Citation Nr: 0006617 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 93-16 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to an increased (compensable) rating for the service-connected history of amebic dysentery. 2. Entitlement to an increased (compensable) rating for the service-connected history of hookworm. 3. Entitlement to an increased (compensable) rating for the service-connected residuals of a combat injury to the left side. 4. Entitlement to service connection for claimed malaria. 5. Entitlement to service connection for a claimed hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to January 1947. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision of the RO. The Board remanded the case in July 1995 for further development. The Board notes that the veteran has lived the majority of his life in New Zealand, where he currently resides. In a rating decision of October 1999, the RO granted service connection for post-traumatic stress disorder, rated as 50 percent disabling, and for irritable bowel syndrome, rated as 10 percent disabling. The ratings were made effective on January 22, 1997. In light of this rating action, the Board finds that the previously identified issues of service connection for claimed ulcerative colitis and dyspepsia are no longer before the Board for the purpose of appellate disposition. The Board notes that, in an addendum to the veteran's April 1990 claim, he raised additional claims of service connection for "ascascus worms," dengue fever and yellow jaundice. These additional claims are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran is not shown to have mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention or chronic constipation interrupted by diarrhea due to the service-connected history of amebic dysentery. 2. The veteran is not shown to have mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention or chronic constipation interrupted by diarrhea due to the service-connected history of hookworm. 3. The veteran currently is not shown to have compensable disability due to the service-connected residuals of the combat injury to the right flank. 3. No competent evidence has been submitted to show that the veteran currently has disability due to malaria which was incurred in or aggravated by service. 4. The veteran is shown as likely as not to have a bilateral hearing disability as the result of his reported noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased (compensable) rating for the service-connected history of amebic dysentery have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114 including Diagnostic Code 7321 (1999). 2. The criteria for the assignment of an increased (compensable) rating for the service-connected history of hookworm have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114 including Diagnostic Code 7321 (1999). 3. The criteria for the assignment of an increased (compensable) rating for the service-connected residuals of the combat injury to the right flank have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a including Diagnostic Code 5297 (1999). 4. The veteran has not submitted evidence of a well-grounded claim of service connection for malaria. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 6. The veteran has a bilateral hearing disability due to disease or injury which was incurred in his military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Ratings for History of Dysentery and Hookworm The Board finds that the veteran's claims for compensable ratings for his service-connected amebic dysentery and hookworm infection are well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran claims a service- connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board further finds that the matter has been adequately developed for the purpose of appellate review. In accordance with 38 C.F.R. §§ 4.1 and 4.2, the Board has reviewed the service medical records and all other evidence of record pertaining to the veteran's history of amebic dysentery and hookworm infection. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. A January 1997 report of medical examination performed for VA noted that three January 1997 reports of the microbiology and culture of the veteran's feces revealed that no abnormalities, parasites, cysts, ova or enteric bacterial pathogens were present. The report also noted that, in light of the negative stool microscopy and culture as well as the presence of a segmental spasm indicated in a colonoscopy, the veteran's symptoms of irregular bowel habits must be due to irritable bowel syndrome. The report explained that irritable bowel syndrome was primarily a stress related disorder. The report also explained that many patients relate the onset of their symptoms to an episode of infective diarrhea, thus resulting in the question of whether the veteran's current symptoms were causally related to his in- service amebic dysentery. However, the report stated that, although most gastroenterologists agreed that this history was not uncommon, a causal relationship between an episode of infective diarrhea and irritable bowel syndrome did not exist. The report further indicated that the veteran's irritable bowel disorder was not secondary to amebic dysentery, but secondary to anxiety related to his military service. The veteran's service-connected amebic dysentery and hookworm infection are rated under diagnostic code 7321 (amebiasis). That code provides for the assignment of a no percent rating where the veteran is asymptomatic. 38 C.F.R. § 4.114 including Diagnostic Code 7321. A 10 percent rating, the maximum under diagnostic code 7312, requires mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention and chronic constipation interrupted by diarrhea. Id. It is the opinion of the Board that the evidence shows that the service-connected amebic dysentery and hookworm infection are asymptomatic. Three January 1997 microbiology and culture reports were negative for parasites, cysts, ova, or enteric bacterial pathogens. Furthermore, the veteran's symptoms were connected to the stress-related disability, irritable bowel syndrome, rather than infective diarrhea. Hence, a noncompensable rating must be continued for both disabilities in accordance with the provisions of diagnostic code 7321. The Board further concludes that a higher rating is not warranted under any applicable regulation primarily because there is no evidence of current infection and the medical evidence relates the veteran's current symptoms to irritable bowel syndrome rather than the in-service amebic dysentery or hookworm infection. 38 C.F.R. § 4.114, Diagnostic Code 7321. Consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, and the Board has applied all the provisions of Parts 3 and 4 that would reasonably apply to this claim. Increased Rating for the Residuals of the Combat Injury to the Right Flank A careful review of the service medical records shows that the veteran was treated for a "contused" wound of the right flank when a shell fragment struck his canteen in April 1945. The recent VA examination conducted for VA in January 1997 noted that the veteran had no right leg disability. The examiner added that the veteran had suffered some fractured right ribs in service and that these had healed and were causing no disability. Given the absence of medical findings showing that the veteran is experiencing residuals disability related to the service-connected combat injury to the right flank, a compensable rating is not warranted. Service Connection Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (the "Court") has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) an in- service injury or disease; (2) a current disability; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, except where the evidentiary assertions are inherently incredible or beyond the competence of the person making them. King v. Brown, 5 Vet. App. 19 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, absent clear and convincing evidence to the contrary, where a "combat" veteran claims service connection for combat-incurred injury or disease, satisfactory lay or other evidence that the injury or disease was incurred in or aggravated in combat is sufficient to establish service connection as long as the evidence is consistent with the circumstances, conditions, or hardships of war. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 392-3 (Fed. Cir. 1996). However, there must also be evidence of current disability and of a nexus to service. See Kessel v. West, 13 Vet. App. 9 (1999) (en banc); see also Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Malaria In order for the veteran's claim of service connection for malaria to be well grounded, there must be competent evidence of a current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. Here, there is no medical evidence of record indicating that the veteran currently has malaria. Although the veteran's service medical records indicate that he suffered numerous in-service infections, the service medical records contain no mention of malaria. Furthermore, the evidence contains no evidence of a nexus between the claimed malaria and any in- service injury or disease. Although the veteran asserts that he had malaria in-service, the record contains no medical evidence of current malaria or medical evidence connecting the claimed disability to an injury or disease in service. As noted hereinabove, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran is not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). However, even presuming in-service malaria under the operation of 38 U.S.C.A. § 1154(b), because the veteran has not submitted competent evidence of a current disability or of a nexus to service, the Board finds that the claim of service connection for malaria is not well grounded. See Caluza v. Brown, 7. Vet. App. at 506. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required regarding this claim. The veteran has not put VA on notice that competent evidence exists that supports his claim of service connection for malaria. By this decision, the Board is informing the veteran of the evidence necessary to make his claim of service connection for malaria as set forth hereinabove well grounded (i.e., evidence establishing in-service malaria, competent medical evidence establishing current malaria, and competent medical evidence establishing a nexus between current malaria and any injury or disease incurred in or aggravated by service). Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, a January 1997 report of medical examination performed for VA included a March 1996 pure tone and speech audiometry report which shows that the veteran suffers from a bilateral hearing disability as defined by VA. On the March 1996 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 30 45 55 70 LEFT 20 30 60 60 85 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. Furthermore, the January 1997 report noted that the audiogram indicated that the veteran had bilateral high tone deafness, described in the report as "classically a noise induced deafness." The physician also stated that, as the veteran had considerable in-service noise exposure and no appreciable noise exposure since, it was "quite reasonable to assume that this hearing loss [was] likely the result of war time noise exposure." Additionally, the record also establishes that the veteran is a combat veteran, as a January 1947 report of separation shows that he was awarded the Purple Heart and the Combat Infantryman's Badge. A September 1990 private physician's statement indicated that the veteran reported a wartime "noise induced hearing loss as a rifleman with U.S. forces in World War II." The September 1990 statement also noted that the physician had treated the veteran for several disorders, including "noise induced deafness," since 1979. As mentioned hereinabove, in order for the claim of service connection to be well grounded, there must be competent evidence of current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. Here, the March 1996 audiometry report establishes current hearing impairment as defined in 38 C.F.R. § 3.385. Also, under operation of 38 U.S.C.A. § 1154(b), the evidence establishes an in-service hearing-related injury. Furthermore, the medical evidence of record attributes the veteran's current hearing loss to "war time noise exposure." Therefore, the Board finds that the preponderance of the evidence supports the veteran's claim of service connection for a bilateral hearing loss. ORDER An increased rating for the service-connected history of amebic dysentery is denied. An increased rating for the service-connected history of hookworm is denied. An increased rating for the service-connected residuals of the combat injury of the right flank is denied. As the claim of service connection for malaria is not well grounded, the appeal is denied. Service connection a for bilateral hearing loss is granted. STEPHEN L. WILKINS Member, Board of Veterans' Appeals