnosis of otosclerosis. The record contains no other medical records which contain any reference to tinnitus. There is no medical evidence that the veteran has current diagnosed disability from tinnitus. Nor does the record contain any competent medical evidence or opinion which indicates a relationship between the veteran's claimed disability from tinnitus and any disease or injury he incurred during his active military service. All three elements of the Caluza analysis are unsatisfied. Therefore, the Board concludes that the claim of entitlement to service connection for tinnitus is not well grounded. III. Compensation for Hearing Loss Pursuant to 38 U.S.C.A. § 1151 The Board notes that Section 422(a) of Public Law 104-204, 110 Stat. 2874, 2926 (1996) amended 38 U.S.C.A. § 1151; however, this amendment was effective for claims filed on or after October 1, 1997. The claim that forms the basis for this appeal was filed in November 1996. Thus, this amendment, as well as subsequent amendments to the regulations based thereupon, do not apply to the claim now before the Board on appeal. In pertinent part, 38 U.S.C.A. § 1151 prior to its amendment provided that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . ., or as a result of having submitted to an examination . . ., and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability . . ., disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation, or death were service connected. The regulation implementing 38 U.S.C.A. § 1151 was amended several times between March 1995 and the present: in March 1995, effective from November 25, 1991; in May 1996, effective from November 25, 1991; and in January 1999, effective from January 8, 1999. In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the Court held that, when there has been a change in an applicable stature or regulation after a claim has been filed but before a final decision has been rendered, VA must apply the version of the statute or regulation which is most favorable to the claimant, unless Congress has expressly provided otherwise or has authorized VA to provide otherwise and VA has done so. Accordingly, it is necessary to determine which version of the regulation is most favorable to the claimant. The General Counsel of VA, in a precedent opinion, has held that the determination of whether an amended regulation is more beneficial to a claimant than the prior provisions must be made on a case-by- case basis. VAOPGCPREC 11-97 (O.G.C. Prec 11-97). According to the cited opinion, when there is a pertinent change in a regulation while a claim is on appeal to the Board, the Board must take two sequential steps. First, the Board must determine whether the amended regulation is more favorable to the claimant than the prior regulation. Second, the Board must apply the more favorable provision to the facts of the case. None of the regulatory revisions affect the outcome of this case, in that they do not affect that requirement that the injury or aggravation of an injury be a result of VA hospitalization, medical or surgical treatment, vocational rehabilitation, or examination. Therefore, the Board will apply the current regulation, 38 C.F.R. § 3.358, which provides in pertinent part: (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. . . . (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progression of disease or injuries for which the . . . hospitalization . . . was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: . . . (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. The RO has adjudicated the claim under 38 U.S.C.A. § 1151 and the amended 38 C.F.R. § 3.358(c). This amended rule deletes the fault or accident requirement in section (c)(3), but does not alter the requirement in sections (c)(1) and (2) that additional disability is "proximately due" to VA action. It appears that the RO denied the claim primarily on the grounds that no medical evidence indicated a link between the veteran claimed increased in hearing loss disability and the surgical procedures he underwent a VA medical center in May and December 1962. In Jones. V. West, 12 Vet. App. 460 (1999), the Court held that the requirements for a well-grounded claim under 38 U.S.C.A. § 1151 are, paralleling those generally set forth for establishing other service connection claims, as follows: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. In this case, the claims file contains no competent evidence that the veteran's alleged increase in disability due to aggravation of a pre-existing hearing loss disorder resulted from VA hospitalization, medical, or surgical treatment. Therefore, the Board concludes that he has not filed a plausible claim. Although the RO did not specifically state that it denied this claim on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, supra. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, supra, and VAOPGCPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. In this case, the RO adjudicated the claim under 38 U.S.C.A. § 1151 and the amended 38 C.F.R. § 3.358(c). However, the decision was not based on lack of fault by VA. It appears that the RO denied the claim essentially on the grounds that the medical evidence did not show a causal relationship between the veteran's surgical treatment at a VA facility and his claimed worsening loss of hearing. The veteran was diagnosed to have deafness due to otosclerosis in 1952. In May 1962 he was hospitalized at a VA facility and underwent a left stapedectomy. His postoperative course was uneventful. The hospital summary indicated that he was cautioned that his hearing would be decreased shortly after the operation for two to three weeks. The reported diagnosis was otosclerosis conduction deafness with fixation of stapes. The veteran was hospitalized again at a VA facility in December 1962. The interim summary indicated that that the operation for the otosclerosis of the left ear had been successful. He underwent a right stapedectomy with prosthesis. His postoperative course was benign and he was discharged two days after the surgery. The diagnosis was otosclerosis. The record contains no more recently dated medical evidence pertinent to the claim for hearing loss than the records of the VA treatment in 1962. Thus, the record contains no competent medical evidence that the veteran's hearing loss has worsened, or that such worsening is proximately due to the VA medical and surgical treatment and is not a natural progression of the hearing loss the veteran had prior to such treatment. Therefore, the Board concludes that the claim for compensation pursuant to 38 U.S.C.A. § 1151 for additional disability from hearing loss, claimed as being aggravated by VA hospitalization, medical or surgical treatment, is not well ground. The RO informed the appellant of the necessary evidence in its notice of rating decision dated in April 1998, and in the June 1998 statement of the case. The discussion in this decision informs the veteran of the types of evidence lacking, and which he should submit for a well-grounded claim. Unlike the situation in Robinette, in this case the veteran has not advised VA of the existence of any particular evidence which, if obtained, would render his claim well grounded. ORDER The claim of entitlement to an increased rating for trench feet is dismissed. Service connection for tinnitus is denied. Entitlement to compensation benefits under 38 U.S.C.A. § 1151, for additional disability from aggravation of hearing loss claimed as incurred as a result of surgical treatment at a VA medical facility, is denied. REMAND In December 1995, the veteran made a claim for direct service connection for hearing loss. In a February 1996 letter, the RO informed him that his claim could not be reopened without the submission of new and material evidence, as the claim had previously been denied by a rating decision which had become final. In a statement received by the RO on November 1, 1996, and in several statements thereafter, the veteran indicated that he disagreed with the denial of direct service connection for hearing loss. His statement dated October 30, 1996, however, did not refer to the February 1996 letter; it only referred to a June 4, 1996 letter that did not concern the question of entitlement to service connection for hearing loss. The Court has held that when an NOD is filed, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Alternatively, if the RO has a question as to the timeliness and/or adequacy of the NOD, or has determined that the veteran has not filed a timely and/or adequate NOD with its denial of service connection for hearing loss - or the determination that new and material evidence has not been submitted to reopen such a claim - that is an appealable issue of which the claimant should be so informed and/or for which an administrative appeal should be taken by the RO. See 38 C.F.R. §§ 19.27, 19.28, 19.33, 19.34 (1999). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following action: If the RO has received what is a timely and adequate NOD concerning whether the claim for service connection for hearing loss has been reopened, it should provide the veteran and his representative a SOC that conforms with the requirements of 38 U.S.C.A. § 7105(d)(1) (West 1991), in particular, one that provides the veteran the law and regulations pertaining to its decision not to reopen the veteran's claim for direct service connection for hearing loss; a discussion of how such laws and regulations affect the RO's decision; and a summary of the reasons for such decision. The veteran and his representative must be given an opportunity to respond to the SOC. Alternatively, if the RO has any question as to the timeliness and/or adequacy of the NOD, it should initiate an administrative appeal; if the RO has determined that the veteran has not filed a timely and/or adequate NOD, it should so inform the veteran and give him notice of his appellate rights concerning that determination. Thereafter, the case should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The Board notes, however, that an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (1999). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. 38 C.F.R. § 20.202 (1999). 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. MARY GALLAGHER Member, Board of Veterans' Appeals