Citation Nr: 9836190 Decision Date: 12/10/98 Archive Date: 12/15/98 DOCKET NO. 96-35 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation for chronic obstructive pulmonary disease (COPD), currently evaluated as 30 percent disabling. 2. Entitlement to a compensable evaluation for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for photodermatitis/actinic keratosis due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971 and from November 1972 to April 1976. This appeal arose from July 1995 and March 1996 rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefits sought. In July 1996, the veteran testified at a personal hearing; in April 1997, the hearing officer issued a decision which confirmed and continued the denials of the requested benefits. The United Stated Court of Veterans Appeals has held that if a claimant for VA benefits fails to submit a well grounded claim, VA is under no duty to assist the claimant “in developing the facts pertinent to the claim.” 38 U.S.C.A. § 5107(a); see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1996). The veteran’s representative contends that, subsequent to the Court’s decisions pertaining to this issue, the VA expanded its duty to assist the veteran in developing evidence to include the situation in which the veteran has not submitted a well grounded claim. Veterans Benefits Administration Manual M21- 1, Part III, Chapter 1, Para.1.03(a), and Part IV, Chapter 2, Para.2.10(f) (1996). The veteran’s representative further contends that the M21-1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269; see also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet. App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. § 19.9, prior to determining that a claim is not well grounded. The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court’s holdings on the issue of the VA’s duty to assist in connection with the well grounded claim determination are quite clear. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.5. The Board has determined, therefore, that, in the absence of a well grounded claim, the VA has no duty to assist the veteran in developing his case. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Veterans Appeals (Court) has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA’s Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. The laws and regulations used in evaluating respiratory disorders were changed in September 1996. In evaluating the veteran’s service-connected COPD, the Board will rely on the current regulations, as these are more favorable to the veteran. See Fugere v. Derwinski, 1 Vet. App. 103 (1990); aff’d 972 F.2d 331 (Fed. Cir. 1992). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected COPD and bilateral hearing loss disability are more disabling than the current disability evaluations would suggest. He stated that he is unable to walk more than a block without becoming short of breath and is unable to climb a flight of stairs. He also asserted that he had been told that his hearing is worsening. Therefore, he believes that increased evaluations are justified. He has also asserted that service connection should be awarded for tinnitus and photodermatitis/actinic keratosis. He indicated that he developed tinnitus after exposure to loud noise (such as gun fire, artillery and mortar rounds) in service; he also stated that he had been thrown from a jeep in service, injuring his jaw, which resulted in tinnitus. Finally, he indicated that he began to suffer from a skin disorder in service following his exposure to Agent Orange. Therefore, he believes that service connection is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 claims for increased evaluations for COPD and a bilateral hearing loss disability; the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for service connection for tinnitus and photodermatitis/actinic keratosis are well grounded. FINDINGS OF FACT 1. The veteran’s COPD is manifested by the following pulmonary function test results: FEV-1 69 percent of predicted values and FEV-1/FVC 70 percent of predicted values. 2. On VA audiological examination in October 1996, the average pure tone decibel (dB) loss was 63 dB in the right ear and 50 dB in the left ear, with speech discrimination of 80 percent in the right ear and 84 percent in the left ear. 3. The veteran has not been shown by competent medical evidence to suffer from tinnitus or a skin condition which can be related to his period of service, to include exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for COPD have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Code 6604 (1998). 2. The criteria for an increased evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.85, Code 6100 (1998). 3. The veteran has not submitted evidence of well grounded claims for service connection for tinnitus and photodermatitis/actinic keratosis. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased evaluations for COPD and a bilateral hearing loss disability The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1998). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). COPD The veteran was awarded service connection for COPD by a Board decision issued in November 1980. The service medical records included pulmonary function tests (PFTS) conducted in September 1974 that had demonstrated vital capacities 77 percent of predicted value. This finding was indicative of minimal early changes consistent with COPD. VA outpatient treatment records developed between December 1993 and January 1996 noted his complaints of dyspnea on exertion. He also noted some dizziness and wheezing. An August 1994 spirogram indicated mild restriction with dyspnea on exertion at a short distance. An examination of the chest noted fine, few rales at the bases of the lungs. A December 1994 spirometry showed decreased FEV-1 of 66 percent of predicted (2.4). After bronchodilators, FEV-1 rose to 2.46 to 2.85, demonstrating 18 percent improvement. These values were essentially the same in tests conducted in January 1996. PFTS performed in February 1996 revealed the following: FEV- 1 of 2.44 liters, 62 percent improving by 16 percent to 72 percent post-bronchodilators; FVC 3.24, 66 percent of predicted, improving 17 percent to 78 percent post- bronchodilators. The impression was significant obstructive lung disease, hyperinflation and air trapping. He was noted to improve markedly on bronchodilators. The veteran testified at a personal hearing in July 1996. He stated that he was unable to walk a block without being out of wind; he also reported being unable to climb a flight of stairs. He indicated that he was being seen at VA for treatment two to three times per month, and that he had been given various sprays to help his breathing. The veteran was examined by VA in October 1996. He complained that he was short of breath on exertion, as well as occasionally at rest. He indicated that he experienced easy fatigability and an aching pain in the upper anterior chest region. The objective examination found that his lung fields displayed normal resonance to percussion. His breath sounds were slightly decreased and there were no rales. The diagnosis was mild restrictive and obstructive ventilatory impairment. PFTS were performed that same month. FEV-1 was 49 percent and FEV-1/FVC was 85 percent, without medication. The impression was mild obstructive ventilatory impairment; cannot rule out restrictive component. Full PFTS were recommended. In February 1997, another PFT was conducted. FEV-1 of 61 percent pre-medication was noted; this improved to 69 percent with medication. FEV-1/FVC of 70 percent pre- medication was noted; this improved to 74 percent with medication. The impression was mild obstructive ventilatory impairment without significant improvement post- bronchodilators and mild reduction in FVC—cannot rule out restriction versus air trapping. According to the applicable criteria, a 30 percent disability evaluation is warranted for FEV-1 of 56- to70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56-to 65-percent predicted. A 60 percent disability evaluation requires FEV-1 of 40- to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. Part 4, Code 6604 (1998). After a careful review of the evidence of record, it is found that an increased evaluation for the veteran’s service- connected COPD is not warranted. The VA examination did not demonstrate FEV-1 of 40- to 55 percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Rather, this examination showed FEV-1 of 69 percent and FEV-1/FVC of 74 percent, which is a degree of disability contemplated by the 30 percent disability evaluation currently assigned. However, his pulmonary function tests results do not demonstrate entitlement to a 60 percent disability evaluation at this time. In conclusion, it is found that the preponderance of the evidence is against the veteran’s claim for an increased evaluation for the service-connected COPD. Bilateral hearing loss disability According to VA’s Schedule for Rating Disabilities, evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity. Hearing loss is 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 of 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, Part 4, Codes 6100-6110 (1998). To evaluate the degree of disability from the service-connected bilateral defective hearing, the rating schedule provides 11 numeric designations from Level I for essentially normal acuity through XI for profound deafness. The veteran testified at a personal hearing in July 1996. He stated that he had been given hearing aids in 1995 and that he had been told that his hearing was getting worse. VA examined the veteran in October 1996. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 75 100 LEFT 30 30 30 60 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. The average pure tone decibel loss in the right ear was 63 percent dB and 50 dB in the left ear. According to Table VI of 38 C.F.R. § 4.85, the numeric designation of hearing impairment in the right ear is Level IV and Level II in the left ear. Table VII of 38 C.F.R. § 4.85 reveals that these levels of hearing impairment warrant the assignment of a 0 percent disability evaluation. It is noted that the Board is constrained by a mechanical application of the facts in this case to the applicable laws and regulations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Therefore, it is concluded that the preponderance of the evidence is against the veteran’s claim for an increased evaluation for bilateral hearing loss. II. Service connection for tinnitus and photodermatitis/actinic keratosis The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible. If he has not presented well grounded claims, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claims are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). For the showing of a 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service 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. 38 C.F.R. 3.303(b) (1998). According to 38 C.F.R. § 3.307(a)(6) (1998), the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at 38 C.F.R. § 3.309(e) (1998) shall be service-connected if they manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval or air service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following disease shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease: chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; Non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term soft-tissue sarcoma includes the following: adult fibrosarcoma; dermatofibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of the tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epitheloid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of the tendons and aponeuroses; extraskeletal Ewing’s sarcoma; congenital and infantile fibrosarcoma; and malignant ganglioneuroma. 38 C.F.R. § 3.309(e) (1998). The new regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1998). The veteran’s active duty included service in Vietnam during the Vietnam era. Consequently, it is presumed that he was exposed to Agent Orange or other herbicide agents while in Vietnam. Tinnitus The veteran’s service medical records make no reference to any complaints of or treatment for tinnitus while on active duty. Audiograms conducted in May and July 1974, while noting a bilateral hearing loss, made no mention of tinnitus. The April 1976 separation examination also made no mention of this disorder. Following service, the veteran was examined by VA in July 1971. He proffered no complaints of tinnitus. The examination was within normal limits and made no reference to tinnitus. VA examined the veteran in March 1995. He reported that he suffered from a constant high-pitched ringing in the ears which interfered with his ability to hear. He related this disorder to exposure to loud noise in service. The veteran testified at a personal hearing in July 1996. He indicated that he had been around a lot of artillery and machine gun fire in the service. He also said that he had exposed to mortar fire and had been thrown from a jeep, injuring his jaw. At the time that he was thrown from the jeep, he also reportedly suffered a shrapnel fragment wound to the side of the head. He indicated that he had suffered from tinnitus ever since. The veteran was examined by VA in October 1996. He stated that his tinnitus had started in 1969. He reported bilateral, constant high-pitched ringing in the ears, which he said was very irritating. Initially, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the instant case, the veteran has presented evidence that he suffers from a current disability, namely tinnitus. However, he failed to establish the existence of this disorder in service. Moreover, he has failed to present any objective evidence that would tend to suggest a link between his currently diagnosed tinnitus and his periods of service. While he has rendered his own opinion that such a link exists, he is not competent, as a layperson, to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, it is concluded that the veteran has failed to present evidence of a well grounded claim for service connection for tinnitus. Photodermatitis/actinic keratosis The veteran’s service medical records included a November 1969 notation that he was seen for an area of pruritic dried skin on his lower lip. The impression was that this looked like secondary infected simplex. An Occupational Physical conducted in September 1974 noted that he handled solvents and adhesives. However, his skin was normal and he denied experiencing any persistent skin problems. The April 1976 separation examination noted no history of a skin condition. The veteran was examined by VA in July 1971. He offered no complaints concerning his skin. The objective examination found that his skin was within normal limits. The veteran was examined in May 1995. He was found to have chronic actinic changes and photodermatitis. This was noted to cover approximately 20 percent of his body. He also reported a history of occasional blisters over the arms and other areas. The examiner commented that actinic damage has been associated with Agent Orange exposure. The veteran testified at a personal hearing in July 1996. He stated that he was treated for skin complaints during either his second or third month in Vietnam. He also indicated that he had had a burning sensation around his ears. He said that medics had told him that this was due to Agent Orange or some type of chemical. He said that he was treated “a bunch of times” for this condition in service. As previously noted, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995). According to Savage v. Gober, 10 Vet. App. 498 (1997), the Court has stated that 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, supra, at 498. In the instant case, it has been conceded that the veteran was likely exposed to Agent Orange or other herbicides, since he served in Vietnam during the Vietnam era. However, such exposure would not be enough to establish service connection for a skin disorder. The veteran has been diagnosed with photodermatitis/actinic keratosis. There is no medical evidence that this disorder represents chloracne or an acneform disease consistent with chloracne. The veteran has never been diagnosed with any of the diseases enumerated in 38 C.F.R. § 3.309(e) (1998), which are the only diseases for which a presumption of service connection is warranted. Because the veteran does not have the required medical expertise to make medical determinations, he is not qualified to diagnose a skin disorder or to ascertain the etiology of a disability. See Espiritu, supra. While the examiner stated in May 1995 that actinic damage has been associated with Agent Orange exposure, no objective basis for this opinion was offered (such as citation to medical treatises), nor did this opinion relate this veteran’s skin problems to his exposure to Agent Orange. Therefore, the veteran has failed to present evidence of entitlement to service connection for a skin disorder secondary to Agent Orange, on either a presumptive or direct basis (see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), which did not preclude a veteran from establishing service connection with proof of actual direct causation). The veteran has also failed to present evidence of a well grounded claim of entitlement to service connection for chronic photodermatitis/actinic keratosis. Initially, it is noted that, while an area of pruritic dried skin was noted on the lower lip in November 1969, there is no indication that this constituted the development of a chronic skin condition. No mention was made of any skin complaints during the reminder of his first period of service, and his skin was completely normal during his entire second period of service. When this is coupled with the silence of the records concerning a skin disorder until photodermatitis/actinic keratosis was noted in May 1995, it cannot be argued that the one complaint in service constituted the onset of a chronic disorder. Rather, this appeared to be an acute episode, which resolved without residual disability. Despite the fact that the veteran has not established chronicity, his claim could 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 supra. However, in this case, there is only evidence of one complaint of dry skin on the lower lip in service, with no evidence of continuity of symptomatology thereafter. Moreover, the currently diagnosed photodermatitis/actinic keratosis has not been objectively related to the one episode of lower lip dry skin noted in service. Therefore, it is found that the veteran’s claim for service connection for photodermatitis/actinic keratosis is not well grounded. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform that appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 , 465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995); cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). It is also found that there is no prejudice to the veteran in denying this claim as not well grounded, even though the RO decision was on the merits. Edenfield v. Brown, 8 Vet. App. 384 (1995). (CONTINUED ON NEXT PAGE) ORDER An increased evaluation for the service-connected COPD is denied. An increased evaluation for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for photodermatitis/actinic keratosis is denied. C. P. RUSSELL Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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. - 2 -