Citation Nr: 0000401 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-03 379A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from April 1952 to April 1956, and from June 1956 to January 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision from the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The claim of entitlement to service connection for tinnitus is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. All relevant evidence necessary for an equitable disposition of the issue of entitlement to an increased rating for hearing loss has been obtained. 3. The probative medical evidence shows that the veteran has Level VI hearing acuity in his right ear and Level III hearing acuity in his left ear. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Tables VI, VII, Diagnostic Code 6100 (effective prior to June 10 1999); 38 C.F.R. §§ 4.85, 4.86(a), 4.87, Tables VI, VIA, VII, Diagnostic Code 6100; 64 Fed. Reg. 25202-25210 (May 11, 1999) (effective June 10, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Tinnitus Factual Background Service medical records show no documentation of complaints, treatment, or a diagnosis of tinnitus. The separation examination in January 1960 did not document a diagnosis of tinnitus. On VA examination in July 1965, the veteran reported experiencing a 24-hour period of deafness and tinnitus following exposure to jet engine noise. On examination, it was noted that there was no tinnitus. On VA examination for defective hearing in November 1966, it was specifically noted that there was no complaint of aural tinnitus. During VA examinations for defective hearing in February 1968 and in July 1970, it was noted that there was no complaint of aural tinnitus. On VA examination for hearing in August 1973, it was noted that there was no complaint of aural tinnitus. Post-service medical records show a diagnosis of decreased hearing in June 1995; however, there is no documentation of a diagnosis or complaint of tinnitus. In December 1996, the veteran submitted a claim, in pertinent part, for service connection for tinnitus, contending that it was caused during his military service. During a VA general medical examination in April 1997, the veteran reported hearing loss; however, there is no documentation of complaints or a diagnosis of tinnitus. On VA audio examination in April 1997, the veteran reported periodic, severe tinnitus in both ears, indicating that he had noticed it for the past seven to eight months. In April 1998 a VA examiner provided an advisory opinion concerning the issue of whether tinnitus was related to service. Upon review of the record, the VA examiner concluded that the first incident of complaints of tinnitus was in December 1996. He concluded that the medical evidence appeared not to document, and in fact specifically excluded the presence of tinnitus up to the last audiology examination, which he stated was performed in August 1973. The examiner concluded that he was unable to verify service connection for tinnitus based on review of the claims file and the veteran's service records. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary 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 United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of 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). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 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) (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). When there is aggravation of a nonservice-connected condition, which is proximately due to, or the result of service-connected disease or injury, the veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to service connection for tinnitus must be denied as not well grounded. The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. The service medical records show no in-service treatment for tinnitus; however, the veteran reported on VA examination in June 1965 that he experienced a 24-hour period of deafness and tinnitus while in the service in 1959. The record shows that the veteran reported periodic, severe tinnitus on VA examination in April 1997. However, he has failed to provide medical evidence of a nexus between his current tinnitus disability and military service. There are no documented medical opinions or other competent evidence of record linking current tinnitus disability to service. Nor has he provided competent medical evidence indicating that his tinnitus was aggravated by a service connected condition. See Allen, supra. The reference to suffering from a 24-hour period of tinnitus while in the service in the June 1965 VA examination report is not competent evidence of a nexus between tinnitus and service. First, the June 1965 examination report indicates that the veteran currently denied symptoms of tinnitus. Second, this statement merely noted the veteran's medical history and was not enhanced by additional comment. Evidence which is simply information recorded by a medical examiner unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In addition, there is no evidence indicating chronic tinnitus in service. The Board notes that while the veteran reported experiencing tinnitus in service on VA examination in June 1965, it was noted on that examination and subsequent VA examinations in November 1966, February 1968, July 1970, and August 1973 that there was no complaint of aural tinnitus; the first post-service medical documentation of a complaint of tinnitus was not until the April 1997 VA audiology examination, more than 20 years after his discharge from service. Additionally, on VA examination in April 1997, the veteran reported that he had been noticing tinnitus for only the past seven or eight months. See Savage v. Gober, 10 Vet. App. 488 (1997). The veteran's own opinions and statements will not suffice to well-ground his claim. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's tinnitus is related to a disease or injury incurred during service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Because the veteran has failed to provide competent evidence of a nexus between his tinnitus and service, the Board finds that his claim of entitlement to service connection for tinnitus must be denied as not well grounded. The Board notes that the August 1998 VA examiner appeared to make some incorrect statements regarding the evidence of record. Nonetheless, the record shows that the veteran's claim for service connection is not well grounded as there is no competent evidence in the record of a nexus between tinnitus and service. By ordering an advisory opinion, the RO was affording the claim greater consideration than it actually warranted, as the issue had not been found to be well grounded. See Voerth v. West, No. 95-904 (U.S. Vet. App. Oct. 15, 1999). VA has a duty to assist only those appellants who have established well-grounded claims. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). The Court has also held that in the absence of a well grounded claim, VA could not undertake to assist a veteran in developing the facts pertinent to the claim. Morton v. West, 12 Vet. App. 477 (1999). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran's claim of entitlement to service connection for tinnitus is not well grounded, the doctrine of reasonable doubt has no application to his claim. Increased Rating for Bilateral Hearing Loss Factual Background The pertinent evidence of record shows that, in December 1996, the veteran submitted, in pertinent part, a claim alleging that his hearing had decreased. Pursuant to this claim, a VA audiology examination was conducted in April 1997. On examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 55 70 85 95 LEFT 25 50 80 80 90 Puretone threshold average was 76 in the right ear and 75 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear. Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life, with specific reference to employment. 38 C.F.R. § 4.10. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the VA Rating Schedule that addresses the ear and other sense organs was recently amended, effective June 10, 1999. 64 Fed. Reg. 25202 (1999). Thus, the regulatory criteria governing the evaluation of the veteran's bilateral hearing loss changed while his claim was pending. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the previous regulations, evaluations of bilateral defective hearing ranged from noncompensable to 100 percent 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 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110 (effective before June 10, 1999). Under the previous regulations, Table VIa was used only when the Chief of the Audiology Clinic certified that language difficulties or inconsistent speech audiometry scores made the use of both puretone average and speech discrimination inappropriate. 38 C.F.R. § 4.85(c) (effective before June 10, 1999). The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (effective after June 10, 1999). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c) (1999). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (1999). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b) (1999). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (finding that entitlement need not be established by a fair preponderance of the evidence). Analysis Initially, the Board notes that the veteran's claim is found to be well grounded under 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that the most recent VA examination of the veteran's hearing acuity was conducted in April 1997. The Board concludes that this examination is adequate for rating purposes because the veteran has not contended that his hearing loss has increased in severity since that examination. In addition, the April 1997 VA examination was comprehensive and accounted for the factors in the Diagnostic Code such as puretone threshold levels, puretone threshold average, and speech discrimination percentage. Therefore, the record contains medical evidence sufficient to determine the veteran's level or levels of his service-connected bilateral hearing loss. In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's hearing loss. The Board has found nothing in the historical record that would lead to a conclusion that the evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories. Following a review of the record, the Board finds that the probative evidence shows that the veteran is not entitled to an evaluation in excess of 20 percent for bilateral hearing loss under either the previous or amended regulations. The April 1997 VA audio examination report shows the veteran's puretone average was 76 in the right ear and 75 in the left ear. Speech recognition was found to be 88 percent in the right ear and 88 percent in the left ear. Under Table VI of both the previous and amended regulations, the veteran's hearing level during the April 1997 VA examination was Level III in both his right and left ears. Under Table VII of both the previous and amended regulations, Level III hearing acuity in both ears allows for a noncompensable evaluation. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. A rating in excess of 20 percent is not warranted under Table VIa under either the previous or amended regulations. Table VIa under the previous regulations is not for application because it was not certified that there were language difficulties or inconsistent speech audiometry scores that made the use of both puretone average and speech discrimination inappropriate. See 38 C.F.R. § 4.85(c) (1998). Under the current regulations, Table VIa can be applied to the veteran's right ear because pure tone results for the right ear revealed puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) to be at 55 decibels or more. It cannot be applied to the left ear because puretone threshold was not 55 or more at each of the four specified frequencies. See 38 C.F.R. §4.86(a) (1999). Nonetheless, a rating in excess of 20 percent for bilateral hearing loss is not warranted even with application of Table VIa under the current regulations. Under Table VIa, the veteran's puretone threshold average for the right ear is Level VI. As was stated above, the puretone threshold average of the left ear is Level III. Under Table VII of the amended regulations, Level VI hearing in the poorer ear and Level III hearing in the better ear allows for a 10 percent evaluation. 38 C.F.R. §§ 4.85 and 4.86, Tables VI, VIa, and VII (1999). Therefore, the Board finds that an evaluation greater than 20 percent for the veteran's bilateral hearing loss disability is not warranted under the previous or amended regulations. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes that the veteran's current bilateral hearing loss disability was not evaluated by the RO under the schedule as amended nor have the veteran and his representative been notified of these modifications in a supplemental statement of the case. It has been held that the Board may consider regulations not considered by the agency of original jurisdiction if the claimant will not be prejudiced by the Board's action in applying those regulations in the first instance. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The majority of the changes to the hearing impairment criteria appear to be non-substantive (the frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been changed), except for the revision of 38 C.F.R. § 4.86 (exceptional patterns of hearing impairment). See 64 Fed. Reg. 25202 (1999). The Board notes that section 4.86(a) is applicable to the veteran in terms of his right ear. Nonetheless, the veteran is not prejudiced in this case because application of either the previous or amended regulations would not result in a higher rating than what he is currently receiving. In fact, they both would result in lower ratings than what he is currently receiving; however, absent a showing of fraud, these regulations cannot be used to reduce the veteran's current disability rating for his hearing loss because the rating in this case has been in effect since March 1965. See 38 C.F.R. § 3.951(b) (1999). The Board finds, therefore, that this decision is not prejudicial to the veteran because the majority of the changes in the regulation are non-substantive and because those that are have no effect on the outcome of the veteran's claim. See Bernard, supra.; see also Edenfield v. Brown, 8 Vet. App. 384 (1995). Following a full review of the record, the Board finds that the evidence is not so evenly balanced as to require application of the benefit of the doubt in favor of the veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The veteran, not having submitted a well grounded claim of entitlement to service connection for tinnitus, the appeal is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals