BVA9506054 DOCKET NO. 92-06 910 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a disability of the left wrist. 2. Entitlement to service connection for bilateral defective hearing. 3. Entitlement to service connection for a disability of the left ankle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ripley P. Schoenberger, Counsel INTRODUCTION The veteran served on active duty from July 1954 to May 1956, and from December 1990 to May 1991. He has also been credited with various periods of duty with the National Guard. This appeal arises from an October 1991 rating decision by the RO. By a decision of February 1994, the Board of Veterans' Appeals (Board) remanded the case for development of the evidence. The case has been returned to the Board for appellate review. One of the issues developed and certified for appellate review was entitlement to service connection for heart disease. However, by a rating decision of July 1994, the RO granted service connection for heart disease and assigned a 30 percent evaluation. The veteran has not disagreed with the 30 percent evaluation assigned. Thus, this appeal is limited to the issues listed on the title page. The issue of entitlement to service connection for bilateral defective hearing will be the subject of the remand portion of this appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that prior to Desert Storm he did not have any problem with his left ankle. During Desert Storm he engaged in a lot of running and jumping off trucks and injured his left ankle. He also maintains that he injured his left wrist during Desert Storm. Thus, since both the disability of his left wrist and left ankle began during a period of active duty, his appeal should be allowed. 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 favors the claim for service connection for a disability of the left wrist and a disability of the left ankle. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal on the issues of service connection for a disability of the left wrist and service connection for a disability of the left ankle has been obtained. 2. The veteran injured his left wrist prior to service, but it became symptomatic during Desert Storm. 3. The currently demonstrated traumatic arthritis of the left ankle probably began during Desert Storm. CONCLUSION OF LAW The veteran's traumatic arthritis of the left ankle and chronic sprain of the left wrist were either incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.306, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical On an examination, conducted in January 1991, it was reported that there was slight tenderness to palpation in the left wrist. In February 1991, the veteran stated that he had fractured his left wrist 12 months previously. He was driving pickets and reinjured his wrist. X-ray films of the left wrist, taken in March 1991, were interpreted as within normal limits. In an undated note, it was reported that the veteran complained of pain in his left wrist. He reported that he had sustained a hairline fracture one year previously. The assessment was post-traumatic arthritis of the left wrist. The service medical records are devoid of any complaints or treatment for injury of the left ankle. On a VA examination, conducted in July 1991, it was reported that the veteran described a strain/pain-type injury to the left wrist. His left wrist had been placed in a splint and he wore the splint at all times except when sleeping. He described chronic pain and swelling in the left wrist that was aggravated by almost any increased use of the hand. He was right-hand dominant. He also reported that he had developed the onset of pain and swelling of the left ankle approximately one month before his discharge from Desert Storm. There was no history of injury. He had not sought nor received medical attention secondary to the ankle condition. He described chronic pain and swelling of the ankle that was aggravated by activity, such as prolonged standing or walking. He also had pain at night while in bed. The physical examination revealed that the veteran walked with a slight antalgic gait on the left. Examination of the left wrist revealed 70 degrees of dorsiflexion and 90 degrees of palmar flexion. There was significant pain on the extremes of motion, and there was equivocal swelling of the left wrist with significant tenderness to palpation over the area of the ulnar styloid. There was 20 degrees of ulnar deviation and 20 degrees of radial deviation. The veteran was able to make a satisfactory fist with both hands; however, the grip strength on the right was 5 out of 5, but the grip strength on the left was only 3.5 out of 5, secondary to complaints of pain. Examination of the left ankle revealed 5 percent of dorsiflexion and 45 percent of plantar flexion, bilaterally. There appeared to be slight degenerative enlargement of the left ankle. There was no particular tenderness to palpation. He performed a satisfactory heel and toe walk although he did demonstrate a limp on the left. He was able to perform a full squat and arise again. He had a satisfactory ability to walk on the inner and outer borders of the feet. X-ray films of the left wrist were interpreted to show no osseous or articular abnormalities. X-ray films of the left ankle demonstrated no fractures or dislocations. The diagnosis was residuals of a left wrist injury and painful left ankle with probable early degenerative disease. In January 1992, the veteran was examined by C. W. Emerson, Jr., M.D. Dr. Emerson stated that the veteran gave a medical history of fracturing his left wrist 2 1/2 years ago, but reinjuring his wrist while in the Army in early 1991. Examination revealed marked tenderness of the dorsoulnar aspect of the ulnar styloid. There was 45 degrees of active extension and 55 degrees of active flexion. There was 20 degrees of radial deviation but only 5 to 10 degrees of ulnar deviation. The ulnar deviation was limited by pain. There was slight edema in the area distal to the areas of tenderness. Examination of the left ankle revealed slight edema of anterior and inferior aspect of the lateral malleolus. X-ray films of the left wrist showed normal intercarpal spaces with maintenance of the radiocarpal joint space. There was smooth articular cartilage and there appeared to be no degeneration of the radiolunar joint. No soft tissue calcification was seen in the area of the styloid process, and there was normal alignment of the carpal bones. X-ray films of the left ankle showed smooth interarticular cartilage with minimal joint narrowing. There was a small bone fragment present which was distal to the medial malleolus. The assessment was that the veteran had tendinitis of the tendons adjacent to the styloid process and a chronic sprain of the lateral supporting ligament of the left ankle. On a VA examination, conducted in August 1994, the veteran stated that his left ankle had been swelling and aching since Desert Storm. He reported he could not recall a specific injury, but stated he had been doing a lot of jumping off of vehicles. He reported that walking made his left ankle ache and his left ankle hurt at night. The physical examination revealed that the veteran had a consistent short weight-bearing limp on the left. He was able to get on his toes and heels, but had more difficulty on the left. The ankle was stable but the distal femur was more prominent. There was tenderness and he complained of pain both with 20 degrees' inversion and 10 degrees' eversion. X-ray films of both ankles were interpreted to show degenerative changes in both ankles. The diagnosis was traumatic arthritis of the left ankle by history and examination. II. Disability of the Left Wrist. The Board finds that the veteran's claim for service connection for a disability of the left wrist is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran's claim is plausible. Clear and unmistakable evidence (obvious or manifest) 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 to 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 C.F.R. § 3.306(b). The evidence shows that the veteran injured his left wrist prior to Desert Storm. However, during Desert Storm, he reinjured his left wrist. On the VA examination performed shortly after the veteran's release from Desert Storm, the veteran complained of pain in his left wrist and there was swelling and significant tenderness in the left wrist. Also, there was weakness of the left hand strength. In addition, Dr. Emerson diagnosed the veteran as having tendinitis of the left wrist. In this case, the Board is of the opinion that the veteran's preservice injury to the left wrist increased in severity during Desert Storm. Thus, service connection for a disability of the left wrist is warranted. III. Disability of the Left Ankle. The Board also finds that the veteran's claim for service connection for disability of the left ankle is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The service medical records are devoid of any reference to an injury to the left ankle. However, on the examination performed by the VA, shortly after the veteran's release from Desert Storm, he reported that he had developed pain and swelling in his left ankle during Desert Storm. After examination, the diagnosis was probable early degenerative disease. The veteran continued to complain of left ankle pain, and X-ray films taken by the VA in 1994, were interpreted to show traumatic arthritis of the left ankle. Thus, the evidence shows that the veteran developed pain and swelling in his left ankle during the latter part of Desert Storm, and subsequent X-ray films were interpreted to show traumatic arthritis. Thus, the treatment history confirms, to a certain extent, the veteran's statement that he injured his left ankle in service. In the Board's opinion, the evidence in this case supports the grant of service connection for traumatic arthritis of the left ankle. ORDER Service connection for a disability of the left wrist is granted. Service connection for traumatic arthritis of the left ankle is granted. REMAND The audiological portion of the January 1991 entrance examination for service in Desert Storm is not of record. However, on an audiological examination, performed in October 1986 while the veteran was a member of the National Guard, it was reported that the pure tone air conduction thresholds were 10, 10, 20, 15, 55, and 55 decibels in the right ear and 20, 20, 15, 60, 60, and 45 decibels in the left ear at 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hertz, respectively. On an audiological examination, performed in February 1991 while serving in Desert Storm, the pure tone air conduction thresholds were reported as 15, 15, 15, 70, 70, 80 decibels in the left ear and 15, 15, 15, 35, 70, and 60 decibels in the right ear at 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hertz, respectively. On an audiological examination, conducted by the VA in July 1991, the pure tone air conduction thresholds were reported as 10, 10, 35, and 65 decibels in the right ear and 10, 10, 55, and 65 decibels in the left ear at 1,000, 2,000, 3,000, and 4,000 hertz, respectively. The speech discrimination in the right ear was 96 percent and the speech discrimination level in the left ear was 92 percent. In the case of Hensley v. Brown, 5 Vet.App. 155 (1993), the United States Court of Veterans Appeals stated that in adjudicating a claim for aggravation, the VA's reasons and bases must include an explanation of the criteria used to determine whether a condition increased in severity during service, and an explanation of how those criteria were applied in a particular claim. In this case, the October 1991 rating decision denying service connection for a hearing loss does not contain an explanation of the criteria used or an explanation of how the criteria were applied. Thus, the guidelines set forth in Hensley have not been complied with. Consequently, the case must be REMANDED for additional development. 1. The RO should make the claims folder available for review by an ear, nose and throat specialist to ascertain the nature and likely etiology of the veteran's hearing loss. Complete audiometric testing should be done in this regard. Based on her/his review, the examiner should render an opinion as to the medical probability that the veteran's defective hearing increased in severity beyond natural progress during Operation Desert Shield/Desert Storm. The opinion should contain complete reasons and bases for the conclusions reached. 2. When the requested development has been completed, the RO should review the veteran's claim and take appropriate procedural action. If the decision remains adverse to the veteran, then he and his representative should be provided with a supplemental statement of the case. They should be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. STEPHEN L. WILKINS 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).