Citation Nr: 0000508 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 92-52 779 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of primary service connection for a back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a right elbow disability. 4. Entitlement to rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995. 5. Entitlement to an increased rating for bilateral defective hearing, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John M. Clarkson, III, Counsel INTRODUCTION The veteran had active service from October 1942 to January 1946. In a June 1971 decision, the Board of Veterans' Appeals (Board) denied service connection for a back disability. The Board found that a back disorder was not present in service, that arthritis of the lumbar spine was not present within the first post-service year and that the veteran's service- connected residuals of a left knee injury did not cause arthritis of the lumbar spine. In November 1978 and January 1985 decisions, the Board, in effect, determined that new and material evidence had not been submitted to reopen the claim of service connection for a back disability. In a November 1989 rating decision, the RO continued denial of several claims, including a claim of entitlement to primary service connection for a back disability. The veteran replied to the RO's letter in a November 1989 statement, which was construed by the RO as a Notice of Disagreement with the November 1989 rating decision. In a January 1990 Statement of the Case, the RO explained the denial of entitlement to primary service connection for a back disorder, noting that new and material evidence had not been submitted to reopen that claim. In a January 1990 statement, the veteran requested additional time to complete his substantive appeal. In a January 1995 remand, the Board set forth the foregoing procedural developments, and noted that the existing record did not indicate the action taken in response to the veteran's request for additional time to complete his appeal. Accordingly, the Board directed that the issue of whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for a back disorder be referred to the RO for its consideration. Thereafter, the RO determined in a January 1997 rating decision that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a back disability. The Board notes that this issue was thereafter addressed in an August 1997 Supplemental Statement of the Case. A September 1997 letter from the veteran to the RO was construed by the RO in November 1997 as a substantive appeal as to this issue. This issue is the subject of a remand attached to this decision. The appeals as to the claims of entitlement to service connection for right knee and right elbow disabilities arise from an October 1991 rating decision which, among other things, denied service connection for right knee and right elbow disabilities. In October 1992, the Board affirmed the denials of service connection for right knee and right elbow disabilities. In correspondence dated in November 1992, and received at the Board in January 1993, the veteran indicated that he had requested an RO hearing on several occasions, but had not been scheduled for an RO hearing. In a March 1993 letter, the Board informed the veteran that his case was being returned to the RO to accord him an RO hearing. The Board also explained to the veteran that, if he appeared for the RO hearing, the Board's decision of October 1992 would be vacated and a new decision would be entered. The veteran was accorded an RO hearing in April 1993 and a transcript of the hearing is included in the record. In an August 1994 decision, the Board vacated the October 1992 Board decision and referred the veteran's claims for de novo consideration by another Member of the Board. In January 1995, the issues of entitlement to service connection for a right knee disability, and entitlement to service connection for a right elbow disability were remanded to the RO for further development. In a January 1997 rating decision, the RO continued denial of service connection for right elbow and right knee disorders. The appeals as to the issues of disability ratings for bilateral defective hearing arise from the January 1997 rating decision which increased the rating for bilateral defective hearing from 10 to 20 percent, effective from May 23, 1995. The RO denied entitlement to a rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995. In September 1998, the Board remanded the claims now at issue to the RO to accord the veteran a hearing at the RO before a member of the Board. That hearing was conducted in April 1999 by the undersigned Member of the Board, and a transcript of the hearing is included in the record. The claim for an increased rating for bilateral defective hearing, currently rated 20 percent disabling is the subject of a remand attached to this decision. FINDINGS OF FACT 1. The claim for service connection for a right knee disorder is not plausible. 2. The claim for service connection for a right elbow disorder is not plausible. 3. On audiometric evaluations of record prior to May 23, 1995, the veteran had Level II hearing acuity in the right ear in February 1988, and Level I hearing acuity in January 1990 and August 1991; he had Level XI hearing acuity in the left ear in February 1988, January 1990, and August 1991. CONCLUSIONS OF LAW 1. The claim of service connection for a right knee disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of service connection for a right elbow disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. A rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995 is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.87, Codes 6100-6110 (effective prior to June 10, 1999) and 38 C.F.R. § 4.87, Code 6100 (effective June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records show that he was treated for injuries including, abrasions on both knees, moderately severe abrasions on both palms, and a mild concussion sustained when he was struck by a truck in August 1944. A medical history report indicated that he injured his left knee in August 1944 when he was struck by a weapons carrier while walking along a road. He was hospitalized for two weeks and later received physiotherapy. A medical progress note showed that the veteran complained of left knee weakness, particularly when he played tennis. The service medical records do not contain any complaint, diagnosis, or treatment of a right elbow disability. A certificate of disability for discharge (CDD) was issued upon the veteran's separation from service in January 1946. The CDD noted that the veteran was unfit for military service due to chronic, severe, vasomotor rhinitis, but did not refer to the veteran's right knee or right elbow. In January 1946, he filed a claim of service connection for a knee injury, without specifying the knee(s) affected. The veteran asserted that he sustained a knee injury when he was struck by a weapons carrier in August 1944. He also contended that he had symptoms associated with rhinitis, including difficulty with hearing. A February 1946 rating decision denied service connection for knee injury residuals, without specifying the knee(s) affected. On VA medical examination in April 1946, the veteran reported a history of being struck by a weapons carrier in both knees, being caught by the bumper, and thrown 10 to 12 feet. His knees ached after prolonged standing or walking. Both knees were normal in size and configuration, and no limitation of motion was seen. The veteran also complained of congestion, which affected his hearing. The auditory canals were normal, and no discharge was seen. Ordinary conversation was heard bilaterally at 15 feet. Diagnoses were chronic vasomotor rhinitis with sinusitis and bilateral, mild deafness, and chronic otitis media. In a June 1946 rating decision, the RO awarded service connection and assigned a noncompensable rating for bilateral otitis media, with impaired hearing. A November 1946 letter from Robert P. Smith, D.O., reported an examination of the veteran's left knee, which was described as having been injured during service. Dr. Smith indicated that there was probable internal derangement and anterior swelling of the knee; the latter was believed to be probably due to a bursa injury. The right knee was likewise affected, but not to the same extent as the left knee. On VA medical examination in January 1947, the veteran gave a history of being struck from behind by a weapons carrier in service, being thrown 10 to 12 feet, and landing on his knees. He complained that his left knee was weak and would not allow him to stand for more than an hour. The diagnosis was old contusion of both knees with minimal residuals. Statements dated in August 1949 from former fellow soldiers, Mr. [redacted] and Mr. [redacted], indicated that the veteran was struck and knocked down during a blackout on base during service. He was subsequently treated for a knee injury, but the statements did not specify the knee(s) affected. In an undated statement in support of his claims, the veteran indicated that he had persistent pain in his knees, which caused him to miss time from work. He also contended that he had hearing loss. In a September 1949 letter, C. Chester Chianese, M.D. reported that the veteran complained of left knee pain and weakness, and gave a history of left knee trauma during a blackout. There were no complaints or clinical findings as to the right knee. On VA medical examination in October 1949, the veteran complained of bilateral hearing loss, and constant left knee pain and swelling. He gave a history of being hit in the left knee by a weapons carrier during service. The diagnosis was no left knee pathology found. There were no complaints or clinical findings as to the right knee. In a November 1949 rating decision, the RO awarded service connection, and assigned a noncompensable rating for residuals of a left knee injury. An August 1957 attending physician report from R.J. Contone, M.D., indicated treatment of the veteran from April to July 1957 for a sprain of the collateral ligaments of the left knee. There was no reference to the right knee. On VA medical examination in September 1957, the veteran's complaints included knee pain, which required him to rest a great deal. There were no specific complaints or clinical findings as to the right knee. A January 1968 letter from Dr. Smith noted that the veteran continued to receive treatment for residuals of a left knee injury. On August 1968 VA medical examination, the veteran reported pain on use of his left knee. On January 1969 VA medical examination, the veteran complained of pain and weakness in his knees, particularly his left knee, which gave way when he walked or climbed stairs. The examiner reported that no orthopedic knee condition was discoverable on clinical examination or x-ray examination. An attending physician report from Dr. Smith, dated in December 1969, a report of a VA medical examination of the veteran in April 1970, the transcript of an RO hearing in September 1970, and a report of a VA medical examination of the veteran in October 1970 referred to the left knee, but did not include any complaints, findings or diagnosis with regard to the right knee. A December 1974 attending physician's certificate from Dr. Smith shows treatment of the veteran for left knee complaints, but does not refer to the right knee. On VA medical examination in February 1975, the veteran's complaints included left knee pain, but there were no references to the right knee. In a November 1975 letter, a VA physician provided medical information, including information about the status of the veteran's lumbar spine and left knee disabilities, to the veteran's private physician, A.M. Sophocles, M.D. The letter did not refer to the right knee. In July 1981, letters from Mr. [redacted] and Ms. [redacted] [redacted] were associated with the claims folder. Mr. [redacted] and Ms. [redacted] recalled being told by the veteran that he had been injured when he was struck by a weapons carrier, and had subsequently developed recurrent back and leg pain. Letters from Robert B. Wever, D.O., dated in September 1982 and September 1983 refer to treatment of the veteran, including treatment of his left knee. The right knee is not mentioned in the letters. On VA medical examination in May 1983, the veteran's complaints included pain in both knees. He reported that he was receiving medical treatment for disabilities including knee instability and pain from Dr. Wever. In a January 1988 letter, Dr. Wever reported that, he had been unable to provide temporary relief from pain associated with the veteran's unstable knee joint syndrome. Dr. Wever did not specify the knee(s) affected. On VA medical examination in February 1988, the veteran's complaints included left knee pain. No other abnormalities were noted, and there was no diagnosis as to the right knee. On VA examination in February 1988, the findings included mild to moderate severe mixed hearing loss in the right ear and moderate to profound mixed hearing loss in the left ear. Speech discrimination was mildly impaired in the right ear and profoundly impaired in the left ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 15 45 50 LEFT 55 70 110 X 110 The average pure tone thresholds were 35 decibels in the right ear and 86 decibels in the left ear. There was 88 percent of speech discrimination in the right ear and 10 percent in the left ear. Based on the VA audiometric evaluation, the RO, in a September 1988 rating decision, increased the rating for bilateral defective hearing from a noncompensable rating to 10 percent. In October 1989, the veteran submitted microfilm copies of his service medical records. (Correspondence from the National Personnel Records Center (NPRC) indicated that the veteran's service medical records were destroyed in a fire at the NPRC in 1973.) On January 1990 VA audiometric evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 20 x 45 LEFT 65 80 75 x 105 The average pure tone thresholds were 33 decibels in the right ear and 81 decibels in the left ear. Speech discrimination was 100 percent in the right ear and 24 percent in the left ear. The examiner noted mild sensory neural impairment in the right ear and severe sensory neural impairment in the left ear. In a July 1990 letter, Alexander Fasulo, M.D. reported his evaluation of the veteran's complaints of locking and pain in his right elbow. X-ray study showed multiple chondro-osseous bodies in the elbow joint, and degenerative changes. An August 1986 arthrotomy revealed a radial head with deforming spur. Dr. Fasulo's diagnosis was degenerative joint disorder of the right elbow. In an October 1990 statement accompanying an October 1990 letter, the veteran recited his history of medical treatment. He asserted, in effect, that a private physician, identified as Dr. E. Thurm, recommended immediate surgery for both his knees in or about November 1946. He contended that he had complained of, and sought treatment since approximately 1950 for, among other disabilities, disabilities associated with both knees and his right arm. On VA medical examination in August 1991, diagnoses included status post removal of chondro-osseous bodies from the right elbow, with minimal osteoarthritic changes and loose bodies seen in x-ray studies; and lateral derangement of the right knee, with minimal osteoarthritic changes seen in x-ray studies. On VA audiometric evaluation in August 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 40 25 55 55 LEFT X 105 95 105 105 The average pure tone thresholds were 44 decibels in the right ear and 103 decibels in the left ear. Speech discrimination was 100 percent in the right ear and 0 percent in the left ear. At an RO hearing in April 1993, the veteran testified that, he had swelling in both knees after being struck by a weapons carrier in service. The left knee was more painful than the right knee. Physical activity exacerbated his knee problems. He reported that he also injured his elbow at the time he injured his knees, and he had undergone an operation two years earlier to have bone chips removed from his right elbow. VA medical records, covering various periods dating from January 1985 to March 1995, show that the veteran was treated for disabilities including a chronic right elbow strain and a chronic right knee strain. In January 1995, the Board, among other things, remanded the claims of service connection for right knee and right elbow disabilities, and an increased rating for bilateral defective hearing for additional development, directing that an attempt be made to obtain specified medical records and the veteran be scheduled for VA medical examinations. In a May 1995 letter, Dr. Wever reported providing medical treatment to the veteran from August 1980 to December 1986. He recalled that the veteran's chief complaints included knee injuries sustained in service when he was struck by a weapons carrier. Dr. Wever expressed uncertainty about the cause of what he described as the apparent shortness of the veteran's right leg. Dr. Wever reported that osteopathic manipulation seemed to provide the veteran with some relief for a while. In a May 1995 letter to the RO, the veteran asserted that he had a complete loss of hearing in his left ear and a severe right ear hearing loss. On VA audiometric evaluation on May 23, 1995, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 35 85 80 LEFT 105 105 105 105 105 The average pure tone threshold was 60 decibels in the right ear and 105 decibels in the left ear. Speech recognition was 88 percent in the right ear and no response at 105 decibels in the left ear. The examiner's impression was mild conductive hearing loss between 250 and 1,000 Hertz, mild sensory neural hearing loss at 2,000 Hertz, with a precipitous drop to severe, essentially sensory neural hearing loss between 3,000 and 8,000 Hertz. In the left ear, there was profound, essentially sensory neural hearing loss across all frequencies with the exception of a mixed hearing loss at 250 and 500 Hertz. On VA otolaryngological examination on May 23, 1995, the examiner reported that the veteran's auricles and ear canals were normal, and tympanic membranes were intact. There was no active ear disease. Diagnoses included no active ear disease, occasional tinnitus by history, and bilateral mixed hearing loss. On VA orthopedic examination in May 1995, the diagnoses included degenerative arthritis of the right elbow, with surgical repair having been performed several years earlier. The examiner added that it was impossible to opine that the veteran's current right elbow disability was not related to an injury in service. As regards the veteran's right knee, the examiner reported that the veteran stated that the problem was with his left knee and that he had no problem with the right knee. As such, there was no examination of the right knee. In a January 1997 rating decision, the RO, among other things, denied service connection for right elbow and right knee disabilities, increased the rating for bilateral defective hearing from 10 to 20 percent effective May 23, 1995, and denied a rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995. In an April 1997 letter, Dr. Wever reported that he was continuing to provide medical treatment to the veteran. In a September 1997 letter, Thomas J. Capotosta, M.D., indicated that the veteran had been under his care for degenerative arthritis and tardy ulnar nerve palsy secondary to an old war injury. Dr. Capotosta stated that an operation performed on the veteran in May 1997 and an unspecified operation performed by a physician identified as Dr. Fasulo in August 1986 were secondary to the veteran's war-related injuries. In a March 1998 letter, the veteran indicated that he desired a hearing at the RO before a member of the Board. In September 1998, the claims at issue were remanded to the RO to accord the veteran an RO hearing before a member of the Board. In April 1999, at an RO hearing before the undersigned member of the Board, the veteran testified that he could not hear out of his left ear. He asserted that the evidentiary record demonstrated that an increased rating for bilateral hearing loss in excess of the current 20 percent rating was warranted, and a rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995 was also warranted. He indicated that, from the time he was struck by a weapons carrier in service, he experienced pain, including right knee and right elbow pain. After service, he had declined to undergo surgery on his right knee but, he had had three operations on his right elbow during the 1980s. Analysis A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial tribunal that the claim is well-grounded. VA shall assist such a claimant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). If he has not presented evidence of a well-grounded claim, his appeal must fail as to that claim, and there is no duty to assist him further in the development of his claim because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order for a claim for service connection to be well- grounded, there must be competent medical evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that laypersons are not competent to provide medical opinions. Layno v. Brown, 6 Vet. App. 465 (1994). Service Connection for a Right Knee Disability With regard to the claim of service connection for a right knee disability, an August 1991 VA medical examination included a diagnosis of lateral derangement of the right knee, with minimal osteoarthritic changes seen in x-ray studies. This fulfills the first requirement of a medical diagnosis of a current disability set forth in Caluza. The veteran is competent to assert that he injured his right knee in service, and the service medical records show that he sustained abrasions to both knees. Thus, the second element of Caluza is satisfied. What is missing is the nexus requirement. No competent medical evidence relates the veteran's current right knee disorder to service, or arthritis of the right knee to the one-year presumptive period following discharge from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 & Supp. 1999) and 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran is not competent to provide a medical opinion himself. Layno, supra. Notwithstanding the foregoing, it is apparent that the Member of the Board who remanded this issue in January 1995 attempted to address the issue of service connection for a right knee disorder on the merits, in view of the clinical documentation of an abrasion of the right knee in service. However, at the time of the May 1995 orthopedic examination the veteran reported that there was no problem with the right knee. As such, the right knee was not examined and there is no medical opinion linking any current right knee pathology to service. Therefore, the Board concludes that the claim of service connection for a right knee disability is not well- grounded, and the claim must be denied. Service Connection for a Right Elbow Disability A July 1990 letter from Dr. Fasulo included his diagnosis of degenerative joint disorder of the right elbow. Additionally, an August 1991 VA medical examination included a diagnosis of status post removal of chondro-osseous bodies from the right elbow, with minimal osteoarthritic changes and loose bodies seen in x-ray studies. This fulfills the first requirement of a medical diagnosis of a current disability under Caluza. The veteran is competent to assert that he injured his right elbow in service, thus satisfying the second element of Caluza. What is missing is competent medical evidence relating the current right elbow disability to service, or arthritis of the right elbow to the one-year presumptive period following discharge from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 & Supp. 1999) and 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran is not competent to provide an opinion himself. Layno, supra. In May 1995, a VA examiner stated that it was impossible to opine that the veteran's current right elbow disability was not related to an injury in service. However, such a speculative opinion does not render the claim well-grounded. The Court has held that, to be well-grounded, a claim need not be conclusive, but must be accompanied by evidence that suggests more than a speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). Dr. Capotosta's September 1997 letter indicating that an unspecified "operation" was "secondary" to war-related injuries also falls short of the specificity required for a medical opinion relating the right elbow disability to service and establishing the nexus required by Caluza. It was obviously based solely on information reported by the veteran. See Reonal v. Brown, 5 Vet. App. 458 (1993) Accordingly, the Board concludes that the claim of service connection for a right elbow disorder is not well-grounded and must be denied. A Rating in Excess of 10 Percent for Bilateral Defective Hearing Prior to May 23, 1995 The Board finds that the claim for a rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995 is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that, 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). Disability evaluations are determined by the application of a schedule of ratings which is based upon the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In this regard, the Board notes that that portion of the VA disability rating schedule concerning diseases of the ear was amended effective June 10, 1999. The Court has held that, when a change occurs in an applicable statute or regulation after a claim has been filed but before a final decision has been rendered, VA must apply the version of the statute or regulation which is most favorable to the claimant, unless Congress has expressly provided otherwise or has authorized VA to provide otherwise and VA has done so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the amendments to the disability ratings for diseases of the ear made no substantive changes. The actual rating criteria for evaluating bilateral defective hearing remained identical. Both prior to, and effective June 10, 1999, ratings for defective hearing range from noncompensable to 100 percent, based on organic impairment of heating 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 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 different auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. 38 C.F.R. § 4.85, Part 4, Diagnostic Codes 6100-6110 (effective prior to June 10, 1999) and 38 C.F.R. § 4.87, Code 6100 (effective June 10, 1999). There are three reported audiometric evaluations of the veteran prior to May 23, 1995. On the first of these, the VA audiometric evaluation in February 1988, the veteran's right ear demonstrated an average pure tone threshold of 35 decibels and 88 percent of speech discrimination, for Level II hearing acuity. The left ear showed an average pure tone threshold of 86 decibels and 10 percent of speech discrimination, for Level XI hearing acuity. Combining the hearing acuity findings as required under the rating schedule equates to a 10 percent rating. On the second audiometric evaluation, the VA evaluation in January 1990, the veteran's right ear showed an average pure tone threshold of 33 decibels and 100 percent of speech discrimination, for Level I hearing acuity. In the left ear, there was an average pure tone threshold of 81 decibels and 24 percent of speech discrimination, for Level XI hearing acuity. Combining the hearing acuity findings as required under the rating schedule equates to a 10 percent rating. On the third audiometric evaluation, the VA evaluation in August 1991, the veteran's right ear demonstrated an average pure tone threshold of 44 decibels and 100 percent of speech discrimination, for Level I hearing acuity. In the left ear, there was an average pure tone threshold of 103 decibels and 0 percent of speech discrimination, for Level XI hearing acuity. Again, combining the hearing acuity findings as required under the rating schedule equates to a 10 percent rating. The veteran's contentions have been considered. However, the Court has held that, "[R]atings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendemann v. Principi, 3 Vet. App. 345 (1992). Here, such application results in the 10 percent rating now in effect for the veteran's service- connected bilateral defective hearing prior to May 23, 1995. As the evidence does not support the granting of a rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995, the claim is denied. ORDER Service connection for a right knee disability is denied. Service connection for a right elbow disability is denied. A rating in excess of 10 percent for bilateral defective hearing prior to May 23, 1995 is denied. REMAND With regard to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to primary service connection for a back disability, the Board denied primary and secondary service connection for a back disorder in June 1971 and found that no new and material evidence had been submitted to reopen such a claim in November 1978 an January 1985. Those decisions are final, and are not subject to revision on the same factual basis. 38 U.S.C.A. § 7105. To reopen the claim, the claimant must present or secure new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a). In accordance with 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted which bears directly and substantially upon the subject matter under consideration, which is neither cumulative or redundant, and which by itself or in consideration with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356. The Court has held that the Board must perform a two-step analysis when a claimant seeks to reopen a claim based on new evidence. First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The case law of the Court previously required that a third question to be resolved in the Manio analysis was whether, in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991); see Evans v. Brown, 9 Vet. App. 273, 283 (1996). However, the United States Court of Appeals for the Federal Circuit has held that this judicially created standard is inconsistent with the language of 38 C.F.R. § 3.156(a), and has overruled the extension of the Manio analysis. See Hodge v. West, 155 F. 3d. 1356 (1998). Inasmuch as the January 1997 rating action was based, in part, on the standard which was struck down in Hodge, supra, a remand is necessary to allow the RO to apply the standards set forth therein. With regard to the claim for an increased rating for bilateral defective hearing, currently rated 20 percent disabling, the Board finds that the claim is well-grounded. Proscelle, 2 Vet. App. at 632. During VA audiometric evaluation on May 23, 1995, the veteran's right ear showed an average pure tone threshold of 60 decibels and speech discrimination of 88 percent, for Level III hearing acuity. The left ear demonstrated an average pure tone threshold of 105 decibels and speech discrimination of 0 percent, for Level XI hearing acuity. Combining the hearing acuity findings as required under the rating schedule equates to a 20 percent rating. On this basis, the RO increased the rating for the veteran's bilateral defective hearing to 20 percent in a January 1997 rating decision. As the claim for an increased rating for bilateral defective hearing is well-grounded, VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a). The veteran has indicated in statements that his hearing has worsened since May 1995. As such, the Board cannot base a current rating for bilateral defective hearing on an examination that is over four years old. Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the issue of whether new and material evidence has been submitted to reopen a claim of primary service connection for a back disability and the claim for a current increased rating for bilateral defective hearing are REMANDED to the RO for the following: 1. The RO should review the record and readjudicate the issue of whether new and material evidence has been submitted to reopen a claim for primary service connection for a back disability. The RO is directed to adjudicate the claim based only on consideration of the holding in Hodge, supra, and on 38 C.F.R. § 3.156. In the event that new and material evidence is found, the claim should be reopened and considered on the basis of all the evidence both old and new. 2. The RO should contact the veteran and obtain the names and addresses of all VA and private health care providers who have treated him for bilateral defective hearing since May 1995. After obtaining any necessary releases, complete copies of all clinical records identified, which have not been previously associated with the claims folder, should be obtained. 3. The veteran should then be scheduled for a VA audiometric evaluation, to determine the current severity of his bilateral defective hearing. All audiometric findings should be reported in detail. 4. Following completion of the foregoing development, the RO should review the claims and determine whether they may be granted. If either of the claims remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and given an opportunity to respond. The case should then be forwarded to the Board for further appellate consideration. No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals