Citation Nr: 0002529 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 96-03 192 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to a higher rating for a right foot disability. 4. Entitlement to a higher rating for a left foot disability. 5. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from October 1978 to May 1985 in the Army and from November 1985 to August 1991 in the Navy. This case comes to the Board of Veterans' Appeals (Board) from a March 1993 RO decision which, in pertinent part, denied service connection for right ear hearing loss; denied service connection for a right wrist disability; granted service connection and a noncompensable rating for left ear hearing loss; and granted service connection and separate noncompensable ratings for flat feet, bilateral hallux valgus, and status post amputation of the proximal phalange of the left little toe. The veteran appealed for service connection and higher ratings. By an August 1994 hearing officer's decision and a related October 1994 rating decision, the RO assigned a single 10 percent rating for flat feet with bilateral hallux valgus and status post amputation of the proximal phalange of the left little toe, effective from service discharge. The August and October 1994 RO decisions granted service connection for status post knife wound injury to the right hand, which the RO considered to be a grant of the veteran's claim for service connection for a right wrist disability. The right hand laceration, however, involves a different anatomical part and involves a different claim. The Board finds that the claim for service connection for a right wrist disability is still in appellate status and will be addressed in the present Board decision. In an April 1995 decision, the RO granted service connection for frostbite of both feet and assigned a separate noncompensable rating. In a December 1998 decision, the RO essentially combined the service-connected frostbite residuals and orthopedic problems with the feet (although it omitted some of the orthopedic problems) and assigned a 30 percent rating for residuals of cold injury with pes planus and hammer toes of the right foot, and a 30 percent rating for residuals of cold injury with pes planus and hammer toes of the left foot; such ratings were made effective from January 12, 1998, the effective date of a change in the regulation for evaluating residuals of cold injury. The main body of the present Board decision addresses issues of service connection for right ear hearing loss, service connection for a right wrist disability, and entitlement to a compensable rating for left ear hearing loss. The remand, which follows the present Board decision, addresses the issues of higher ratings for a right foot disability and a left foot disability. At an October 1999 Board hearing, the veteran raised issues of increased ratings for disabilities of the knees and left ankle. However, as these issues have not been developed for appeal, and as they are not inextricably intertwined with the issues currently on appeal, they are referred to the RO for appropriate consideration. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. The veteran has not submitted competent evidence to show a plausible claim for service connection for right ear hearing loss. 2. The veteran has not submitted competent evidence to show a plausible claim for service connection for a right wrist disability. 3. The veteran's service-connected left ear hearing loss is currently manifested by auditory acuity level I. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for right ear hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for service connection for a right wrist disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Code 6100 (1998 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from October 1978 to May 1985 in the Army and from November 1985 to August 1991 in the Navy. The veteran's service personnel records reflect that his primary duty in the Army was indirect fire infantryman; in the Navy his last duty assignment was in food management with previous schooling in engineering, as a boiler technician, and in fire fighting damage control. Service medical records from the Army show that in June 1983 the veteran was diagnosed with moderately severe mid-high frequency sensorineural hearing loss in the left ear and issued a hearing profile. His hearing in the right ear was normal. On audiologic testing in February 1985, the veteran's right ear hearing was within normal limits and the veteran continued to have sensorineural hearing loss in the left ear. On a February 1985 periodic physical examination, the veteran's upper extremities were clinically evaluated as normal and his hearing was decreased on the left. Service medical records from the Navy show that in a November 1989 statement the veteran indicated that while stationed on the USS Ouellet he sustained an injury (unspecified) in mid- March 1989 during his watch in the fire room. (Other records show that he was treated for knee problems during this period.) In May 1990, the veteran reported swelling to his right wrist for two weeks. In February 1991, the veteran was seen for a complaint of right wrist pain at the distal ulna adjacent to the carpal bones. The veteran reported that he had the pain for four months. He denied a history of trauma. An examination revealed mild tenderness over the distal right ulna and adjacent carpals. There was no swelling, and range of motion was full. The hand was intact neurovascularly. The impression was right wrist pain for four months. Subsequent X-rays of the right wrist were normal. The veteran was medically discharged from service, with severance pay, in August 1991, due to knee problems. In September 1991, the veteran filed a claim for service connection for a right wrist disability. On a December 1992 VA general medical examination, there were no complaints or clinical findings regarding the veteran's right wrist. The diagnosis was normal general physical examination, except for those findings pertinent to the knees and feet shown on a separate orthopedic examination. A December 1992 VA audiologic evaluation indicated the following pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz: 5, 5, 15, 25, and 35 for the right ear; and 5, 5, 40, 50, and 50 in the left ear (the average for the left ear for the last four of these frequencies was 36 decibels). The speech recognition scores using the Maryland CNC Test were 96 percent in both ears. The audiologist indicated that the testing showed hearing within normal limits in the right ear and mild to moderate high frequency sensorineural hearing loss in the left ear. In a March 1993 decision, the RO denied service connection for right ear hearing loss and a right wrist disability, and granted service connection for left ear hearing loss, assigning a noncompensable rating. At a December 1993 RO hearing before a hearing officer, the veteran testified that no medical problems arose during the short period of time between his service in the Army and Navy; that he injured his wrist (and knees) while serving in the Navy when he slipped and fell down the ladder rail in a fire room where he was a boiler technician; that he was then sent to sick bay for right wrist pain; that he still had wrist problems, specifically numbness from the wrist to the middle of the back of the hand and pain generated from around the area of the wrist bone on the ulnar side; that his wrist pain came on spontaneously and with physical exertion; and that he was in artillery, indirect infantry, and had hearing loss while in "combat arms." In January 1994, the veteran underwent a VA orthopedic examination pertinent to the hands, thumbs, and fingers. There were no recorded complaints or clinical findings regarding the veteran's right wrist. On a February 1994 VA examination, the veteran reported a history of exposure to artillery and boiler noise. An audiologic evaluation indicated the following pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz: 15, 10, 10, 25, and 40 in the right ear; and 5, 5, 40, 45, and 55 for the left ear (the average for the left ear for the last four of these frequencies was 36 decibels). The speech recognition scores using the Maryland CNC Test were 94 percent in the right ear and 96 percent in the left ear. The audiologist indicated that the testing showed bilateral high frequency sensorineural hearing loss, mild in the right ear and mild to moderate in the left ear. On a January 1995 VA general medical examination, there were no complaints or clinical findings regarding the veteran's right wrist, and a musculoskeletal examination was performed only with reference to the feet. On a September 1997 VA examination, the veteran reported a long history of noise exposure. An audiologic evaluation indicated the following pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz: 5, 10, 20, 25, and 40 in the right ear; and 5, 10, 45, 50, and 60 for the left ear (the average for the left ear for the last four of these frequencies was 41 decibels). The speech recognition scores using the Maryland CNC Test were 96 percent in the right ear and 98 percent in the left ear. The audiologist indicated that the testing showed mild high frequency sensorineural loss in the right ear and mild to moderately severe high frequency sensorineural loss in the left ear. On a November 1998 VA examination, the veteran reported gradual hearing loss in both ears for several years. He indicated that he wore a hearing aid in his left ear. An audiologic evaluation indicated the following pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz: 5, 10, 20, 25, and 40 for the right ear; and 5, 10, 50, 55, and 55 for the left ear (the average for the left ear for the last four of these frequencies was 42 decibels). The speech recognition scores using the Maryland CNC Test were 94 percent in both ears. The audiologist indicated that the testing showed mild high frequency sensorineural loss in the right ear and moderate to moderately severe high frequency sensorineural loss in the left ear. At an October 1999 Board hearing in Washington, D.C., the veteran testified that his left ear hearing loss was caused by indirect artillery fire while serving as a gunner in the Army; that his right ear problems were caused by the same acoustic trauma or noise exposure but were not as severe as the left ear because he stood on the right side of the cannon where his left ear was closer to the noise; that he had used proper hearing aid protection; and that he wore a hearing aid in his left ear. II. Analysis A. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service incurrence will be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. A claimant for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The VA has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no VA duty to assist him in development of his claim. Id.; Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a ). Grottveit v. Brown, 5 Vet. App. 91 (1993). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Right Ear Hearing Loss The veteran contends that the same acoustic trauma or noise exposure that caused hearing loss in his left ear (which is service-connected) was also the cause for hearing loss in his right ear. Service medical records do not show that the veteran had right ear hearing loss. He was discharged from his last period of service in August 1991. Post-service records show that at a VA audiology examination in December 1992, more than a year after service, the veteran's hearing in the right ear was within normal limits; a hearing loss disability under the standards of 38 C.F.R. § 3.385 was not then present. It was not until a February 1994 VA examination that the veteran was diagnosed with mild high frequency sensorineural hearing loss in the right ear; the audiologic findings on this examination showed the presence of a right ear hearing loss disability under the standards of 38 C.F.R. § 3.385. VA examinations in 1997 and 1998 show continued hearing loss in the right ear. The post-service medical records do not link the veteran's right ear hearing loss, first shown years after active duty, with his period of service. Without such competent medical evidence of causality, the claim for service connection is not well grounded. Caluza, supra. Statements by the veteran, to the effect that his right ear hearing loss is attributable to noise trauma in service, do not constitute competent medical evidence, since, as a layman, he has no competence to give a medical opinion on diagnosis or etiology of a disorder. Grottveit, supra. Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) of submitting evidence to show a well-grounded claim for service connection for right ear hearing loss, and thus the claim must be denied. 2. Right Wrist Disability In this case, service medical records show that in May 1990 the veteran reported swelling in the right wrist for two weeks and that in February 1991 he was seen for pain in the right wrist. The diagnosis in February 1991 was right wrist pain for four months, and X-rays at that time did not reveal any abnormality. There is absolutely no post-service medical evidence of complaints, clinical findings, or diagnosis of a right wrist disability. What is lacking in establishing a well-grounded claim for service connection for a right wrist disability is competent evidence of a current disability. Caluza, supra; Brammer v. Derwinski, 3 Vet. App. 223(1992). Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) of submitting evidence to show a well-grounded claim for service connection for a right wrist disability, and thus the claim must be denied. B. Compensable Rating For Left Ear Hearing Loss Initially, it is noted that the veteran's claim for a compensable rating for his left ear hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Since the RO's rating decisions, the regulations pertaining to rating hearing loss were revised effective June 10, 1999. See 64 Fed.Reg. 25202 (1999). However, given the audiometric findings in the veteran's case, his service-connected left ear hearing loss is rated by the same method under both the old and new regulations. See 38 C.F.R. § 4.85 (1998 and 1999), § 4.86 (1999). Evaluations of unilateral defective hearing range from noncompensable to 10 percent and are 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 of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, ranging from numeric level I for essentially normal acuity to numeric level XI for profound deafness. 38 C.F.R. § 4.85; see Lendemann v. Principi, 3 Vet. App. 345 (1992). When hearing loss in only one ear is service connected the hearing in the non-service-connected ear is taken as normal (level I) unless the veteran is shown to be completely deaf in both ears. See 38 C.F.R. § 3.383(a); VAOPGCPREC 32-97 (August 29, 1997); and 38 C.F.R. § 4.85(f) (1999). The VA audiometric tests in 1992, 1994, 1997, and 1998 all included test results (the average decibel threshold for the four frequencies, plus speech discrimination scores) which indicate the veteran has level I auditory acuity in the service-connected left ear. See 38 C.F.R. § 4.85, Table VI. He is deemed to have auditory acuity numeric designation I in the non-service-connected right ear (because the veteran is not shown to be completely deaf in both ears). These numeric designations in combination correspond to a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII, Code 6100. The assignment of a disability rating for hearing impairment is derived from a mechanical application of the rating schedule to the specific numeric designations assigned after audiometry evaluations are rendered. See Lendenmann, supra. In the instant case, the application of the rating schedule to the test results clearly demonstrates that no more than a noncompensable schedular rating is warranted. The fact that the veteran may wear a hearing aid does not affect his rating, as the rating schedule makes a proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (1998), § 4.85(a) (1999). For the above-stated reasons, the preponderance of the evidence is against the claim for an increase in the noncompensable rating for left ear hearing loss. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right ear hearing loss is denied. Service connection for a right wrist disability is denied. A compensable rating for left ear hearing loss is denied. REMAND The veteran's claims for higher ratings for disabilities of the right foot and left foot are well grounded, meaning plausible, and the file shows there is a further VA duty to assist him in developing facts pertinent to the claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1999); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As noted in the introduction of the present Board decision, the RO initially established service connection for bilateral flat foot, bilateral hallux valgus, and a left little toe amputation; separate noncompensable ratings were initially assigned, and subsequently a single 10 percent rating was assigned for these orthopedic conditions of the feet. The RO later granted service connection for residuals of frostbite of both feet, rated noncompensable. More recently, the RO essentially combined the frostbite and orthopedic problems of both feet (although dropping some of the orthopedic problems) and characterized and rated the disabilities as residuals of cold injury with pes planus and hammer toes of the right foot (rated 30 percent) and residuals of cold injury with pes planus and hammer toes of the left foot (rated 30 percent). The RO's latest rating method, of combining frostbite and orthopedic conditions, and omitting some of the previous orthopedic foot conditions (without severance of service connection), appears questionable, and such should be further reviewed by the RO. The Board also notes that further development of the evidence is warranted on these issues. The veteran underwent his most recent VA examination in November 1998. Although the focus of the examination was to assess residuals of a cold injury to the feet, objective findings included bilateral pes planus, normal gait, bilateral hallux valgus, bilateral hammering of the four toes except for shortening of the left fifth toe, a tender prominent metatarsal head on the right great toe (bunion), and warm and intact skin. Previous VA examinations of the feet in 1992, 1994, 1995, and 1997 reflect similar findings in addition to the veteran's complaints of pain in the arches. However, the clinical findings appear incomplete to evaluate the veteran accurately under the appropriate rating criteria. That is, the VA examiners did not comment on the severity of the veteran's pes planus and hallux valgus, whether use of orthopedic shoes or appliances improved his condition, and whether there was marked deformity, pain on manipulation and use accentuated, swelling on use, or characteristic callosities. Thus, the Board finds that another VA examination to determine the severity of the service-connected foot disabilities is warranted. Furthermore, the veteran appeared at a Board hearing in October 1999 and asserted that he used orthotics prescribed by a private doctor which did not alleviate his foot pain and that he underwent surgery to remove a bunion on his right foot in September 1999 at the Washington VA Medical Center (VAMC) and was still recovering. The record does not contain these private and VA records. In the judgment of the Board, an effort should be made to obtain any recent treatment records, to include any operative reports from VA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, these issues are REMANDED to the RO for the following development: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers (VA or non-VA) where he has received treatment for his right and left foot problems since 1998. After receiving this information and any necessary releases, the RO should contact the named medical providers and obtain copies of the related medical records. This includes, but is not limited to, all treatment records from the Washington VAMC. 2. Thereafter, the veteran should be afforded a VA orthopedic examination to determine the current severity of his service-connected orthopedic disabilities of the feet (including bilateral flat foot, bilateral hallux valgus, bilateral hammer toes, and left little toe amputation). The claims folder should be made available to and reviewed by the examiner in conjunction with the examination. The examiner should report in detail all findings for rating the disabilities under the applicable rating criteria. 3. Following completion of the foregoing, the RO should readjudicate the veteran's claims for increased ratings for disabilities of the right foot and left foot. The RO should specifically note all previously service-connected orthopedic conditions of the feet, and such should be rated separately from the service-connected residuals of cold injury to the feet. If the decision remains adverse to the veteran, the RO should provide him and his representative with a supplemental statement of the case and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. While the case is in remand status, the veteran may furnish additional evidence and argument on the issues which the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L. W. TOBIN Member, Board of Veterans' Appeals