BVA9502642 DOCKET NO. 93-07 674 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for lumbosacral strain, currently rated as 10 percent disabling. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a pulmonary disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active naval service from February 1969 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 1991 by the Department of Veterans Affairs (VA) Seattle, Washington, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that an increased evaluation for his lumbosacral strain is warranted because he is required to take medication in order to relieve his pain and muscle spasms. In addition, the veteran asserts that service connection for bilateral hearing loss and a pulmonary disorder is warranted as he incurred these disorders during active service. Therefore, he requests favorable determinations by the Board. 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 supports the assignment of a 20 percent evaluation for the veteran's lumbosacral strain. It is further the decision of the Board that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for bilateral hearing loss. Lastly, it is the decision of the Board that the veteran has not submitted a well- grounded claim of entitlement to service connection for a pulmonary disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The current manifestations of the veteran's lumbosacral strain include tenderness and complaints of pain and stiffness. 3. A bilateral hearing disability was not manifested during service or within one year following separation from active service. 4. A pulmonary disorder is not currently manifested. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent for lumbosacral strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5295 (1994). 2. A bilateral hearing disability was not incurred in or aggravated by active service nor may a sensorineural hearing loss be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 3. The veteran has not submitted a well-grounded claim of entitlement to service connection for a pulmonary disorder. 38 U.S.C.A. §§ 1110, 1131, 7105 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims for entitlement to an increased evaluation for lumbosacral strain and entitlement to service connection for bilateral hearing loss within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an Increased Evaluation for Lumbosacral Strain The service medical records reveal that the veteran complained of back pain in 1982 and 1984 and was diagnosed with a pulled muscle and mild lumbar strain. In May 1985, the veteran was involved in an automobile accident and complained of recurrent low back pain on a number of occasions and was diagnosed with postural strain pain in June 1986. Although the veteran was diagnosed with resolving back pain in June 1990, he sought treatment for low back pain in July 1990. During a March 1991 VA examination, the veteran reported that he injured his back in an automobile accident in 1985, after which he was required to wear neck and back braces for one or two weeks. The veteran further indicated that he had experienced intermittent back problems since his accident and that he experienced an exacerbation of his low back pain every four to six weeks. The veteran also reported that during these exacerbations, he would take medication and use a TNS unit. Upon examination, there was a mild increase of paraspinal muscular tone in the low lumbar region but no tenderness was found. The veteran had a full range of lumbar spine motion and there were no neurological abnormalities in the lower extremities. X-rays revealed no lumbar spine abnormality. Outpatient treatment records dated in May, June, and July 1991 show that the veteran sought treatment for low back pain. No limitation of lumbar spine motion was found, but tenderness to palpation was discovered. X-rays revealed that the intervertebral disc spaces were preserved and that no spondylolysis or spondylolisthesis was present. In addition, no degenerative hypertrophic spurring could be identified. By decision in July 1991, the RO granted service connection for chronic lumbosacral strain and assigned this disorder a noncompensable evaluation. The report of an August 1991 VA examination shows that the veteran did not have any curvature abnormalities of his spine. Pressure on the right sciatic notch gave the veteran a slight sensation of pain down the right lateral thigh. His range of spinal motion was normal as was his straight leg raising and hip motion. Heel toe walk, deep tendon reflexes, great toe strength, and foot sensation were all negative. The examiner indicated that the veteran's discomfort may have been the result of right facet joint syndrome. During his November 1991 personal hearing, the veteran testified that he took medication every day in order to relieve his back pain. He further indicated that he experienced muscle spasms with severe pain that radiated to his right leg approximately every three to four months for which he took a stronger medication. In addition, the veteran indicated that he was required to sleep on a water bed and use a heating pad due to his back disorder. A March 1992 hearing officer's decision indicated that the veteran was entitled to a 10 percent evaluation for his lumbosacral strain. A March 1992 rating decision assigned such an evaluation to the veteran's disorder. During a June 1992 VA examination, the veteran reported that he experienced low back pain every morning and was no longer able to participate in sports due to this pain. In addition, the veteran noted that he was unable to stand for an extended period of time without experiencing low back pain. Upon examination, no limitation of lumbar spine motion was found. The veteran did, however, have mild tenderness in the paraspinal musculature in the low lumbar region. The examiner indicated that the veteran had mild to moderate low back strain with no evidence of radiculopathy or other complications. As previously mentioned, the RO has assigned the veteran's lumbosacral strain a 10 percent rating pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295. Such an evaluation contemplates characteristic pain on motion. The next higher evaluation, a 20 percent rating, requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. Upon review of the evidence of record, the Board concludes that a question exists as to whether a 10 or 20 percent evaluation should be assigned to the veteran's lumbosacral strain. In this regard, the Board notes that although the veteran has never manifested any limitation of lumbar spine motion, he does take medication on a regular basis, apparently experiences muscle spasms, and uses a TNS unit when necessary. In addition, the veteran's lumbosacral strain was described as producing mild to moderate impairment during the most recent June 1992 VA examination. Resolving all reasonable doubt in the veteran's favor, the Board concludes that a 20 percent evaluation most nearly approximates the veteran's current disability picture with regard to his lumbosacral strain. 38 C.F.R. §§ 4.3, 4.7. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Further, the Board finds in this case that the disability picture is not so exceptional or unusual so as to warrant an evaluation in excess of 20 percent on an extra-schedular basis. It has not been shown that the veteran's lumbosacral strain has caused marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). II. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1133; 38 C.F.R. § 3.303. In impaired hearing cases, service connection shall not be granted if the pure tone thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz (Hz) are all less than 40 decibels (dB); the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition is 94 percent or better. 38 C.F.R. § 3.385. In addition, where sensorineural hearing loss becomes manifest to a degree of ten percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Approximately five months prior to his entrance into active service, the veteran was afforded a physical examination that included audiological testing. Pure tone thresholds, in decibels, for the frequencies of 500, 1000, 2000, and 4000 Hz, respectively, were 0, -5, 0, and 5 in the right ear, and 5, -5, - 5, and 5 in the left ear. The report of an audiological examination that was conducted in March 1969, shortly following the veteran's entrance into active service, indicates similar results. In May 1990, prior to being separated from active service, the veteran was afforded his final audiological test. Pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz, respectively, were 10, 10, 10, 10, and 25 in the right ear, and 15, 10, 15, 25, and 35 in the left ear. The reported decibel loss ranges from a low of 10 dB to a high of 30 dB with the most common loss being 10 dB. This clearly represents an increase in the hearing impairment of both ears. The report of a March 1991 VA audiological examination confirms the veteran's hearing loss. Pure tone thresholds, in decibels, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively, were 10, 5, 10, 15, and 20 in the right ear, and 15, 15, 20, 35, and 35 in the left ear. The veteran's speech recognition ability was 94 percent bilaterally. The report of this examination indicates that the veteran's hearing acuity was within normal limits under VA criteria. During his November 1991 personal hearing, the veteran testified that he had 15 years of submarine duty during service and that he was continuously exposed to noise while aboard submarines. The veteran further stated that he did not wear any ear protection during his first ten years of service. The report of an October 1991 audiological examination conducted by Lynn E. Keen, MSPA, reveals that the pure tone thresholds, in decibels, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively were 5, 5, 10, 5, and 30 in the right ear, and 5, 10, 20, 25, and 40 in the left ear. The veteran was noted to have a mild loss of hearing sensitivity at the higher frequencies, particularly in the left ear. The evidence of record indicates that service connection for bilateral hearing loss is not warranted. In this regard, the Board notes that although the veteran's hearing ability did decrease during active service, the reports of the May 1990 service medical examination, the March 1991 VA audiological examination, and the October 1991 audiological examination conducted by Lynn E. Keen reveal that, at the relevant frequencies, the veteran's hearing acuity and speech recognition met the criteria as set forth in 38 C.F.R. § 3.385. Therefore, the veteran's hearing impairment is not of a severe enough nature to constitute a "disability" as defined under the aforementioned regulation. Given all of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for bilateral hearing loss. As such, there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim which would give rise to a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). III. Entitlement to Service Connection for a Pulmonary Disorder The threshold question to be answered with respect to the veteran's request for service connection for a pulmonary disorder is whether he has presented a well-grounded claim; that is, a claim which is plausible and capable of substantiation. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him in the development of his claim because such additional development would be futile. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As will be explained below, the Board finds that the veteran's claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1133; 38 C.F.R. § 3.303. The service medical records indicate that the veteran was treated on several occasions for upper respiratory infections. In January 1982, moist rales in the right chest were noted. In May 1983, bilateral diffuse rales were found and the veteran was diagnosed with bronchitis. In August 1984, the veteran complained of tightness in his chest and difficulty with breathing. At that time, the veteran reported that he had developed pneumonia sometime around the beginning of 1983. The report of a May 1990 service medical examination, which was conducted approximately six months prior to the veteran's separation from service, reveals that the veteran did not have any abnormality of his lungs and chest. The report of a March 1991 VA examination shows that the veteran's lungs were clear bilaterally. In March 1991, the veteran sought treatment for sinus congestion and tightness in his chest at the United States Naval Hospital in Bremerton, Washington. Upon examination, scattered rhonchi were discovered. No rales or wheezes were noted. X-rays showed that the cardiomediastinal silhouette and pulmonary vasculature appeared to be within normal limits. There was a faint linear opacification at the left lung base laterally, but no other abnormal lung opacities were evident. A diagnosis of mucopurulent rhinitis was recorded. The report of an August 1991 VA examination reveals that the veteran's lungs were clear with no rales, rhonchi, or other abnormalities. An impression of a past history of nonchronic episodic bronchitis was recorded. During his November 1991 personal hearing, the veteran testified that he was exposed to the chemical monoethylamine while aboard submarines and that this chemical irritated his lungs and is responsible for his current pulmonary problems. The veteran further stated that he developed pneumonia every three to four years and would experience coughing, shortness of breath, and susceptibility to colds between his bouts of pneumonia. The report of a June 1992 VA examination indicates that the veteran had no interval pulmonary symptomatology or suggestion of pulmonary disease. X-rays revealed that the veteran's lungs were clear. The examiner noted that the examination did not disclose any remarkable findings. Given all of the foregoing, the Board finds that the veteran has not presented a well-grounded claim of entitlement to service connection for a pulmonary disorder. In particular, the Board notes that the report of a June 1992 VA examination did not contain a diagnosis of a pulmonary disorder. In the absence of proof of a present disability, a valid claim cannot be established. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). The veteran's claim is therefore not well grounded and must be dismissed. See 38 U.S.C.A. § 7105(d)(5); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). ORDER Subject to the laws and regulations governing the award of monetary benefits, a 20 percent evaluation for lumbosacral strain is granted. Service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for a pulmonary disorder is dismissed. WARREN W. RICE, JR. 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.