BVA9507270 DOCKET NO. 93-13 429 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased evaluation for hypertension, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for chronic respiratory disorder, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) evaluation for hemorrhoids. 4. Entitlement to an increased (compensable) evaluation for residuals, fracture, right great toe. 5. Entitlement to an increased (compensable) evaluation for bilateral defective hearing from separation from service until severance of service connection for defective hearing in 1993. 6. Propriety of severance of service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from April 1970 to June 1980, and from September 1981 to July 1991. This appeal is taken from rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, in October 1991 and January 1993. A claim for service connection for stomach problems, right knee and back was received in July 1992. A rating action in October 1992 denied service connection for bilateral knee disability, tinnitus, and pericarditis; and granted service connection for and assigned zero percent ratings for lumbosacral strain with degenerative changes, and peptic ulcer disease with history of reflux esophagitis. On his VA Form 9, the veteran indicated that he was appealing all issues. The Board construes this to be a notice of disagreement with the denial of service connection for stomach problems, right knee disorder and the back He has not been issued a statement of the case on those issues. Those issues are not inextricably intertwined with the other issues on appeal, the Board will not consider them at this time. However, the attention of the RO is drawn thereto for further appropriate development as required. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that he cannot understand how he can have an identified hearing loss in service; and then after service, his hearing has somehow improved; he argues that as opposed to prior testing, the test procedures did not take into consideration any high pitched noises. He contends that he should receive greater compensation for his service-connected disabilities than currently assigned. However, he has not provided specific arguments in that regard. 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 his claim for entitlement to increased evaluations for service-connected hypertension, chronic respiratory disorder, residuals, fractured right great toe and hemorrhoids; and that the evidence is against an increased evaluation for bilateral defective hearing from separation from service until the recent severance action. However, severance of service connection for bilateral defective hearing was not warranted, and the veteran's claim in that regard is granted. FINDINGS OF FACT 1. Adequate evidence for an equitable disposition of the issues on appeal is in the file. 2. The veteran takes medication for his hypertension; since commencing medication, diastolic blood pressure readings have been consistently sustained at no more than 100. 3. The veteran has current evidence of wheezing but no rales; he has a morning cough, can walk any distance but must slowly walk flights of stairs; pulmonary function studies showing a mild obstructive pattern. He has no more than moderate symptoms at present. 4. Recent outpatient records and VA examination show no signs of external or internal hemorrhoids; overall hemorrhoid problems are no more than mild or moderate. 5. The veteran demonstrates no current functional residuals of a right great toe fracture; there is no current limitation of motion, tenderness or other symptoms. 6. The veteran's hearing is presently at numeric designation of impaired efficiency of level I in each ear. 7. The veteran had normal hearing at entrance into service; audiometric studies towards the end of service including at separation showed a bilateral hearing loss which must be attributed to service. 8. The veteran's current symptoms of hypertension, chronic respiratory disorder, hemorrhoids, defective hearing and residuals of fracture, right great toe, do not more nearly approximate the criteria required for higher evaluations. 9. The veteran has not submitted evidence tending to show that his disabilities involving hypertension, chronic respiratory disorder, hemorrhoids, defective hearing or residuals of fracture, right great toe, are unusual with related factors such as requiring frequent periods of hospitalizations or causing frequent time away from employment other than contemplated under schedular criteria. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for hypertension in excess of 10 percent disabling are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.104, Diagnostic Code 7101 and Note 2 (1994). 2. The criteria for an increased evaluation for chronic respiratory disorder in excess of 10 percent disabling are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.97, Diagnostic Code 6600 (1994). 3. The criteria for an increased (compensable) evaluation for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, Diagnostic Code 7336 (1994). 4. The criteria for an increased (compensable) evaluation for residuals, fracture, right great toe, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.20, 4.31, 4.71a, Diagnostic Code 5284 (1994). 5. The criteria for an increased (compensable) evaluation for bilateral defective hearing from separation from service until severance of service connection for defective hearing in 1993 are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.85, 4.87, Diagnostic Code 6100 (1994). 6. The grant of service connection for bilateral defective hearing as having been incurred in active service was not clearly and unmistakably erroneous; severance of service connection was not warranted, and the benefit is restored. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.105, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is satisfied that sufficient evidence is in the file for an equitable disposition of the issues on appeal, and that the VA's obligation to assist the veteran in the development of his claim in that regard has been met. 38 U.S.C.A. § 5107. Increased Evaluations In general, a veteran's allegation of increased disability establishes a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 269 (1992). The Board finds that the facts relevant to the issues on appeal have been properly developed and, accordingly, the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied in accordance with 38 U.S.C.A. § 5107(a). In assessing the veteran's service-connected disabilities, in general, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The Board has also considered all regulatory provisions which are potentially applicable through the assertions and issues raised in the evidence of record as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). In every instance where the minimum schedular evaluation requires residuals, and the schedule does not provide a zero percent rating, a zero percent rating will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are analogous. 38 C.F.R. § 4.20. Hypertension Hypertensive vascular disease (essential arterial hypertension) is rated as 10 percent disabling when diastolic pressure is predominantly 100 or more. When diastolic pressure is predominantly 110 or more with definite symptoms, 20 percent is assignable. When diastolic pressure is predominantly 120 or more and there are moderately severe symptoms, a 40 percent rating is assignable. When diastolic pressure is 130 or more and there are severe symptoms, 60 percent is assignable. When continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be assigned. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101 and Note 2. In the last few years of service, the veteran was found to have elevations in blood pressure. On his retirement examination, blood pressures readings were 176/154 and 190/100. Post-service outpatient treatment visits at a service facility include an undated blood pressure reading of 164/100, and a reading of 176/100 in July 1992. On VA examination in September 1992, the veteran said he had been taking medication for two years. He complained of some shortness of breath and fatigue particularly when walking in the heat. He also complained of chest tightness which was to be followed-up. He was not sure if he has thyroid problems. On examination, blood pressure was 160/100 in each arm, both before and after the examination. Pulse was regular at 88. The diagnosis was mild hypertension, controlled on medication. Recent VA and service department clinical records show that with the use of medication, there has been an absence of sustained clinical findings of diastolic pressure in excess of 100 or any other symptoms. Accordingly an evaluation in excess of 10 percent is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101 and Note 2. Chronic Respiratory Disorder In general, when evaluating respiratory conditions, ratings under 38 C.F.R. § 4.97, Diagnostic Codes 6600 to 6818, and 6821, will not be combined. Furthermore, under regulatory guidelines, a single rating will be assigned under the Diagnostic Code which reflects the predominant disability picture with elevation to the next higher evaluation when the severity of the overall disability warrants such elevation. Chronic bronchitis is rated a zero percent when mild, demonstrated by slight cough, no dyspnea, few rales; a 10 percent rating is assignable where moderate, with considerable night or morning cough, slight dyspnea on exercise, scattered bilateral rales. A 30 percent rating is assignable when moderately severe, with persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest, beginning chronic airway obstruction. Higher evaluations are assignable when severe or pronounced, as delineated in the regulations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6600. Bronchial asthma is rated as 10 percent rating when mild, with paroxysms of asthmatic type breathing occurring several times a year with no clinical findings between attacks; a 30 percent rating is assignable when moderate, with asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. Higher evaluations are assignable for severe or pronounced involvement. 38 U.S.C.A. § 1155; 38 C.F.R.. § 4.97, Diagnostic Code 6602. Pulmonary emphysema, is rated 10 percent when mild, with evidence of ventilatory impairment on pulmonary function tests and/or definite dyspnea on prolonged exertion. A 30 percent rating is assignable when moderate, with moderate dyspnea occurring after climbing one going up stairs or walking more than one block on level surface, pulmonary function tests consistent with finding of moderate emphysema. Higher evaluations are provided for severe or pronounced involvement. 38 U.S.C.A. § 1155; 38 C.F.R.. 4.97, Diagnostic Code 6603. Service medical records reflect that the veteran was seen on numerous occasions for respiratory complaints. Following service, he was seen at service department outpatient clinics. He complained of bronchial problems; he continued to smoke and was told to quit. During the September 1992 VA examination, the veteran complained of coughing and wheezing on a daily basis, productive in nature and worse at night. He said he could walk "all day" but he could only run 50-75 feet because of shortness of breath, and that he had to climb two flights of stairs slowly. He had had no edema but slept with his head elevated. He said he had never had asthma. It was noted that he had smoked at least one pack of cigarettes a day for 20 years. Examination of the lungs revealed diffuse inspiratory and expiratory wheezing in both lung fields, more noticeable on the left than the right. There were no rales. Pulmonary functions studies showed air flow limitation with mild obstructive pattern on spirometry. The diagnosis was reactive airway disease with COPD as described. Based on the clinical evidence of record, the Board finds that the currently assigned 10 percent rating is appropriate for the service-connected respiratory disorder. Objectively, there is no more than moderate overall impairment, reflected in a productive cough particularly at night, and no impairment in the ability to walk but some limitation on climbing steps other than slowly. The veteran does not demonstrate moderately severe symptoms with persistent cough at intervals throughout the day, considerable expectoration and dyspnea on exercise, or rales throughout the chest. A higher rating is not merited. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.97, Diagnostic Code 6600. Hemorrhoids Hemorrhoids, external or internal, are evaluated as zero percent disabling when mild or moderate; a 10 percent rating is assignable when large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assignable with persistent bleeding and secondary anemia, or with fissures. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7336. Although hemorrhoids were reported in the past, the recent VA examination showed no complaints or clinical findings of either internal or external hemorrhoids. Absent additional clinical findings, including service department medical reports, the Board cannot find more than mild involvement, and a compensable rating is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336. Residuals, Fracture, Right Great Toe Rating the residuals of a great toe fracture is based upon loss of functional impairment. 38 C.F.R. § 4.40 (1994). 38 C.F.R. § 4.20 is for application when no distinct rating exists for a disability. As there is no distinct rating for great toe fractures, it is rated analogous to foot injuries under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Service medical records show that in June 1987, the veteran complained of having injured his toe; X-rays showed that he had fractured his right great toe. Treatment involved binding that toe to another until it healed. There was no further functional impairment noted including at separation from service. Notwithstanding his inservice injury, the veteran has no current complaints nor are there clinical findings referable to any current residual impairment as a result of the inservice right great toe fracture. In the absence of any identifiable functional residuals, a zero percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.31, 4.71a, Code 5284. Bilateral Defective Hearing The basis for evaluating defective hearing is the impairment of auditory acuity within the conversational voice range according to findings reported by audiology clinic examinations as certified. For VA purposes, impairment of auditory acuity contemplates the degree of organic hearing loss for speech. The audiometric tests measuring pure tone thresholds utilize the conversational voice frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.87. The audiometric examinations permit a standardization of methods in uniform conditions, so that the performance of each person can be compared with that of persons having normal hearing acuity. The audiometric findings will provide an accurate basis upon which to evaluate the veteran's entitlement to disability compensation, as provided by the VA Schedule for Rating Disabilities. Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. The nine categories of percent of discrimination based on the controlled speech discrimination test are represented in the horizontal column; these are compared with the nine categories of decibel loss based on the pure tone audiometry in the vertical column. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination with the vertical column appropriate for the pure tone decibel loss; based on the aggregate results at the place where the test results intersect, specific evaluations as assignable from a low of zero percent (level I, for essentially normal hearing acuity) to a high of 100 percent (at level XI, reflecting profound hearing loss). 38 C.F.R. § 4.85 and Tables VI-VII, Diagnostic Codes 6100 to 6110. On VA audiometric examination in 1992, certified pure tone thresholds in the right ear were 10, 20, 10, and 10 in the right ear, for an average of 13 decibels; and 5, 20, 15 and 5 in the left ear, for an average of 11 decibels, at 1,000, 2,000, 3000 and 4,000 Hertz, respectively; speech recognition ability was 100 percent bilaterally. Under schedular criteria, this translates to a numeric designation of impaired efficiency of level I in each ear. An evaluation in excess of zero percent is not warranted for hearing acuity measured at literal designation I, bilaterally. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Diagnostic Code 6100. 38 C.F.R. § 4.7 and Extraschedular Ratings Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating each of the disabilities above, the veteran's current symptoms do not more nearly approximate the criteria for the next highest evaluations, and increased compensation is not warranted. Id. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran has not submitted evidence tending to show that any of his service-connected disabilities is unusual, or that they cause marked interference with work other than as contemplated within the schedular provisions discussed herein, or require frequent periods of hospitalization as to warrant an extraschedular increased evaluation. Id. Severance of Service Connection for a Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. In general, a veteran who served during a period of war or during peacetime after December 31, 1946, is presumed in sound condition except for defectives noted when examined for and accepted into service unless there is clear and unmistakable evidence that the disability manifested in service existed before service. 38 U.S.C.A. §§ 1111, 1137, 1153. In general, once granted, and subject to several regulatory guidelines, service connection will be severed only where evidence establishes that it was clearly and unmistakably erroneous (the burden of proof being on the Government). 38 C.F.R. § 3.105. In this case, the Boards notes that on service entrance examination in July 1969, the veteran's audiometric evaluation showed pure tone thresholds were 20, 15, 20, 35, 35 and 30 in the right ear, and 5, 5, 5, 5, 5, and 10 in the left ear, at 500, 1,000, 2,000, 3,000, 4,000, 6,000 and 8,000 Hertz, respectively. "Hearing loss" was noted, and a profile of "2" for hearing was recorded. On a reenlistment examination in January 1973, audiometric findings showed pure tone thresholds of 10 decibels in both ears at all frequencies from 500 through 4,000 Hertz. In March 1973, the veteran was seen for follow-up of ear pain and possible ear infection; he was still coughing and having ringing in his ears with a sore throat. In September 1976, he complained of a head injury playing football; his ears seemed normal. Audiometric testing on an examination apparently for otherwise undesignated "separation", showed pure tone thresholds at 500 through 4,000 Hertz ranging from 15 to 25 in the right ear, and pure tone thresholds ranging from 0 to 20 in the left ear at those same frequencies. "Hearing loss" was noted. Audiometric evaluations recorded in 1985 and 1986 show pure tone thresholds ranging from 0 to 25 in both ears at all frequencies. An audiometric examination in November 1989 showed pure tone thresholds of 25, 25, 35, 30, and 20, in the left ear; and 25, 20, 35, 20, and 15 in the right ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. On the retirement examination in May 1991, the veteran complained of a hearing loss. Audiometric studies showed pure tone thresholds of 40, 30, 40, 30, and 25 in the right ear, and 30, 20, 35, 25, and 10 in the left ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. The hearing profile of "2" was noted. The Board notes that, for severance of service connection, the burden of proof rests with the Government to demonstrate that the decision granting service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). Thus, mere difference of opinion as to the propriety of the grant of service connection is an insufficient basis for severance. The grant must be shown to have been clearly and unmistakably in error, and this must be affirmatively shown before severance is warranted. It follows that if there was a reasonable basis to support the grant of service connection, then it cannot be shown that such grant was clearly and unmistakably erroneous. The United States Court of Veterans Appeals has defined clear and unmistakable errors as errors that are "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992). Effective December 27, 1994, 38 C.F.R. § 3.385 was revised. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1994). Notwithstanding the notation on the veteran's entrance examination in 1969 of "hearing loss", under the newly revised criteria cited in 38 C.F.R. § 3.385, the audiometric findings identified on the audiometric examination did not show that hearing impairment was then demonstrated. However, utilizing the criteria set forth in § 3.385, the Board finds that there is a reasonable basis for concluding that the veteran demonstrated hearing impairment at the time of his audiometric examination performed for purposes of separation from service. At the time, puretone thresholds in the right ear included two separate readings of "40". The issue is whether the initial grant was clearly and unmistakably erroneous, and in this regard, the burden of proof is on the Government. The Board finds that there was an adequate and justifiable basis for determining that clinical findings on inservice audiometric evaluations constituted responsible objective evidence of hearing loss which could reasonably, in fact, be attributed to service and for which service connection was reasonably warranted. Accordingly, the Government has not met the burden of proof that the grant of service connection was clearly and unmistakably erroneous, and severance of service connection for a hearing loss cannot be sustained. Service connection for bilateral defective hearing is restored. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.105, 3.385. ORDER Severance of service connection for bilateral defective hearing was not warranted; service connection is restored, and to that extent, the appeal is granted. The criteria for increased evaluations for hypertension, bronchitis and chronic obstructive pulmonary disease, hemorrhoids, residuals of fracture, right great toe and bilateral defective hearing, are not met; to that extent, the appeal is denied. RENÉE M. PELLETIER 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.