BVA9507926 DOCKET NO. 93-13 115 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of a fracture of the right forefinger. 2. Entitlement to a compensable disability evaluation for residuals of a fracture, proximal head of the right thumb metacarpal. 3. Entitlement to a compensable disability evaluation for bilateral hearing loss. 4. Entitlement to a 10 percent disability evaluation under the provisions of 38 C.F.R. § 3.324 (1994). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to July 1975. This appeal arises from a September 1992 rating decision of the Department of Veterans Affairs (VA) New Orleans, Louisiana, regional office (RO). That rating decision granted service connection for an old healed fracture of the medial aspect of the proximal phalanx of right ring finger; granted service connection for an old healed fracture of the right 5th metacarpal; denied service connection for fracture of the right forefinger; denied a compensable evaluation for fracture of the proximal head of the right thumb metacarpal; denied a compensable evaluation for bilateral hearing loss; and denied a compensable evaluation under 38 C.F.R. § 3.324 (1994). In July 1993, the Board of Veterans' Appeals (Board) remanded the case by letter for the RO to schedule the veteran for a requested Travel Board hearing. A hearing was scheduled in February 1994, however the veteran failed to appear for the hearing. An August 1994 rating decision denied service connection for a ganglion cyst of the right 4th metacarpal phalangeal joint, but no notice of disagreement has been submitted. This issue has not been developed for appeal and is not properly before the Board at this time. The veteran's representative has raised the issues of service connection for tinnitus and a stress fracture of the right tibia. The Board notes that the service medical records show treatment for a stress fracture of the left tibia, not the right. In any event, the issues of service connection for tinnitus and a stress fracture of either tibia have not been developed for appeal, are not properly before the Board at this time, and are referred to the RO for initial consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has residuals of a fractured right forefinger which occurred in service. He also contends that his fracture, proximal head of the right thumb metacarpal, is symptomatic and should be compensably evaluated. The veteran also contends that he wears a hearing aid and is entitled to a compensable evaluation for bilateral hearing loss. His representative contends that another audio examination is necessary since the veteran must wear hearing aids. The veteran asserts that his service-connected disabilities have affected his ability to work effectively. The representative also requests that additional service medical records be obtained, and that all reasonable doubt be resolved in the veteran's favor. 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 preponderance of the evidence is against the claim for a compensable disability evaluation for residuals of a fracture, proximal head of the right thumb metacarpal; that the preponderance of the evidence is against the claim for a compensable disability evaluation for bilateral hearing loss and for a compensable disability rating under the provisions of 38 C.F.R. § 3.324 (1994); and that the veteran has not submitted a well grounded claim for service connection for a right forefinger disability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claims for entitlement to compensable evaluations for residuals of a fracture, proximal head of the right thumb metacarpal, and bilateral hearing loss, and for a compensable disability rating on the basis of multiple noncompensable disabilities. 2. A right forefinger injury was not noted during the veteran's period of active duty and there is no current right forefinger pathology. 3. The veteran has not met the initial burden of presenting evidence to justify a belief by a fair and impartial individual that his claim for service connection for a right forefinger disability is well grounded. 4. The veteran's service-connected residuals of a fracture, proximal head of the right thumb metacarpal, are currently asymptomatic, and are not manifested by degenerative changes or ankylosis. 5. The veteran has level II hearing in the right ear and level I hearing in the left ear. 6. The veteran's noncompensable service-connected disabilities are not shown to interfere with normal employability. 7. The veteran's service-connected disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well grounded claim of service connection for a right forefinger disability. 38 U.S.C.A § 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The criteria for a compensable evaluation for fracture of the proximal head of the right thumb metacarpal have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.31, Codes 5222, 5224 (1994). 3. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.3, 4.6, 4.85, and Part 4, Code 6100 (1994). 4. The criteria for a compensable evaluation based on multiple noncompensable disabilities have not been met. 38 C.F.R. § 3.324 (1994). 5. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Forefinger The veteran contends that he has residuals of a fractured right forefinger which occurred in service. The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim has been defined as a "plausible claim, one that is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In short, VA is not required to adjudicate a claim until the veteran has met his initial burden of submitting evidence that his claim is well- grounded. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim for service connection, this means that the evidence presented must, in some fashion link the claimed disability to a period of military service or to an already service connected disability. See 38 § U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1994); Tirpak v. Derwinski and Grottveit v. Brown, 5 Vet.App. 91 (1993). The Board has carefully reviewed the evidentiary record with respect to the issue of service connection for residuals of a fractured right forefinger. In the final analysis, as will be explained below, the veteran's claim for service connection for that claimed condition is not well grounded. The service medical records show that the veteran sustained a boxer's fracture of the 5th metacarpal of the right hand in April 1973. In August 1973, the veteran was seen with a swollen right hand. Soft tissue damage and no fracture was noted. In October 1973, the veteran was noted to have an old fracture of the proximal head of the right thumb metacarpal. The fracture was noted to be healing in a slightly skewed manner and he was to be evaluated for need for re-alignment. The service separation examination in June 1975 did not note any right hand abnormalities. A VA examination was conducted in December 1975. The veteran reported that he had injured his right 5th finger in service. No right forefinger injury was reported and no pathology was found. The most recent VA examination was conducted in July 1992. The veteran reported the injury to his right 5th finger in service. There were no complaints or findings relative to the right forefinger. X-rays of the right hand showed an old healed fracture of the 5th metacarpal and an old healed fracture of the medial aspect of the base of the proximal phalanx of the 4th finger. No acute fractures or degenerative changes were seen in the right hand. The appellant has not submitted medical evidence that he currently has any right forefinger pathology. Service connection is in effect for right thumb, ring finger and 5th finger conditions. The Board has considered the statement of the veteran to the effect that he has a right forefinger disability which is related to his period of active duty. However, the appellant's lay testimony alone is not competent evidence to support a finding on a medical question requiring special experience or special knowledge. His unsubstantiated statement is not competent evidence that would render his claim well- grounded. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The medical record in this case does not provide a basis upon which to conclude that the veteran has any chronic right forefinger disability which began or was aggravated during his period of active service. Based upon the foregoing, the Board concludes that the veteran has failed to meet his initial burden of presenting evidence that his claim for service connection for a right forefinger disability is plausible or otherwise well- grounded. Under these circumstances, his claim is dismissed. Glynn v. Brown, 6 Vet.App. 523 (1994). 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. 3.303 (1994). The United States Court of Veterans Appeals (Court) has held that where the RO has decided a claim on the merits which has subsequently been found to be not well grounded, the RO's decision should be vacated in order that the veteran may begin with a clean slate, without the necessity of reopening the claim, should he seek to pursue the claim at a later date. Grottveit, 5 Vet.App. at 93; Grivois v. Brown, 6 Vet.App. 136, 140-41 (1994). Review of the procedural history in this case indicates that the RO decided the claim at issue here on the merits. Those parts of the rating decision of September 1992 which addressed the claim for service connection for residuals of a fracture of the right forefinger should be vacated. II. Right Thumb The appellant's claim for an increased rating for fracture of the proximal head of the right thumb metacarpal is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In this regard, it is noted that the veteran's representative has requested that the RO attempt to obtain additional service medical records. Review of the record indicates that the complete service medical records are in the claims folder, and there is no indication that there are any additional records in existence. The service medical records show that the veteran sustained a boxer's fracture of the 5th metacarpal of the right hand in April 1973. In August 1973, the veteran was seen with a swollen right hand. Soft tissue damage and no fracture was noted. In October 1973, the veteran was noted to have an old fracture of the proximal head of the right thumb metacarpal. The fracture was noted to be healing in a slightly skewed manner and he was to be evaluated for need for re-alignment. The service separation examination in June 1975 did not note any right hand abnormalities. Service connection for fracture of the proximal head of the right thumb metacarpal was granted in September 1983. A noncompensable evaluation was assigned from August 1983. The noncompensable evaluation has been continued in subsequent ratings. The veteran contends that he is entitled to a compensable evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's right hand disability is currently evaluated as a whole under Diagnostic Code 5222. A compensable evaluation requires ankylosis of three digits of the hand. 38 C.F.R. Part 4, Code 5222 (1994). A compensable rating for the thumb alone is available under code 5224 where ankylosis of the thumb is demonstrated. 38 C.F.R. Part 4, Code 5224 (1994). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1994). A VA examination was conducted in July 1992. The veteran reported that he "broke his hand" in 1973 during service. He stated that the injury was at the base of his right ring finger. He reported that he had pain in the hand with lifting and working the gearshift in his truck. The veteran told the examiner that he had not suffered any injury to the right thumb. On examination, the right hand was essentially normal. The veteran could make a tight fist and could open the hand to a normal degree. Subjective testing showed that the right hand grip was not quite as strong as the left, however the grip strength on the right was considered to be within normal limits. There was normal function of the hand and the veteran could grasp objects and handle objects with good strength and dexterity. X-rays of the right hand showed an old healed fracture of the 5th metacarpal and an old healed fracture of the medial aspect of the base of the proximal phalanx of the 4th finger. No acute fractures or degenerative changes were seen in the right hand. The impression was normal right thumb. Based upon the recent examination findings, the veteran's right thumb appears normal. It is not clear whether there was ever an injury to the right thumb in service. The veteran states that he never had an injury to the right thumb, and the X-rays do not show any residuals of any fracture or other injury. There is clearly no ankylosis of the thumb or any other finger of the right hand that would support a compensable evaluation. Accordingly, the Board finds that the veteran is not entitled to a compensable evaluation for fracture of the proximal head of the right thumb metacarpal. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.31, Codes 5222, 5224 (1994). There is no equipoise between the positive and negative evidence, therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1994). III. Bilateral Hearing Loss The appellant's claim for a compensable evaluation for bilateral hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The service medical records show that audiograms conducted in service showed bilateral high-frequency hearing loss. The separation examination also indicated bilateral high-frequency hearing loss. Service connection for bilateral hearing loss was granted in February 1976. A noncompensable rating was assigned from July 1975. This evaluation has been continued in subsequent rating actions. The veteran contends that he wears hearing aids and that he is entitled to a compensable evaluation. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for bilateral service connected hearing loss, the revised rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85 and Part 4, Codes 6100-6110 (1994). ".... disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet.App. 345 (1992). The evaluations are intended to make proper allowance for improvement by hearing aids. Examination to determine this improvement is therefore unnecessary. 38 C.F.R. § 4.86 (1994). The record contains a report of a recent audiometric examination. Despite the contentions of the veteran's representative, there is no indication that another such examination is warranted. On VA audiometric examination, in July 1992, pure tone air conduction testing revealed the following threshold levels (in decibels): Hertz 1000 2000 3000 4000 Average Right ear 10 45 55 55 41 Left Ear 15 45 45 50 39 Speech discrimination for the right ear was 88 percent, and for the left ear was 92 percent. Such audiometric findings reflect level II hearing in the right ear and level I hearing in the left ear. Under the provisions of the rating schedule, a compensable rating is not assignable for hearing loss. Although the examination demonstrated that the veteran has hearing loss, that loss is not to a level which would warrant the assignment of a compensable evaluation under the VA regulations. Accordingly, the claim for a compensable rating for bilateral hearing loss must be denied. 38 C.F.R. § 4.85 and Part 4, Codes 6100-6110 (1994). IV. 38 C.F.R. § 3.324 (1994) Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324 (1994). Service connection is in effect for the veteran's right hand and bilateral hearing loss disabilities. All of these disabilities are rated as noncompensable. On the VA examination report dated in July 1992, the examiner noted that the veteran had worked full time until March 1992, at which time he had to leave his employment because he was incarcerated. The examiner stated that it did not appear that there was any significant injury to the hand, thumb or fingers, and that the veteran should be able to perform ordinary work activities without difficulty. The examiner further stated that the veteran should be able to perform ordinary manual labor and even heavy labor in spite of the minimal pain which he appeared to have. There is also no indication in the record that the veteran's noncompensable bilateral hearing loss has clearly interfered with his employability. It appears that the veteran is unable to work due to his incarceration, not as a result of his service- connected disabilities. Accordingly, the Board has determined that the veteran is not entitled to a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324 (1994). EXTRASCHEDULAR CONSIDERATION The schedular evaluations are adequate to compensate the veteran's disabilities. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). Consequently, the extraschedular criteria is not for application. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). ORDER The claim of service connection for a right forefinger disability is dismissed as it is not well-grounded. The RO should take appropriate adjudicatory action consistent with this decision in regard to this matter. A compensable disability evaluation for fracture of the proximal head of the right thumb metacarpal is denied. A compensable disability evaluation for bilateral hearing loss is denied. A 10 percent disability evaluation under the provisions of 38 C.F.R. § 3.324 (1994) is denied. JOAQUIN AGUAYO-PERELES 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.