Citation Nr: 0002217 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-09 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a perforated right ear drum. 2. Entitlement to service connection for tinnitus. 3. Whether there was clear and unmistakable error in a January 17, 1986, rating decision that denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches. 4. Entitlement to a compensable disability rating for a service-connected scarred left ear drum. 5. Entitlement to an increased disability rating for service-connected bilateral pes planus with degenerative changes of the feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from February 1945 to May 1946 in the United States (U.S.) Coast Guard and from July 1950 to September 1953 in the U.S. Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied entitlement to service connection for a perforated right ear drum and tinnitus; found that there was no clear and unmistakable error in a 1986 rating decision that denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches; denied entitlement to a compensable disability rating for a service- connected scarred left ear drum; denied entitlement to a compensable disability rating for service-connected bilateral pes planus with degenerative changes of the feet; and denied entitlement to a compensable disability evaluation under 38 C.F.R. § 3.324. In November 1997, the RO assigned a disability evaluation of 10 percent for the service-connected bilateral pes planus with degenerative changes of the feet. Because the RO granted a compensable disability rating for this condition, consideration of a 10 percent evaluation under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities became moot. The veteran has also claimed entitlement to service connection for a prostate disorder, residuals of an eye injury, a foot fungus, residuals of an injury to the penis and testicles, a stomach disorder, and painful ankles. These claims have not yet been adjudicated are referred to the RO for appropriate action. The veteran submitted duplicate evidence to the RO in July 1999. The RO forwarded this evidence to the Board in August 1999. The veteran has not waived RO consideration of this evidence; however, as it is duplicative of that already of record, a remand to the RO is not warranted. 38 C.F.R. §§ 19.31, 19.37 (1999). The claim of entitlement to an increased disability rating for service-connected bilateral pes planus with degenerative changes of the feet is addressed in the remand immediately following this decision. FINDINGS OF FACT 1. No medical evidence has been presented or secured to render plausible a claim that any current perforated right ear drum is the result of a disease or injury incurred in service. 2. No medical evidence has been presented or secured to render plausible a claim that any current tinnitus is the result of a disease or injury incurred in service. 3. The RO denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches in a January 1986 rating decision. The RO advised the veteran of this decision and of his appellate rights in February 1986. He did not appeal. 4. The veteran has not alleged specific errors of fact or law in the January 17, 1986, rating decision. 5. The veteran is currently receiving the maximum schedular disability rating for a scarred left ear drum. CONCLUSIONS OF LAW 1. The claim for service connection for a perforated right ear drum is not well grounded and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for tinnitus is not well grounded and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 3. The January 1986 RO decision denying a claim for service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). 4. The veteran has not submitted a valid claim of clear and unmistakable error in the January 17, 1986, rating action that denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches. 38 U.S.C.A. § 5107(a) (West 1991). 5. There is no legal basis for a compensable schedular evaluation for a scarred left ear drum. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6211 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The veteran's service medical records from his first period of active duty disclose no complaints or findings of a perforated right ear drum, tinnitus, a low back disorder, spinal meningitis, hearing loss, or sinus congestion with headaches. He was hospitalized in March 1945 with a diagnosis of acute pharyngitis. On separation examination in May 1946, examination of the right ear (including condition of the drum) was normal. Hearing was 30/30 to conversational speech and 15/15 to whispered voice bilaterally. Examination of the nose, spine and nervous system was normal. The left ear drum was scarred. Service medical records from the veteran's second period of active duty disclose normal examination, including of the spine, on entrance examination in July 1950. He sought treatment after being kneed in the right back while playing football in November 1951. The impression was contusion and fracture of the fifth rib. Follow-up treatment notes indicate that the veteran was healing. He reported that he felt well in December 1953 and returned to full duty. In April 1952, the veteran complained of pain in his mid-back that radiated to his neck and the back of his head, as well as chills, fever, a throbbing headache, nausea and vomiting. Neurological examination was negative. There was tenderness over the lower dorsal vertebrae and paravertebral muscles. The veteran was hospitalized for medical observation of a possible central nervous system infection. The final diagnoses in July 1952 included pneumonia, primary, atypical, cured on admission; meningismus, due to pneumonia, cured on admission; and medical observation for headaches. In September 1952, the veteran complained of mid-lumbar and lower back pain. He reported the onset of this condition at the time of his meningitis. Examination was negative except for tenderness over L4 and pain referred there by leg raising and flexion of the hip. The impression was unstable back syndrome. X-rays of the spine were normal. The veteran was hospitalized from October to November 1952 for evaluation of persistent low back pain. He reported the onset of back pain since a spinal tap in April. Physical examination was negative for evidence of orthopedic or neurological pathology. Routine laboratory studies were within normal limits. Observation of the veteran about the ward revealed no demonstrable disability. Orthopedic consultation produced no positive findings. The veteran was returned to duty with a diagnosis of psychogenic musculoskeletal reaction, manifested by weakness and backache. On separation examination in August 1953, the veteran denied any frequent or severe headaches; ear, nose or throat trouble; running ears; or arthritis or rheumatism. Physical examination was normal, including of the nose; sinuses; right ear drum (perforation); spine; and neurologic system. There were calcium deposits of the left ear drum. Hearing was 15/15 to whispered voice bilaterally. Following his first separation from service, the veteran was awarded service connection for a scarred left eardrum, evaluated as noncompensable, by means of a June 1946 rating decision. The veteran claimed entitlement to service connection for a low back disorder in January 1947. He stated that his back pain began in February 1945 while rowing crew for one month. He was not treated during service, but was reportedly treated for back trouble by Dr. Paul H. Swezey in January 1947. The RO denied entitlement to service connection for a low back disorder in February 1949. The veteran was notified of the RO's decision by letter dated February 21, 1949. He did not appeal. In 1985, the veteran claimed entitlement to service connection for a low back disorder, sinusitis, headaches, hearing loss, and spinal meningitis. He stated that he injured his low back rowing crew in 1945 and 1946, was hit in the back playing football in 1951, and was treated for hearing problems and sinusitis in 1945 and for spinal meningitis in 1952 and 1953. Following service, he was reportedly treated by Dr. Lindsey DeGuehery for a back disorder, but he did not provide the dates of treatment. He also stated that he was treated by different doctors over the years but did not have records of their names. The veteran was examined by Francis W. Brooks, D.O. in August 1985. He reported that he was treated for spinal meningitis during active service in 1952. He also admitted to back problems. He stated that he got headaches from tobacco smoke, had decreased hearing as result of exposure to loud noise during service, and admitted to occasional sinusitis. Pertinent diagnoses included hearing loss with perforation of the right tympanic membrane and scarring on the left with possible neurosensory pathologies; compound scoliosis of the cervical and thoracolumbar spine with kyphosis; and suboccipital neuralgia. On examination by Dr. Brooks in November and December 1985, the veteran complained of back pain. He was involved in an automobile accident in November 1985. The tympanic membranes were scarred with perforation. Additional diagnoses included flexion-extension injury of the spine with cervical and thoracolumbar strain; myofascitis; and multiple musculoskeletal injuries, status post motor vehicle accident with multiple body contusions with myofascitis, somatic dysfunctions, tendonitis and bursitis. In January 1986, the RO denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches. Service connection for a low back disorder (diagnosed in service as a psychogenic musculoskeletal reaction), spinal meningitis, and sinus congestion with headaches were denied on the grounds that the conditions were acute and transitory and not found on separation examination. It was noted that the veteran's current back problems appeared to be the result of a recent automobile accident. Service connection for hearing loss was denied on the grounds that, if existent, it was not incurred or aggravated during active service. The veteran was notified of the RO's decision and of his appellate rights by means of a February 5, 1986, letter. He did not appeal. The veteran was examined by VA in April 1990. He reported that he was exposed to explosions on several occasion during active service. He gave a history of a concussion in December 1965 as the result of a motor vehicle accident. Examination of the tympanic membranes revealed significant scarring with evidence for old posterior tympanic membrane rupture; the right tympanic membrane was clear. The veteran sought reevaluation of the disability rating assigned for his service-connected scarred left ear drum in April 1995. In May 1995, he stated that the RO's denial of service connection for hearing loss was clearly and unmistakably erroneous because "hearing loss cannot be acute & transitory and I have to wear hearing aids in both ears." The veteran stated in September 1995 that the 1986 rating decision that denied entitlement to service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches was clearly and unmistakably erroneous. VA treatment records dated from 1990 to 1995 were thereafter associated with the claims folder. In March 1990, the veteran gave a history of exposure to heavy gunfire during service. A five inch gun reportedly went off over his head and he could not hear for some time. On examination, the left ear drum was very badly scarred but a definite perforation was not seen. The right drum had a healed perforation. The veteran was afforded a VA audio examination in November 1995. He was reportedly near explosions and had episodes of perforated eardrum while aboard a destroyer during active service. He complained of tinnitus of the right ear, questionably periodic. Ear, nose and throat examination was recommended due to the veteran's history of ear drum perforation. According to the RO, the veteran was scheduled for such an examination but failed to report; however, this in not reflected by any evidence in the claims file. Additional VA treatment records dated from 1995 to 1996 showed that in March 1996 the veteran gave a history of tympanic membrane perforation (left or right?). He also reported increased tinnitus on the left and a "squash" sound behind his right ear. A tympanogram for the right ear was Type A and for the left ear was Type AS (stiff), consistent with a history of tympanic membrane perforation. In May 1996, the veteran gave a history of military noise exposure on ships and while working around aircraft. He complained of left ear problems. He could not tolerate sounds at 70 decibels in the left ear because they were distorted and annoying. He also reported a history of perforated ear drums, when a gun swung around and went off near his ear. He stated that his ears were leaking and he could not hear for days. He also reported that tinnitus of both ears had been constant for many years. Auditory brain responses were normal. The additional VA records also showed treatment for sinus problems with headaches, hearing loss, and low back problems. The veteran further gave a history of spinal meningitis. Also associated with the claims folder are March 1987 and November 1986 Social Security Administration (SSA) decisions, as well as records upon which those decision were made. In November 1986, the veteran claimed that he was unable to work due to, inter alia, a severe sinus condition, a bad spine, and residuals of spinal meningitis. Howard S. Buchoff, M.D. diagnosed the veteran as having chronic low back pain in September 1986. The veteran testified at a personal hearing at the RO in January 1997. He stated that he incurred several conditions during active service, i.e., that he injured his low back in 1945 in a crew race; that he was hospitalized for a high fever, throbbing headache, vomiting, dizziness and sinus congestion; that he was diagnosed as having spinal meningitis; that he reinjured his back in 1946 when he was slammed against a bulkhead; that his back was injured by spinal taps; that he was hit in the back while playing football; that he suffered perforated eardrums while on a construction crew; and that he was exposed to noise from gunfire and jet engines during active service resulting in hearing loss. The veteran also reported the onset of ringing in his ears about four or five years ago. He felt that there was sufficient evidence of record in 1986 to grant his claims for service connection for these disabilities. He stated that the conditions were documented in the medical records and that VA ignored them. He felt that VA should make attempts to obtain log book entries from the ships where he served. Concerning his left eardrum, the veteran stated that he had problems recognizing sounds and tones. Subsequent efforts undertaken by the RO to obtain additional service medical records, Surgeon General's Office records and log book entries were unsuccessful. In January 1997, the veteran provided copies of 38 U.S.C.A. §§ 1153, 1154(a), and 1155; service personnel records; a May 1946 Medical History Questionnaire, in which he reported incurring eye and ear disabilities during service; and articles concerning the application of 38 C.F.R. § 4.16(b) as well as an articles and photo indicating that he was a member of a crew team during active service. II. Legal analysis A. Service connection for a perforated right eardrum and tinnitus Establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A well-grounded claim for direct service connection generally requires (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 in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75- 76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the medical evidence of record indicates that the veteran currently suffers from a perforated right ear drum and tinnitus. These disabilities were first diagnosed many years after service in 1985 and 1995, respectively. Therefore, the Board finds that there is sufficient medical evidence of a current disability, and the first element of a well-grounded claim has been satisfied. The veteran maintains that he suffered a perforated right ear drum when a gun went off near his ear during active service and as a result of working on a construction crew. He also reported the onset of tinnitus during active service, including as a result of noise exposure. In view of the foregoing, the Board finds that there is sufficient lay evidence of incurrence of an injury during service, and the second element of a well-grounded claim has been satisfied. However, the veteran has not satisfied the third element of a well-grounded claim for service connection. He has reported constant tinnitus for many years, as well as the onset of a perforated right ear drum during active service. Presuming the history of continuity of symptomatology since active service to be credible for the purpose of establishing a well-grounded claim, there is still no medical evidence of record of a nexus between the present disabilities and the post-service symptomatology. Savage, 10 Vet. App. at 497 (holding that veteran's own testimony that he sustained a back injury in service, walked with a limp ever since, and received heat treatments over the years is presumed credible for the purpose of establishing a well grounded claim because it is not inherently incredible or beyond the competence of a lay person to observe and continuity of symptomatology had therefore been established even if the record did not contain service medical records showing treatment in service for a back problem); see Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (per curiam order noting Board's fundamental authority to decide a claim in the alternative). Medical expertise is required to relate the present disabilities etiologically to the veteran's post-service symptoms. However, there are no medical opinions contained in any of the veteran's post- service medical records relating the current perforated right ear drum or tinnitus to any inservice disease or injury or to the post-service symptomatology. The veteran is not competent to ascribe his post-service difficulties to active service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although the veteran may have continuously experienced ear symptomatology since active service, there is no medical evidence in the record at all tending to show that there were underlying chronic disabilities which caused the symptoms in service and that underlying disabilities also have caused all the intermittent complaints of symptomatology experienced since service. Similarly, there is no medical evidence tending to show that the inservice symptoms represented a chronic perforated right ear drum and tinnitus rather than acute and transitory conditions. Because no medical evidence has been presented or secured to render plausible a claim that the perforated right ear drum and tinnitus, diagnosed many years after service, had their onset in service or are the result of, or related to, any disease contracted or injury sustained in active military service, the Board concludes that these claims are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate a claim on the merits unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground the veteran's claims for service connection for a perforated right ear drum and tinnitus. Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to the veteran's claims under 38 U.S.C.A. § 5103(a) (West 1991). B. Whether there was clear and unmistakable error in a January 1986 rating decision The RO denied the veteran's claims for service connection for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches in January 1986 and notified him of this decision by letter dated February 5, 1986. The notification letter was sent to the veteran at the last known address of record, and there is no evidence in the claims file that this letter was returned to the RO as undelivered. Accordingly, the veteran was properly notified of the February 1986 rating decision. Because the veteran did not file a notice of disagreement with that decision within one year, the rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1999). The Board finds that a claim of clear and unmistakable error in the January 17, 1986, rating decision has not been pled with sufficient specificity to raise a valid claim. The Court has held that a finding of clear and unmistakable error in a prior rating decision requires error in the prior adjudication of the claim. A claim for clear and unmistakable error must be specific and not a mere broad allegation of a failure to follow the regulations, or the failure to give due process, or any other general, unspecific error. Mindenhall v. Brown, 7 Vet. App. 271, 275, citing Fugo v. Brown, 6 Vet. App. at 44 (1993). The Court has explained that a mere difference of opinion as to the facts or disagreement with the original decision and its interpretation of the facts is not to be of the type of administrative reversible error under 38 C.F.R. § 3.105(a). Russell v. Principi, 3 Vet. App. 310 (1992) (an appellant must assert "more than a disagreement as to how the facts were weighed or evaluated"); Robie v. Derwinski, 1 Vet. App. 612, 614-615 (1991);. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991); Thompson v. Derwinski, 1 Vet. App. 251 (1991). In particular, the Court has promulgated a three- pronged test to determine whether clear and unmistakable error is present in a prior determination: (1) [e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), (quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The Court has further held that, in order for a claimant to successfully establish a valid claim for clear and unmistakable error in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error that, if true, would be clear and unmistakable error on its face, the claimant must provide persuasive reasons explaining why the result of the final RO rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo v. Brown, 6 Vet. App. 40, 44 (1993); review en banc denied, 6 Vet. App. 162 (1994). The veteran has alleged clear and unmistakable error in the 1986 rating decision; however, he has cited no law or regulations relevant to such a claim. Moreover, he has not articulated with specificity an error of fact committed on the part of the RO in conjunction with that rating decision that would constitute clear and unmistakable error on its face, and he has not provided persuasive reasons explaining why the result of the final RO rating decision would have been manifestly different but for the alleged error. The veteran argues that there was sufficient evidence of record in 1986 to grant his claims for service connection for his claimed disabilities. To the extent that he contends that there was another, perhaps more persuasive, view of the evidence that should have led the RO to award service connection in 1986 for a low back disorder, spinal meningitis, hearing loss, and sinus congestion with headaches, the Board finds that any error by the RO in not making such an award would nonetheless not fit the definition of clear and unmistakable error: "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Accordingly, because this position amounts to no more than "a disagreement as to how the facts were weighed or evaluated," it cannot form the basis of a clear and unmistakable error claim. Russell v. Principi, 3 Vet. App. 310 (1992). Simply to claim clear and unmistakable error on the basis that a previous adjudication had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Fugo v. Brown, 6 Vet. App. at 43-44 (1993). The veteran has provided copies of 38 U.S.C.A. §§ 1153, 1154(a), and 1155 and 38 C.F.R. § 4.16(b); although he did not argue their application to the 1986 rating decision. To the extent that he is claiming that these regulations were not properly applied in 1986, the Board finds that U.S.C.A. § 1155 and 38 C.F.R. § 4.16(b) are not applicable to claims for service connection; nor did the veteran claim or did the evidence support a claim for service connection based on aggravation, requiring the application of 38 U.S.C.A. § 1153. With respect to 38 U.S.C.A. § 1154(a), pursuant to the presumption of regularity attending the official acts of public officers, it must be concluded that all relevant law and evidence was considered. Dolan v. Brown, 9 Vet. App. 358, 362 (1996). Accordingly, the Board concludes that clear and unmistakable error has not been pled with the required specificity in this case to establish a valid claim. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo v. Brown, 6 Vet. App. 40, 44 (1993); review en banc denied, 6 Vet. App. 162 (1994). C. Compensable schedular evaluation for a scarred left ear drum Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). The veteran's scarred left ear drum is rated under Diagnostic Code 6211. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, Schedule of ratings - ear. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the amended regulations did not result in any changes to Diagnostic Code 6211. Therefore, the veteran will not be prejudiced by the Board's adjudication of this claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran is already receiving the maximum evaluation under the applicable diagnostic criteria for a perforation of the tympanic membrane. 38 C.F.R. § 4.87a, Diagnostic Code 6211 (1999). Diagnostic Code 6211 provides a noncompensable disability rating for perforation of the tympanic membrane. The noncompensable disability rating assigned for this disability encompasses a level of compensation for any impairment in earning capacity due to these symptoms. There is a lack of entitlement under the law to a higher schedular evaluation. In this case, the facts are not in dispute, and the application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be terminated. See Sabonis v. Brown, 6 Vet. App. 426, 429-430 (1994). ORDER Having found the claim not well grounded, entitlement to service connection for a perforated right ear drum is denied. Having found the claim not well grounded, entitlement to service connection for tinnitus is denied. The claim of clear and unmistakable error in the January 17, 1986, rating decision is denied. There being no entitlement under the law to a higher schedular evaluation, entitlement to a compensable disability rating for a scarred left ear drum is denied. REMAND Increased disability rating for service-connected bilateral pes planus with degenerative changes of the feet The veteran's foot disability is rated pursuant to Diagnostic Codes 5010-5276. The provisions of sections 38 C.F.R. §§ 4.40 and 4.45 apply to diagnostic codes that involve limitation of motion, such as Diagnostic Code 5010. Therefore, consideration must be given to the criteria discussed in DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995), and VA is required to obtain adequate and competent evidence that will permit an informed assessment of whether greater limitation of motion or additional functional loss is likely to arise on use or during flare-ups. See 38 C.F.R. § 4.40, 4.45 (1999). Therefore, further development is required in this regard. Accordingly, in order to assure informed appellate review, the claim is remanded to the RO for the following: 1. Request that the veteran provide a list of those who have treated him for his service-connected bilateral pes planus with degenerative changes of the feet since 1996. Request all records of any treatment reported by the veteran that are not already in the claims file. With respect to any VA records, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. If requests for any private treatment records are not successful, tell the appellant and his representative so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 CFR 3.159(c). 2. Schedule the veteran for an appropriate VA examination of the feet. The examiner should be provided a copy of this remand together with the veteran's entire claims folder, and the examiner is asked to indicate that he or she has reviewed the claims folder. All necessary tests, including x-rays if indicated, should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all residuals attributable to the veteran's service-connected bilateral pes planus with degenerative changes of the feet. The examiner should note the range of motion for the feet and should state what is considered normal range of motion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare- ups or when the feet are used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Each foot should be assessed separately. The examiner should specifically state whether there is any pain on manipulation and use accentuated, deformity (pronation, abduction, etc.) and the extent thereof, indication of swelling on use, characteristic callosities, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, and whether there is any improvement or relief of symptomatology with the use of orthopedic shoes or appliances. The examiner should distinguish to the extent possible between symptomatology resulting from the veteran's service-connected bilateral pes planus with degenerative changes of the feet, and any other nonservice-connected disorders of the feet shown by the medical evidence, if present. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report. Any indications that the veteran's complaints of pain or other symptomatology are not in accord with physical findings on examination should be directly addressed and discussed in the examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If further testing or examination by other specialists is determined to be warranted in order to evaluate the residuals of the condition in issue, such testing or examination is to be accomplished. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the veteran's claim, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand, including the VA examination. 5. If the decision with respect to the claim remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Thereafter, the claim is to be returned to the Board, following applicable appellate procedure. The veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals