BVA9501681 DOCKET NO. 93-09 381 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for a right ankle sprain. 3. Entitlement to service connection for a left ankle sprain. 4. Entitlement to an increased (compensable) rating for a pilonidal cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from March 28, 1986, to March 4, 1992. He also had 3 years, 6 months, and 11 days of active service prior to March 28, 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision. After the Board's receipt of the claims folder, additional evidence was received in the form of an October 1, 1993, letter from David C. Worthington, M.D. Generally speaking, evidence received after the claims file has been transferred from the RO will be accepted by the Board, but only if received within 90 days following notification to the veteran of the transfer of the records, or if good cause for a delay beyond 90 days is shown on motion of the appellant. 38 C.F.R. § 20.1304 (1993). In this case, the veteran was notified by a April 28, 1993, letter that his case was being transferred to the Board. The October 1, 1993, letter was received at the Board on August 29, 1994, more than a year after he was notified of the transfer of his records. The appellant has not submitted a motion demonstrating that there was good cause for his delay in submitting the additional evidence. While the October 1993 letter was obviously not available until after the 90-day period had already expired, the rule of § 20.1304 nevertheless requires that the Board proceed without consideration of the additional evidence. Accordingly, the evidence received at the Board in August 1994 is referred to the RO for such action as may be deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has defective hearing and bilateral ankle difficulties which are attributable to his period of military service. He also contends that, while surgery was performed for a pilonidal cyst during service, he continues to have periodic problems with the wound site, particularly when he exercises or must sit for a prolonged period. He asserts that these problems warrant the assignment of an increased rating. 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 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 veteran's claim of service connection for defective hearing, a right ankle sprain, or a left ankle sprain is not well- grounded. Additionally, the veteran's claim for an increased rating for a pilonidal cyst is denied because of his failure to report for a VA examination. FINDINGS OF FACT 1. No cognizable evidence has been presented to show that the veteran has defective hearing as defined by VA regulation. 2. No cognizable evidence has been presented to show that any problems the veteran experiences with either ankle is attributable to his period of military service. 3. The question of entitlement to an increased evaluation for a pilonidal cyst or residuals thereof cannot be answered without a current VA examination. 4. Without good cause, the veteran failed to report for a scheduled VA examination to evaluate the severity of his pilonidal cyst. CONCLUSIONS OF LAW 1. A claim of service connection for defective hearing is not well-grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1993); 59 Fed.Reg. 60560 (Nov. 25, 1994). 2. A claim of service connection for a right ankle sprain or a left ankle sprain is not well-grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 3. An increased rating for a pilonidal cyst is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.655, 4.118 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Defective Hearing The threshold question to be answered is whether the veteran has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. In short, VA is not required to adjudicate a claim until after the veteran has met this initial burden of submitting a well-grounded one. "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 of service connection, this generally means that evidence must be presented which in some fashion links a current 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 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). As far as the veteran's claim of entitlement to service connection for defective hearing is concerned, the Board finds that evidence sufficient to find the claim well- grounded has not been submitted. § 5107. Consequently, there is no duty to assist the veteran in the development of this claim or to adjudicate the merits of his claim. Gilbert. In order for consideration to be given to a claim of entitlement to service connection, there must be a showing that the veteran currently experiences the alleged disability. 38 C.F.R. § 3.303 (1993); see Brammer v. Derwinski, 3 Vet.App. 223 (1992) (absent a showing that there is a presently existing disability, there is no valid claim). In this regard, it should be pointed out that hearing acuity is not considered impaired for purposes of an award of service connection unless audiometric test results, or speech recognition scores, have reached a certain level. The provisions of 38 C.F.R. § 3.385 (1993) provide that: Hearing status shall not be considered service connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. § 3.385; accord 59 Fed.Reg. 60560 (Nov. 25, 1994) (new wording given to § 3.385 in order to clarify that this regulation "merely sets forth the base criteria for determining the point at which impaired hearing is considered a disability"). No cognizable evidence has been submitted to show that the veteran meets these criteria. In other words, there is no evidence of his having a hearing status that is impaired to the point that entitlement to service connection may be considered. Audiometric testing was conducted during the veteran's period of military service and was repeated several times in January 1992. However, at no point did the thresholds for the pertinent frequencies rise to the level required by § 3.385. Consequently, there is no competent medical showing in the record that he has a disability within the meaning of applicable law and regulation. The claim of service connection for defective hearing is therefore not well-grounded. See Brammer. Ankle Sprains The veteran's service medical records show that he was seen several times in August 1988 for a right ankle sprain. An August 31, 1988, record refers to a "L[eft]" ankle sprain, but when read in context with the other treatment reports, it appears that this record was prepared as a follow-up to right ankle difficulties he was experiencing. Nevertheless, the salient point to be made is that, as with the claim of service connection for defective hearing, evidence must be presented by the claimant sufficient to make his claims plausible. For the reasons set forth below, the Board finds that he has failed to meet his statutory burden with respect to his claims of service connection for ankle sprains. As noted, the veteran was seen during August 1988 for an ankle sprain. No evidence has been presented to show that this resulted in a chronically disabling problem. See Rabideau. A September 1992 note from a private physician indicates that the veteran had evidence of some degree of right ankle instability and recurrent sprains. However, no link to military service or specifically to the August 1988 problems was made. While the veteran has contended that a grant of service connection is in order, such an assertion, standing alone, does not suffice. A lay assertion of medical diagnosis or causation does not constitute competent evidence sufficient to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Without competent medical evidence linking any current disability to military service, the veteran's claim may not be considered well-grounded. When a well-grounded claim has not been submitted, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, the veteran's appeal of the issues of service connection for defective hearing, a right ankle sprain, or a left ankle sprain must be dismissed. The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). Pilonidal Cyst Turning to the veteran's claim of an increased rating for a pilonidal cyst, the Board notes that this claim is well-grounded by virtue of the veteran's own assertions. See Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The duty to assist in the development of facts pertinent to such a well-grounded claim normally extends to obtaining "a thorough and contemporaneous medical examination." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). However, the duty to assist is not a one-way street, and scheduling an examination was attempted by the RO, but without success. An examination was scheduled in April 1992, but the veteran failed to appear. He called on July 7, 1992, to say that his absence was due to his attendance at school on April 21, 1992. He said that he was willing to report for an examination. An undated memorandum from his representative was subsequently received, asking that the examination be rescheduled. This was done by the RO in August 1992, but again the veteran failed to report. This time, no explanation for his absence was given. The veteran has asserted that problems related to his service- connected pilonidal cyst are such that a compensable rating is warranted, but VA has not had an opportunity to verify this. The assignment of an increased rating turns on whether the veteran meets certain criteria, § 4.118, and because an examination was required in order to say whether he has in fact met such criteria, the benefit sought cannot be granted. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, ... [and] the examination was scheduled in conjunction with ... a claim for an increase, the claim shall be denied. 38 C.F.R. § 3.655 (1993). Because the veteran's failure to report for the August 1992 examination is without explanation, it may be said that his failure to report for the scheduled examination was without good cause. His claim for an increase must consequently be denied. ORDER Claims of service connection for defective hearing, a right ankle sprain, or a left ankle sprain are not well-grounded; the appeal of these issues is dismissed. An increased rating for a pilonidal cyst is denied. M. CHEEK 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.