Citation Nr: 0003641 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-09 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for aphakia, right eye, status post cataract removal, claimed as an eye condition. 2. Entitlement to service connection for sinusitis with headaches. 3. Entitlement to service connection for chronic bronchitis. 4. Entitlement to service connection for residuals of hemorrhage of the right tonsil, claimed as a throat condition. 5. Entitlement to service connection for hiatal hernia, ulcer, and reflux disease, claimed as stomach problems. 6. Entitlement to service connection for dysthymic disorder and/or anxiety disorder, claimed as a nervous condition. 7. Entitlement to the assignment of a higher disability evaluation for tinnitus, currently evaluated as 10 percent disabling. 8. Entitlement to the assignment of a higher (compensable) disability evaluation for hearing loss, left ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to February 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The claims file does not include medical evidence of a nexus between aphakia, right eye, status post cataract removal, claimed as an eye condition, and the veteran's military service. 2. The claims file does not include medical evidence of a nexus between sinusitis with headaches and the veteran's military service. 3. The claims file does not include medical evidence of a nexus between chronic bronchitis and the veteran's military service. 4. The claims file does not include a current medical diagnosis of any residuals of hemorrhage of the right tonsil, claimed as a throat condition. 5. The claims file does not include medical evidence of a nexus between hiatal hernia, ulcer, and reflux disease, claimed as stomach problems, and the veteran's military service. 6. The claims file does not include medical evidence of a nexus between dysthymic disorder, anxiety disorder, claimed as a nervous condition, and the veteran's military service. 7. Service connection for hearing loss is established for the left ear only, and the medical evidence demonstrates that the appellant currently approximates Level I hearing impairment in his left ear. 8. Current manifestations of the appellant's tinnitus include constant ringing. The disability picture is not exceptional or unusual. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for aphakia, right eye, status post cataract removal, claimed as an eye condition, sinusitis with headaches, chronic bronchitis, for residuals of hemorrhage of the right tonsil, claimed as a throat condition, hiatal hernia, ulcer, and reflux disease, claimed as stomach problems, dysthymic disorder, anxiety disorder, claimed as a nervous condition are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a compensable evaluation for hearing loss, left ear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 6100 (1999). 3. Current manifestations of the appellant's service- connected tinnitus, are no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.87 Diagnostic Code 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims for Service Connection 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; 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic disease processes, such as a psychosis, when such are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold question which must be answered as to these issues is whether the veteran has presented well grounded claims for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires (1) a medical diagnosis 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 (Fed. Cir. 1997). Alternatively, the U.S. Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. The Board observes that several lay statements have been submitted, one from the veteran's mother and another from his brother, which along with his own statements, maintain that the veteran suffered from the claimed conditions since service. The Board notes that generally lay statements are competent evidence as to symptoms the persons observed, However, opinions as to medical matters such as diagnoses or etiology of illnesses are without probative value because lay persons are not competent to draw conclusions on matters requiring medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. Eye condition The veteran was seen for complaints of blurred vision in service in June 1966. Visual acuity was 20/20. However, iridodialysis, a separation or loosening of the iris from the root at the ciliary body, was found in the right eye. The veteran gave a history of trauma to the right eye before service, and he was given glasses. He also had a piece of metal removed from his left eye in June 1967. He returned to the clinic that same day complaining of pain and a scratch in the eye. An abrasion to the cornea and some rust pigment, presumably from the removed particle, were identified. Treatment consisted of sulfa drugs, antibiotics and an eye patch. There were no other complaints in service. Eye examination on discharge in January 1970 was reported as normal except for a peripheral defect of the right uvea (pupil) 10 o'clock to 1 o'clock, secondary to old injury, age 8 years. At his eye examination in January 1998, some 28 years after release from military service, the veteran reported trauma to the right eye by a stone at age 15 and additionally by a nail when he was age 32 ( he was born in 1947). The second injury caused a cataract formation followed by extraction. The veteran reported no ocular complaints. Eye surgical history was significant for cataract extraction without intraocular lens placement. Diagnosis was status post trauma of the right eye with rock and nail causing cataract formation. That diagnosis also reported status-post cataract extraction in the right eye, that eye being aphakic and myopia Whatever eye problem the veteran had in service, the Board notes that the January 1998 eye examination attributed the current eye pathology to incidents unrelated to service. There is no medical evidence in the record linking any current eye pathology or disorder to symptomatology or problems in service. Accordingly, without a nexus of current eye pathology to service, the claim is not well grounded and must be denied. Sinusitis with headaches The veteran's service records reflect that the veteran received treatment on several occasions for colds and/or the flu over his nearly 4 year period of military service. A chronic sinus condition or chronic headache condition was not diagnosed in service, however. Service medical examination on discharge was silent as to the claimed disorder. Treatment records for the period from 1988 to February 1991 do not provide a diagnosis of chronic sinusitis. Likewise, treatment records from May 1994 do not provide an impression or assessment that the veteran suffered from the claimed condition. At a VA general medical examination in January 1998, the veteran reported a history of headaches, described as throbbing, on the left side of the head. He felt stuffiness in his nose. Sinusitis was diagnosed. However, the examiner did not relate the condition to the veteran's service. The veteran has not submitted any medical evidence linking his currently diagnosed sinusitis to symptoms he had in service. Accordingly, without a cognizable nexus of current sinus pathology to service, the claim is not well grounded and must be denied. Chronic bronchitis The veteran advances this claim as associated with his having been exposed to asbestos in service. Treatment records for the period from 1988 to February 1991 do not provide a diagnosis of chronic bronchitis. Likewise, treatment records from May 1994 do not provide an impression or assessment that the veteran suffered from the claimed condition. The January 1998 VA general medical examination diagnosed the veteran with chronic bronchitis and specifically noted the veteran's 20-25 year pack history of cigarette smoking. The veteran's weight was reported as 232 pounds (at the time of his military separation the veteran was 73 inches tall and with a weight of 170 pounds). He currently had a daily cough, not always productive. He reported dyspnea on exertion. The examiner also noted that in light of normal pulmonary function tests, it was unlikely that asbestos exposure contributed to his current symptomatology. The veteran has not submitted any medical evidence that ties current bronchial pathology to service. Accordingly, without a nexus of current chronic bronchitis to service, the claim is not well grounded and must be denied. Hemorrhage right tonsil While in service in September 1968, the veteran experienced a painful sore throat. At one point, his symptomatology was thought attributable to wisdom teeth; at another point, it was thought to be related to acute tonsillitis. He was admitted for observation because of sudden onset of bleeding from the right tonsil. On admission a one centimeter clot was noted on the right tonsil. Laboratory studies were returned as normal. During the 48 hour observation, no further bleeding was found, and the patient was thereupon discharged as fit for duty. Service medical examination on discharge was silent as to the claimed disorder. On the January 1998 VA general medical examination, there was no diagnosis of any pathology related to tonsils or the throat. No clinical records suggest any sequelae associated with the incident in service. Without a medical diagnosis of current disability, the veteran's claim for hemorrhage of the right tonsil claimed as a throat condition must be deemed not well-grounded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hiatal hernia and other claimed gastrointestinal conditions Service medical records show the veteran was diagnosed with viral gastroenteritis in October 1966. In June 1967, he reported an episode of vomiting. The abdomen was soft and non-tender and there was no organomegaly or masses palpable. In October 1968, the veteran presented with complaints of nausea in conjunction with a head cold with sinus congestion. Service medical examination on discharge was silent as to any gastrointestinal findings or even any claimed gastrointestinal disorder(s). Private medical records from August and September 1988, suggest the veteran with peptic ulcer disease (PUD) and hiatal hernia at that time. Other private medical records note the veteran with gastritis and a history of PUD. Treatment records from March 1989 report a symptomatic chronic hiatal hernia (gas, bloating, belching, etc., particularly when he overate). However, the medical evidence of record does not demonstrate an association between the conditions and the veteran's service. At a VA general medical examination in January 1998, the veteran reported treatment for hiatal hernia and ulcers in 1971, 1977 and 1978, but the veteran has not provided medical records from that period. Moreover, on the abdomen segment of the examination, no abnormal pulsation was noted; bowel sounds were within normal limits, and there was no tenderness to palpation. Medical authority has not suggested any relationship between the claimed condition to the veteran's service. Accordingly, without a nexus of any current gastrointestinal disorder to service, the claim is not well grounded and must be denied. Nervous Condition The veteran was seen on one occasion in service in June 1966 for what was characterized as an anxiety reaction. He was having some vision complaints, and he was very nervous and upset. The examiner noted the veteran's eyes were checked, and his acuity was very good. Librium was prescribed and refilled once. Service medical records are otherwise silent as to complaints, treatment or diagnoses relating to any mental disorder. Private medical records from December 1988 and January 1989, nearly 20 years after service, reflect that the veteran suffered from an anxiety condition. Treatment records from March 1989 suggest that the veteran had chronic trouble with anxiety at that time. In September 1997, the veteran was seen at the VA mental health clinic with complaints of depressed mood and anxiety. Diagnosis was generalized anxiety disorder and depressive disorder not otherwise specified. The veteran was afforded a psychiatric examination in January 1998. While reporting having taken Buspar for 7 years prior to the examination, the veteran denied any previous history of inpatient or outpatient mental evaluations. On review of the veteran's psychiatric symptomatology, he reported periods of depression for years "but not like the last seven years." The examiner diagnosed him with dysthymic disorder and occupational problems. Axis V-Global Assessment of Functioning (GAF) was reported as between 71-80. The examiner, while noting that the claims file was unavailable, found that, above all, it appeared the veteran was working long hours in addition to having a long commute. The examiner concluded the veteran was overworked. While the examiner who performed the January 1998 mental health examination had not reviewed the claim's file, the Board notes that any shortcoming in that regard does not constitute a basis for requiring further development in this instance. Although the "duty to assist" includes the conduct of a through and contemporaneous medical examination that takes into account the records of prior medical treatment, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under section 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. Until such time as a well grounded claim is established, no duty to assist attaches, and, consequently, a related shortcoming is without implication. Moreover, in this case, the examiner actually explored the veteran's military experience, which the veteran reported as "all right, I liked the experience." The only lingering effect of his military service was reported as relating to audiologic pathology. See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998) (nexus aspect addressed where examination report without benefit of review of service records included assessment of, inter alia, "Military Life" because clinician may note past environmental problems contributing to the mental disorder). The important point at this time is there is no medical evidence in the record tending to show that the symptoms in service represented a chronic disability. A nexus or relationship between any mental health disorder and service has not been demonstrated by medical evidence. Accordingly, the claim is not well grounded and must be denied. Summary Although the veteran asserts that he has received treatment for a number of the claimed conditions on a continuous basis since his discharge from service, there are few treatment records submitted except those of contemporary origin. The Board is also aware that the veteran has commented to the effect that some of his former doctors have died; nevertheless, the veteran is invited to attempt to exhaust remaining medical sources to obtain pertinent records in an effort to substantiate his claim or to secure medical opinion(s) associating his claimed disorders to service. The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained which, if true, would make the claims "plausible." See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). The Board views this discussion as sufficient to inform the veteran of the elements and evidence necessary to complete his application for service connection for the claimed disorders. II. Increased Evaluation Claims As a preliminary matter, the Board finds that the appellant's claims of entitlement to an increased evaluation for unilateral hearing loss and for tinnitus are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well-grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly and sufficiently developed with regard to these issues. Disability ratings are rendered upon the VA's Schedule for Rating Disabilities as set forth at 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. The higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exascerbations proportionate" with the severity of the disability. 38 C.F.R. § 4.1. Compensable Rating for Hearing Loss, Left Ear During the pendency of this appeal, VA issued new regulations for evaluating disabilities affecting auditory impairment. 64 Fed. Reg. 25202 (1999). They were effective June 10, 1999. Where laws or regulations change, after a claim has been filed or reopened, and before administrative or judicial process has been concluded, the version most favorable to the veteran applies, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991). While the regulations noted above had been published and became effective during the pendency of this appeal, they were not applied to the present claim. A comparison to the previous version of the regulation does not disclose any pertinent change to the regulation that would affect the outcome of this decision, however. See 38 C.F.R. § 4.85, 4.87, 4.87a (1999). Therefore, the Board concludes that the veteran is not prejudiced by application of the current criteria to his claim since there are no substantive changes in the regulation. Entitlement to service connection (non-compensable) for the veteran's left ear was established by the appealed rating determination. Evaluations of unilateral defective hearing range from noncompensable to 10 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 defective hearing, the rating schedule establishes eleven auditory acuity levels, ranging from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, the hearing acuity of the nonservice-connected ear is looked upon to be normal except in cases of bilateral total deafness. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Codes 6100 to 6101. The veteran was afforded a VA audiological examination conducted in January 1998. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 25 25 20 55 70 The average decibel loss between 1000 and 4000 hertz was 42.5 decibels in the service connected left ear. Speech audiometry testing revealed speech recognition ability of 96 percent in the left ear. Although the veteran suffers from bilateral hearing loss, entitlement to service-connection is for the left ear only. Bilateral total deafness is not shown by objective testing. When the issue involves a claim for an increased rating for a hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. 38 C.F.R. § 4.85, Tables VI and VII. The Board emphasizes that "assignment of disability ratings for hearing impairment are by mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 339 (1992). Considering the foregoing, evaluation of the noted findings in the context of Table VI of 38 C.F.R. § 4.87 indicates that the designation of a level I hearing impairment of the service connected left ear is appropriate. Comparing the veteran's service connected left ear level I hearing impairment against the designated "better" right ear pursuant to Table VII of that same regulatory section reveals that a noncompensable rating is appropriate for the veteran's level of hearing loss in his left ear. In this instance, the preponderance of the evidence is against entitlement to a compensable evaluation for hearing loss. Tinnitus As pertinent to this appeal, tinnitus is rated under Diagnostic Code 6260 of the Rating Schedule, which provides for a 10 percent rating with evidence of persistent tinnitus as a symptom of head injury, concussion or acoustic trauma. 38 C.F.R. § 4.87a, Code 6260. The veteran reports some hearing difficulty in quiet environments and significant difficulty understanding speech in crowds. The examiner who conducted the January 1998 audio examination noted the veteran's military history was positive for acoustical noise exposure. The veteran described his tinnitus as a high pitched ringing sound. No medical follow- up was indicated as necessary. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average impairment in earning capacity due exclusively to the service-connected disability 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 evidence of record before the Board does not reveal that the veteran's service-connected tinnitus causes him unusual or exceptional hardship such as to warrant application of 38 C.F.R. § 3.321(b)(1). He has not, for example, required frequent periods of hospitalization and has not demonstrated a marked loss of employment on account of his tinnitus. According to a psychiatric examination afforded in September 1997, the veteran reported being employed by his brother and previously being self employed. While tinnitus appears to play a role in his overall hearing difficulty, it does not appear that tinnitus alone causes him unusual hardship or frequent treatment to include hospitalization as to warrant a higher rating on an extraschedular basis. The Board stresses that the preponderance of the evidence is against the veteran's increased rating claim, and it presents no question as to which of two evaluations should be applied. Thus, the provisions of 38 C.F.R. § 4.7 are inapplicable. ORDER Entitlement to service connection for aphakia, right eye, status post cataract removal, claimed as an eye condition, sinusitis with headaches, chronic bronchitis, for residuals of hemorrhage of the right tonsil, claimed as a throat condition, hiatal hernia, ulcer, and reflux disease, claimed as stomach problems, dysthymic disorder, anxiety disorder, claimed as a nervous condition is denied. Entitlement to a compensable evaluation for hearing loss, left ear is denied. Entitlement to increased evaluation for tinnitus is denied. BRUCE KANNEE Member, Board of Veterans' Appeals