BVA9505529 DOCKET NO. 92-01 272 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral sensorineural hearing loss. 2. Entitlement to service connection for disabilities of the neck, back and upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from February 1965 until February 1971. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his hearing loss is getting worse, especially in his left ear. He says that it is difficult to understand conversation in groups and that he has been told that hearing aids would not help him. The veteran further contends that his neck, shoulders, elbows, back, wrists and hands bother him and he experiences numbness in his right forearm and fatigue in his left arm. All these conditions he attributes to the time he was hit by an automobile while he was in service. As such, he maintains that these conditions should be service connected as secondary residuals of his service- connected left elbow disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased (compensable) rating for bilateral sensorineural hearing loss and against the claim for service connection for disabilities of the neck, back, and upper extremities. FINDINGS OF FACT 1. The veteran's bilateral sensorineural hearing loss is manifest by level II hearing in the right ear and level III hearing in the left ear. 2. An exceptional or unusual disability picture is not shown to be associated with the veteran's bilateral sensorineural hearing loss. 3. The veteran is service connected for the residual scar of a left elbow laceration, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and for bilateral sensorineural hearing loss, rated 0 percent disabling, for a combined 20 percent disability evaluation. 4. The veteran's neck, back and upper extremities disorders were first shown many years after he was separated from active duty service and the medical evidence does not report an etiological relationship between the veteran's current neck, back, and upper extremities disorders and a service connected disability. CONCLUSIONS OF LAW 1. The schedular and extraschedular criteria for the assignment of an increased (compensable) rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100 (1994). 2. Currently claimed disabilities of the neck, back, and upper extremities were not incurred in active duty service nor were they proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). I. Increased Rating Factual Background The RO, in a rating decision dated in January 1973, granted the veteran service connection for bilateral sensorineural hearing loss. The decision was based on the veteran's medical and work history while he was on active duty which showed that he had been exposed to the noise of jet engines. A noncompensable disability rating was assigned, effective from 1972. Subsequent audiological evaluation results have confirmed the noncompensable rating for bilateral sensorineural hearing loss. In 1991, the veteran reopened his claim contending that his hearing has gotten worse, particularly in his left ear. Analysis The VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.41 (1994). Evaluations of bilateral defective hearing range 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 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral service- connected defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (1994). Under the VA's Schedule for Rating Disabilities, the eleven acuity levels are found in Diagnostic Codes (Code) 6100 to 6110. Under Code 6100, a zero percent rating is assigned for bilateral defective hearing where the pure tone threshold average in one ear is from 0 to 41 decibels, with speech discrimination ability of 92 to 100 percent correct, (level I), and, in the other ear, the pure tone threshold average is 42 to 49 decibels, with speech discrimination ability of 92 to 100 percent correct, (level I). A zero percent rating is also assigned where the pure tone threshold average in one ear is from 0 to 41 decibels, with speech discrimination ability of 84 to 90 percent correct, (level II), and, in the other ear, the pure tone threshold average is 42 to 49 decibels, with speech discrimination ability of 76 to 82 percent correct, (level III). 38 C.F.R. § 4.85 (1991). On VA audiological evaluation in June 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT xxx 15 10 5 20 LEFT xxx 15 20 60 95 The pure tone threshold average in the right ear was 12.5 decibels, with speech discrimination ability of 100 percent correct, (level I), and pure tone threshold average in the left ear was 47.5 decibels, with speech discrimination ability of 96 percent correct (level I). On VA audiological evaluation in September 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT xxx 15 10 5 15 LEFT xxx 15 20 65 90 The pure tone threshold average in the right ear was 11.25 decibels, with speech discrimination ability of 90 percent correct, (level II), and the pure tone threshold average in the left ear was 47.5 decibels, with speech discrimination ability of 80 percent correct, (level III). The results of these audiological examinations show that the veteran had level I hearing in both ears in 1989. In 1991, he had level II hearing in the right ear and level III in the left ear. Such findings, even with an increase in auditory acuity levels signifying an increase in hearing loss, still does not meet the criteria for a compensable schedular rating under Codes 6100 through 6110. The veteran's bilateral sensorineural hearing loss appropriately meets the criteria for a noncompensable schedular rating under Code 6100. 38 C.F.R. § 4.85 (1994). For a compensable schedular rating, the criteria for even greater bilateral hearing loss would have to be shown. 38 C.F.R. §§ 4.2, 4.3, 4.6, 4.7, 4.10 (1994). Consideration has also been given to the provisions of 38 C.F.R. § 3.321(b) (1994) regarding the assignment of an extraschedular evaluation. However, in the absence of a showing of an exceptional or unusual disability picture involving the veteran's hearing loss, with such factors as a marked interference with employment or frequent periods of hospitalization, an extraschedular evaluation of increased disability is likewise not for assignment. II. Service Connection Factual Background The record shows that while on active duty in May 1965, the veteran was walking down a street in Meridian, Mississippi, when two automobiles collided, one of which also hit the veteran. He was taken by ambulance to a civilian hospital where he was initially treated and he was then transferred to a military facility. As a result of the accident, he sustained lacerations of both arms and general contusions of his body. He sustained a five inch laceration of the volar aspect of the right forearm and an eight inch laceration of the left arm above the elbow. Both lacerations were sutured, with a Penrose drain placed in the wound of the left arm. By early June 1965, the drain and sutures had been removed and he was discharged to full duty. In July 1967, the veteran was seen for complaints of his left elbow "locking." On examination, the elbow had full range of motion with no limitation of pronation or supination. There was good muscle strength. An X-ray taken of the left elbow revealed an exostosis of the lateral epicondyle. The recommendation was made not to perform surgery at that time but, if the condition continued to be symptomatic, surgery might be considered at a later date. The veteran's reenlistment physical examination report shows that his head and neck were normal. His upper extremities had normal strength and range of motion. In October 1970, the veteran was evaluated for surgery on the left elbow because of continuing complaints of "locking." Physical examination found that he had full range of motion of the left elbow. There was a non-tender, palpable exostosis present. Surgery was not recommended because the physician found that the symptoms were mild and infrequent, secondary stiffness at the elbow following surgery was a real possibility, and the exostosis was not mechanically causing the locking. The examiner noted that the locking was probably secondary to temporary muscle spasms. At separation from service in February 1971, the veteran's separation physical examination found that his head and neck were normal. His upper extremities had normal strength and range of motion. His spine was normal. A four inch scar was noted on the lateral aspect of the left elbow. The service medical records do not reflect any complaints symptomatology or treatment, either prior to or subsequent to the May 1965 accident, for head, neck, shoulder, back, wrist or hand conditions. The veteran's post-service medical records show that the veteran underwent VA examination for evaluation purposes in November 1971. At the time, he complained of left elbow pain, cramping, and a bony prominence underneath the scar. Examination found a 3 x 1/2 inch scar on the left elbow that was non-adherent and non- tender. There was a 1/2 inch exostosis which was moderately tender. Otherwise, there was no deformity, no abnormal mobility or restriction of the left elbow. Pronation, supination, extension and flexion were all within normal limits. There was no deformity of any other upper extremity and he had no restriction of motion. He was able to close grip both of his hands normally. His thumb was able to touch all fingers, bilaterally. His cervical and dorsolumbar spines were unrestricted in all directions. An X-ray of the left elbow revealed an old healed fracture in the supracondylar area. Neurologically, his coordination was normal. In a letter dated in April 1986, the veteran's treating physician related that he had recently examined the veteran for complaints of numbness in his hands, bilaterally, which the veteran claimed was worse in cold weather. He also had complaints of dropping things with his left hand and problems holding his small child with his left arm. Upon examination, the physician found an exostosis on the lateral epicondyle of the left upper extremity. Sensation below the elbow and his reflexes, bilaterally, were intact. The physician recommended that the veteran undergo orthopedic, neurologic and rheumatoid examinations. In May 1986, the veteran underwent a VA examination for evaluation purposes. At the time, he complained of left arm weakness and that the fourth and fifth fingers of his left hand were becoming numb more often. Examination found the veteran had 135 pounds of grip in the right hand and 105 pounds in the left hand. He could pronate 80 degrees and supinate 85 degrees. His forearms were equal and symmetrical. His wrists, biceps, and triceps were strong. He had full range of motion at the elbow, 145 degrees to 0 degrees. There were no objective sensory changes and, upon examination, no numbness in the fourth and fifth fingers of the left hand were found. Finger spreading was with normal strength. Medical records from another of the veteran's private treating physicians reflect complaints and treatment for various disorders from early 1981 until early 1988 . The treatment record for April 1986 essentially notes findings pertaining to the veteran's left upper extremity that are similar to the other earlier- mentioned private physician's April 1986 examination results. The VA's orthopedic examination report of September 1991 notes that the veteran was complaining of headaches and numbing fingers. Examination of the left elbow noted a healed, non- tender, 7 cm scar. There was no limitation of motion and no swelling. There was a 3 cm, well-healed scar on the right forearm. There was no evidence of muscle atrophy or limitation of motion of either upper extremity. There was no limitation of motion, no tenderness and no muscle spasm of the cervical spine. An X-ray revealed a normal cervical spine except for minimal narrowing of the C5-6 disc space. The Tinel's sign was negative over both wrists and holding the wrists in extreme flexion caused discomfort in the right wrist. In September 1991, the veteran also underwent VA neurologic examination at which the examiner found that the veteran had only a few degrees of range of motion of his neck. Paraspinal muscle spasms were present in the neck. His arms and hands had well- developed muscles with no atrophy or fasciculations noted. He did have weakness to grip strength in both hands that was symmetrical in nature. There was weakness with abduction and adduction of the fingers in both hands. There was no pain to percussion of the wrists or of either elbow. There was some weakness in flexion in both arms. He had good abduction and adduction at the shoulder, bilaterally and symmetrically. Sensory examination revealed diminished sensation to pin prick from the wrists distally into both hands but vibratory and proprioceptive sensation were present in both hands. There was dermatomal sensory loss in a C6 distribution down the left arm and also in a C6 distribution down the right arm. The diagnoses given were peripheral neuropathy of undetermined origin with Raynaud's phenomenon and suspected herniated nucleus pulposus at the C5-6 interspace with C6 nerve root compression causing stiffness in the neck, loss of sensation in the C6 distribution, and weakness in flexion in both arms. At a personal hearing held at the RO in May 1993, the veteran testified as to his present and past medical condition. He also asserted that his upper extremity problems stemmed from the time of his accident in May 1965 while he was on active duty service. At his hearing, he submitted a photograph of his hands and a letter, dated in May 1993, from his treating chiropractor which, in essence, noted that he was treating the veteran for cervical sprain/strain, cervicobrachial syndrome, and carpal tunnel syndrome. Analysis Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease, resulting in disability, was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. When a chronic disease is shown in service 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 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). Additionally, service connection shall be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). The veteran's medical records from his active duty period of service show treatment for lacerations to his right forearm and left elbow after he was struck by an automobile in May 1965. They do not mention any symptomatology or treatment for complaints of a stiff neck or of conditions pertaining to his back, shoulders, wrists or hands. At separation from service, the veteran's head, neck, upper extremities and spine were all found to be normal with normal strength and range of motion. It is not until many years after the veteran was separated from active duty service that the record shows the presence of peripheral neuropathy of undetermined origin, with Raynaud's phenomenon, as well as a suspected herniated nucleus pulposus at C5-6. The examining neurologist attributed the nerve root compression at C6 as the cause of the veteran's stiffness in the neck, loss of sensation in the upper extremities, and weakness in flexion in both arms. No where in the record is there a medical opinion noting an etiological relationship or nexus between the veteran's claimed disorders of the neck, back, or upper extremities and an incident that occurred while he was on active duty service or to a service connected disability. The only evidence connecting the veteran's complaints pertaining to his neck, back and upper extremities to an incident in service or to the service-connected residuals of his left elbow laceration is the veteran's own testimony. The veteran, as a lay person, cannot offer testimony as evidence pertaining to medical causation or diagnosis. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). ORDER Entitlement to either an increased (compensable) rating for bilateral sensorineural hearing loss or for service connection for disabilities of the neck, back, and upper extremities is denied. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.