Citation Nr: 0003626 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-03 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Determination of a proper initial rating for bilateral hearing loss, currently evaluated as zero percent disabling. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a cardiovascular condition, to include chest pain and residuals of a myocardial infarction. 4. Entitlement to service connection for gouty arthritis of the feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from November 1977 to December 1988. His appeal on the tinnitus issue comes before the Board of Veterans' Appeals (Board) from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. His appeal on the other issues ensues from a March 1997 rating decision of the RO in St. Louis, Missouri. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran has level I hearing acuity bilaterally. 3. The veteran has not submitted competent medical evidence of a nexus between his tinnitus and his period of active service. 4. The veteran has not submitted competent medical evidence that he currently suffers from a cardiovascular condition. 5. The veteran has not submitted competent medical evidence of a nexus between his gouty arthritis of the feet and his period of active service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.85, Table VI, Diagnostic Code 6100 (1999). 2. The veteran's claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran's claim of entitlement to service connection for a cardiovascular condition, to include chest pain and residuals of a myocardial infarction, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991) 4. The veteran's claim of entitlement to service connection for gouty arthritis of the feet is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral hearing loss The veteran has contended that he has had decreased hearing in both ears as the result of his military service. He reports his hearing problems stem from his military work as a mechanic on Bradley Fighting Vehicles. The Board acknowledges the veteran's contention; however, the preliminary question is whether he has submitted a well- grounded claim, and if so, if the VA has adequately assisted him pursuant to 38 U.S.C.A. § 5107 (West 1991). Considering the veteran's dissatisfaction with his initial noncompensable evaluation for bilateral hearing loss, the Board finds his claim well grounded. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Furthermore, the Board is satisfied that the RO has obtained all relevant evidence necessary for an equitable disposition of this appeal; thus, no further assistance to the veteran is necessary. In accordance with 38 C.F.R. §§ 4.1, 4.2, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board concludes that this case presents no evidentiary considerations, except as noted below, which warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disabilities adversely affect his ability to function under the ordinary conditions of daily life, and the assigned evaluation is based, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that, where there is a question as to which of two evaluations is to 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. Furthermore, because the veteran appealed his initial rating for bilateral hearing loss, the rule from Francisco v. Brown, 7 Vet. App. 55 (1994), that the present level of disability is of primary importance, is not applicable. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 125. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999), including the rating criteria for evaluating a hearing loss disorder. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the VA must apply the regulatory version that is more favorable to the veteran. 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. Rhodan v. West, 12 Vet. App. 55 (1998); see also 38 U.S.C.A. § 5110(g). Therefore, the Board must evaluate the veteran's claim for an increased rating from June 10, 1999, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The new regulations were not in effect when the March 1997 rating decision was made, and the RO has not considered the new regulations. Also, the veteran has not been given notice of the new regulations. However, it is not necessary to remand this claim because he is not prejudiced by the Board's consideration of the new regulations in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). The amended regulations did not result in any substantive changes relevant to this appeal. Essentially, the old and new regulations for evaluating a hearing loss disorder are identical. See 64 Fed. Reg. 25202 (May 11, 1999) (discussing the method of evaluating hearing loss based on the results of pure tone audiometry results and the results of a controlled speech discrimination test and indicating that there was no proposed change in this method of evaluation). The Board observes further that the explanatory information accompanying the regulatory changes to the criteria for evaluating audiological disabilities specifically indicates that, except for certain "unusual patterns of hearing impairment," the regulatory changes do not constitute liberalizing provisions. Id. at 25204. In this case, neither rating criterion can be more favorable to the veteran's claim because they are identical in this case. The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85(a) and (d), as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b) and (e), as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). The RO service connected the veteran's left ear hearing loss in March 1997 and assigned a noncompensable evaluation under DC 6100. The veteran's right ear hearing loss was service connected by a January 1999 Hearing Officer's decision and the previously assigned noncompensable evaluation was continued. According to a VA audiogram report dated in March 1996, the veteran's speech recognition score was 96 percent in his right ear and 100 percent in his left ear. His pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 40 55 LEFT 20 15 20 45 60 His average pure tone threshold in his right ear was 34 and the average in his left ear was 35. The examiner reported that the veteran's decreased hearing in the right ear had onset 10 years prior to the examination. The examiner did not indicate when any left ear hearing loss had onset. The examiner further reported that "pure tone test results indicate hearing within normal limits from 250 to 2000 Hertz, dropping to a moderate sensorineural hearing loss at 3000 to 8000 Hertz bilaterally." The veteran's speech discrimination ability was excellent at comfortable listening levels bilaterally. The examiner nevertheless thought that the veteran was a borderline candidate for amplification for the right ear. Although the examiner in March 1996 recommended that the veteran undergo audiograms annually, those reports are not associated with the claims file. However, based on the March 1996 audiogram and the corresponding medical opinion, the Board concludes that the veteran has level I hearing acuity bilaterally. See 38 C.F.R. § 4.85, Table VI. In light of these numeric designations, noncompensable evaluations are warranted for the veteran's hearing loss bilaterally under 38 C.F.R. § 4.85, Table VI. Apparently the veteran's hearing has deteriorated somewhat since his period of active service, but his hearing loss is still noncompensable. The Board recognizes the veteran's contention that he may need hearing aids, and this may be so, but based on the documented level of hearing acuity, the veteran's hearing deficit is not of such severity as to warrant a compensable evaluation under the applicable schedular standards. In reaching its decision, the Board considered the complete history of the disability at issue, as well as the current clinical manifestations and the effect the disability has on the earning capacity of the veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41. The Board also considered the applicability of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b), but because there was no approximate balance of positive and negative evidence on record, reasonable doubt could not be resolved in the veteran's favor. Tinnitus The veteran has also claimed that part of his hearing problem involves tinnitus in both of his ears. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467- 68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, he must produce medical or, in some instances, lay evidence of an in- service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Epps, 126 F.3d at 1468-69. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). The veteran reported that he had occasional tinnitus in both ears during the March 1996 examination. He had no dizziness and he said that the tinnitus affected his hearing and it was high-pitched in nature when present. The examiner diagnosed tinnitus, but he did not offer a nexus opinion as to the veteran's tinnitus and his period of active service. During the veteran's RO hearing in August 1998, he testified that he worked on Bradley Fighting Vehicles during his entire period of military service, and that this work was at the root of his tinnitus. However, the Board must point out that the veteran, as a layperson, is not medically qualified to offer an opinion on a matter requiring a medical determination. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Thus, his assertions are insufficient to satisfy the nexus requirement, and no other evidence of record links his tinnitus to his period of active service. Because the nexus requirement for a well-grounded claim has not been met, the veteran's claim of entitlement to service connection for tinnitus must be denied. Cardiovascular Condition The veteran has stated that he suffered a heart attack while he was on active duty. The Board has inspected the veteran's service medical records, and a radiologic examination report of the veteran's chest dated in February 1988 reflects that the veteran's chest was "normal." The clinical record also shows that an EKG was performed, but the report was undated and it did not elaborate as to the results of the test. Although there is no further evidence in the veteran's service medical records, VA regulations and practice dictate that assertions made by the veteran concerning an in-service disease are factual for the purposes of a well-grounded analysis. In this case, the veteran has asserted that at the age of 31, while stationed at Ft. Knox, Kentucky, he was evaluated in the Emergency Room for nine hours for chest pain. He states that he was diagnosed with a heart attack but was advised that he had a heart murmur. The veteran also contends that he currently suffers from some type of cardiovascular condition, but he has not submitted either competent medical evidence that he currently suffers from a cardiovascular condition or evidence of a nexus between such a cardiovascular condition and his period of active service. A VA examination report dated in March 1996 reflects that the veteran denied cardiac symptoms, particularly pain or dyspnea. An EKG was done which showed normal sinus rhythm and a rate of 77. Inferior Q-waves were noted. Chest X-ray showed no demonstrable acute pulmonary infiltrate or edema. The cardiac silhouette was slightly prominent. There was mild superior mediastinal widening. Heart sounds were regular without evidence of murmur during the examination. However, the examiner scheduled an echocardiogram to evaluate whether the veteran had cardiac valve disease because of the veteran's reports of heart problems. The echocardiogram report dated in March 1996 revealed normal LA and LV dimensions, concentric LV hypertrophy and normal LVEF of 69 percent and fractional shortening of 39 percent. There was no LV segmental wall motion abnormality, pericardial effusion, intracardiac mass, or mural thrombus. The aortic valve structure was normal and its motion appeared normal. The mitral valve had mildly thickened leaflets and its motion appeared normal. Doppler interrogation of the mitral valve revealed an E/A ratio of greater than one, indicating normal LV diastolic function. The Tricuspid valve had normal structure and its motion appeared normal. The Doppler and flow mapping failed to demonstrate aortic stenosis, insufficiency, or mitral and tricuspid regurgitation. The IVC collapsed normally during inspiration. In his summary, the examiner stated that "the echocardiogram demonstrate[d] normal cardiac function with no evidence of valvular disease." In light of these findings, the Board must conclude that the veteran has not submitted competent medical evidence that he currently suffers from a cardiovascular condition. Rather, the evidence specifically contradicts this assessment; specifically, the March 1996 echocardiogram showed that the veteran had normal cardiac function. Although he contends that he suffers from a cardiovascular condition, the veteran is a layperson and his contentions by themselves do not constitute competent medical evidence of a current disease. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, his claim of entitlement to service connection for a cardiovascular condition, to include chest pain and residuals of a myocardial infarction, is not well grounded. Gouty Arthritis of the Feet The veteran also claimed during his RO hearing that he began to have gout during his period of active service. He said his symptoms subsided when he drank large quantities of water and cranberry juice. The veteran further reported that his gouty arthritis of the feet had kept him from some jobs, and that it was extremely painful when it flared up two or three times per month. A November 1995 VA outpatient progress note shows that the veteran had gout in his right ankle, but it had subsided. A VA outpatient progress note dated in January 1996 indicates that the veteran still had gout at that time and he was told to increase his fluid intake. The March 1996 VA examination report reflects that the veteran took Indocin for symptoms of gout on a periodic basis. The report does not make further mention of this condition. A July 1996 VA outpatient progress note shows that the veteran had gout, especially with the hot weather. The examiner told him to keep up with drinking fluids, not to allow himself to become dehydrated during the summer, and to avoid alcohol. During the veteran's August 1998 RO hearing, he testified that he had suffered from gout ever since his military service, during which time he did not really seek formal medical treatment. He said the gout manifested itself in a red color, and that it was very painful to him. He further testified that it had begun to work itself into his knees. Considering the above VA outpatient progress notes, the Board is satisfied that the veteran currently suffers from gout. However, the veteran has not submitted competent medical evidence of a nexus between his gout and his period of active service. Although the VA outpatient progress notes reflect that he has gout, they do not indicate there is any relationship between his gout and his period of active service. The veteran has reported that there is a link between his gout and his period of active service, but as a layperson, without proper medical training or expertise, his contentions by themselves do not constitute competent medical evidence of a nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, the claim for entitlement to service connection for gouty arthritis of the feet is not well grounded. Because the veteran has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection, the VA is under no duty to assist him in developing the facts pertinent to those claims. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the claims well grounded. As such, there is no additional duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify him of the evidence required to complete his application for service connection for the claimed disabilities. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claims and to explain why the current attempts fail. ORDER A compensable initial rating for bilateral hearing loss is denied. Evidence of a well-grounded claim not having been submitted, service connection for tinnitus is denied. Evidence of a well-grounded claim not having been submitted, service connection for a cardiovascular condition, to include chest pain and residuals of a myocardial infarction is denied. Evidence of a well-grounded claim not having been submitted, service connection for gouty arthritis of the feet is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals