Citation Nr: 0007325 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-06 848A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a heart condition. 3. Entitlement to a rating in excess of 10 percent for otitis, externa. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from January 1945 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) from a May 1996 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). In a rating decision dated in May 1946, the regional office (RO) denied entitlement to service connection for heart murmur. The veteran did not submit a timely notice of disagreement and the May 1946 decision became final. 38 U.S.C.A. § 7105(d)(3) (West 1991). The veteran's current claim for service connection for cardiovascular disease is deemed to be a new claim, and will be decided on a de novo basis. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (a claim based on a new diagnosis is a new claim). Consideration of the veteran's claim on a basis different from that of the RO is not considered prejudicial, since the veteran and his representative have made arguments based on the merits of the claim throughout. Further, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has essentially held that it is not prejudicial for the Board to make an initial determination as to the well groundedness of a claim, when the RO considered the claim only on the basis of new and material evidence. Elkins v. West, 12 Vet App 209 (1999); Winters v. West, 12 Vet App 203 (1999). FINDINGS OF FACT 1. There is no competent evidence of a nexus between bilateral hearing loss and any disease or injury in service. 2. There is no competent evidence of a nexus between any currently diagnosed heart condition and any disease or injury in service. 3. The veteran's otitis externa is manifested by objective medical evidence of fluid and flakes without evidence of otomycosis, and by subjective complaints of occasional discharge of the ears with itching. There is no evidence of an unusual or exceptional disability picture. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for a heart condition is not well grounded. 38 U.S.C.A. § 5107. 3. The criteria for a rating in excess of 10 percent of otitis externa have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87a, Diagnostic Code 6210 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hearing Loss The veteran's service records are negative for complaints, treatment or diagnosis of hearing loss. On his separation examination dated in May 1946, the veteran's hearing was shown to be 15/15 whispered voice, bilaterally and 15/15 spoken voice, bilaterally. There was no disease or defect noted. During a VA examination in July 1949, it was noted that the hearing was 20/20 whispered voice, bilaterally. VA audiometric examinations dated in October 1993 and May 1997 show bilateral sensorineural hearing loss as defined in 38 C.F.R. § 3.385 (1999). Pertinent Law and Regulations The threshold question that must be resolved with regard to the veteran's claim of service connection is whether the veteran has presented evidence that the claims are well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning it appears to be meritorious. Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for the Federal Circuit has held that: A well grounded claim is a plausible claim, one that appears to be meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Under applicable laws and regulations, service connection requires evidence that the disease or disorder was incurred in or aggravated by service or that the disorders are otherwise attributable to service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999). Service connection may also be granted for disease that is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. Cosman v. Principi, 3 Vet. App. 303, 305 (1992); 38 C.F.R. § 3.303(d). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) 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 v. Gober, 10 Vet. App. 488, 498 (1997). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); see Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995), for the proposition that lay evidence linking a fall to a service-connected weakened leg sufficed on that point as long as there was "medical evidence connecting a currently diagnosed back disability to the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one condition was caused by a service-connected condition was insufficient to well ground a claim). Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Hensley v. Brown, 5 Vet. App. 155, 160 (1993), the United States Court of Appeals for Veterans Claims (Court) held that regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. In the case of a veteran serving for ninety days or more during a period of war or on active duty subsequent to December 31, 1946, a chronic disease becoming manifest to a degree of 10 percent or more within one year from the date of separation from such service will be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Sensorineural hearing loss, as an organic disease of the nervous system, is considered a chronic disease. 38 C.F.R. § 3.309(a). Analysis The veteran asserts that he has bilateral hearing loss as the result of noise exposure during active duty. He is competent to report such an incident. Falzone v. Brown, 8 Vet. App. 398 (1995). There is also competent evidence of current hearing loss for VA purposes in the form of the reports of audiometry testing at VA and service department facilities. The Board notes that there is no competent evidence of hearing loss during service or within one year of the veteran's separation from service. The veteran's main contention is that he has developed hearing loss secondary to the service connected otitis externa. While there is competent evidence of current hearing loss as defined by VA, there is no competent evidence linking that hearing loss to the otitis externa or any other disease or injury in service. In the absence of competent evidence of such a nexus, the claim is not well grounded. As no competent medical evidence has been submitted relating the veteran's current hearing loss to his period of service, there is no competent evidence of a nexus between the current hearing loss and service. In the absence of such evidence, the claim for service-connection is not well grounded, and service connection must be denied. Because the veteran's claim for service connection is not well grounded, VA is under no duty to further assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). Under the provisions of 38 U.S.C.A. § 5103(a) (West 1991), if a claimant's application for benefits is incomplete, VA shall notify the claimant of the evidence necessary to complete the application. The Court has interpreted this statute as imposing an obligation on VA, depending on the facts of the case, to inform claimants of the evidence needed to render their claims well grounded. Robinette v. Brown, supra. The Court has held that the obligation under § 5103(a), exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the veteran has not reported such evidence. VA has accordingly complied with its duty under § 5103. Cardiovascular disease The veteran's January 1945 examination for entrance into service shows systolic murmur, functional, not disqualifying. In May 1945, the veteran was seen with complaint of heart murmur. On examination, there was slight murmur following nine to ten seconds of exercise, this disappeared however, after five minutes of rest. The veteran's May 1946 separation examination a normal cardiovascular system. Additionally noted were the conditions of arteries, character of pulse, and heart, which were all normal. VA examination dated in July 1949 showed that the veteran had a normal cardiovascular system. Medical records dated from July 1963 to April 1964 show that the veteran was seen for paroxysmal tachycardia, auricular and duodenal ulcer. Medical records dated in September 1970 show that the veteran was seen for recurrent spells of palpitation and dizziness. The diagnoses included recurrent episodic tachycardia due to uncertain causes, hypertension, possibly hypertensive vascular disease only, stuffy nose, and possible allergic rhinitis. Medical records dated from November 1980 to October 1994 show no treatment for a cardiovascular disability. Medical records dated from February to March 1991 from Baylor University Medical Center (BUMC) show that the veteran was diagnosed with bilateral carotid artery stenosis and subsequently underwent left carotid endarterectomy. In March, the veteran underwent right carotid endarterectomy with intraluminal shunt, dacron patch angioplasty, resection of redundant internal carotid artery with end to end anastomosis and subsequent dacron patch angioplasty. The veteran's medical history was significant for hypertension. A review of his systems was otherwise negative for cardiac disease. Medical records dated in April 1994 from BUMC show that the veteran was diagnosed with angina pectoris and underwent left internal mammary artery to the left anterior descending and a saphenous vein to the obtuse marginal. Medical records dated from July 1994 to May 1995 show that veteran was seen for arteriosclerotic heart disease and hernia problems. A carotid scan taken in August 1994 at Texas Vascular Center showed the right and left carotid arteries with no significant stenosis or ulceration identified post endarterectomy. Mild diffuse intimal hyperplastic changes and normal anterograde vertebral artery flow, bilaterally was reported. Medical records dated in July 1995 from BUMC show that the veteran was admitted for ventral hernia repair. The veteran was also diagnosed with chronic lung disease in July 1995. In a lay statement dated in December 1996, the veteran's aunt reported that during the veteran's period of service he was hospitalized. She could not recall the particulars but reported that his hospitalization had something to do with his heart. She reported that she was aware of his difficulties during the past few years. The veteran was accorded a VA disease of the heart examination in May 1997. At that time he reported he reported that on induction, he was told that he had a rapid heart rate. He was also told he had a heart murmur. He reported several episodes of tachycardia with dyspnea. He developed hypertension in 1968. In 1994, he developed angina and shortness of breath when he was diagnosed with arteriosclerotic heart disease. The examiner noted that he had some suggestion of mild intermittent claudication due to arterial insufficiency in his lower extremities. He opined that on admission to service, the veteran did not have a significant cardiac disease and he only developed arterial sclerotic heart disease many years afterwards and it was not related to his service time. On examination, the veteran's blood pressure was described as controlled at 140/88. There were no cardiac murmurs. The heart was not enlarged. There was evidence of faint bruits over the carotid arteries. The lower extremities revealed decreased arterial pulses in his feet. It was noted that there might be a little more arthrosclerosis in his vessels and legs. The impressions were coronary heart disease with angina, status post coronary bypass surgery with some mild angina not related to service; history of hear murmur and rapid heart beat at the time of induction, not considered to have cardiac disease, albeit occasional episode of rapid heart rate not related to service; carotid artery arthrosclerosis and status post bilateral endarteriectomies due to hardening of the arteries, not related to service, and no cardiac murmurs currently and not mentioned in any records of hospitalization or cardiac evaluations. Analysis In this case the veteran contends that he has developed current heart disease as the result of aggravation of a pre-existing murmur during service. The record does show a heart murmur discovered on entrance into service. The Board need not reach the questions of whether the heart murmur pre-existed service or was aggravated in service, because there is no evidence of a nexus between any currently diagnosed heart condition and the in service heart murmur. The currently diagnosed heart conditions, to include hypertension, constitute chronic diseases. 38 C.F.R. § 3.309(a) (1999). However, the currently diagnosed heart diseases were not identified during service, thus competent evidence would still be necessary to link the current heart condition to service. Savage, 38 C.F.R. § 3.303(b). In fact, a VA examiner opined that on admission to service, the veteran did not have a significant cardiac disease, that he only developed arterial sclerotic heart disease many years afterwards and that the heart disease was not related to his service time. No medical professional has linked any current cardiovascular disease to service. The veteran has suggested the existence of such a link. However, as a lay person, he is not competent to provide an opinion as to what is essentially a question of medical causation. Grottveit. It might be argued that the record, and the veteran's contentions provide competent evidence of a continuity of symptomatology. However, competent evidence would still be necessary to link that continuity of symptomatology to a specific current cardiovascular disease. Clyburn v. West, 12 Vet. App. 296 (1999). In the absence of competent evidence of a nexus between a current disability and service, the claim is not well grounded and must be denied. Otitis, Externa Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). An evaluation of ten percent is assigned whenever there is evidence of swelling, dry and scaly or serous discharge, and itching, requiring frequent and prolonged treatment. 38 C.F.R. § 4.87a, Diagnostic Code 6210. This is the maximum rating that may be assigned under this diagnostic code. The veteran was granted service connection for otitis externa on the basis of service department reports of treatment for fungus infection, ear canals and VA examination reports confirming the presence of otitis externa, right chronic. In May 1997, the veteran reported to a VA examiner that he experienced occasional discharge from the ear with itching. He reported that he used various ear medications. On examination, there was evidence of fluid and flakes but no evidence of otomycosis. The veteran is currently assigned a 10 percent disability rating for otitis externa, which is evaluated pursuant 38 C.F.R. § 4.87a, Diagnostic Code 6210. Under the applicable schedular criteria, a 10 percent rating is assigned whenever otitis externa is manifested by evidence of swelling, dry and scaly or serous discharge, and itching, requiring frequent and prolonged treatment. In exceptional cases where the schedular evaluation is found to be inadequate, pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service may approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that 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. In Floyd v. Brown, 9 Vet. App. 88, 95 (1996), where the Board had purported to grant an extra-schedular rating, the Court stated that a claim for an extra-schedular rating must be sent by the Board to those "officials who possess the delegated authority to assign such a rating in the first instance," but held that the Board's failure to so refer to such officials constituted harmless error. As Floyd specifically noted, the "regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required." Ibid. Moreover, the Court has not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such a conclusion on its own. Bagwell v. Brown, 9 Vet. App. 337, 338 (1996). The question of an extra-schedular rating is a component of the appellant's claim for an increased rating, Floyd, 9 Vet. App. at 96 In the instant case the RO considered the applicability of § 3.321 in the June 1999 supplemental statement of the case. Accordingly consideration of this question by the Board does not prejudice the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has not asserted that his disability warrants an extraschedular evaluation, and the record does not suggest such entitlement. The veteran's disability has not required any, let alone frequent, hospitalizations. He has not reported, nor is there evidence in the record, that the disability has caused marked interference with employment. Accordingly, the Board is unable to find that the disability is so unusual or exceptional that it would be impractical to apply the regular schedular criteria Accordingly, as the veteran has attained the maximum schedular rating available for otitis externa, and there is no evidence or argument that the regular schedular criteria are inadequate, an increased disability rating is denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for a heart condition is denied. Entitlement to a rating in excess of 10 percent for otitis externa is denied. Mark D. Hindin Member, Board of Veterans' Appeals