Citation NR: 9612322 Decision Date: 05/06/96 Archive Date: 05/16/96 DOCKET NO. 92-21 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the veteran has submitted new and material evidence to reopen a claim for service connection for cardiovascular disabilities including hypertension and residuals of myocardial infarction. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a left shoulder disorder. 4. Entitlement to service connection for anxiety disorder. 5. Entitlement to service connection for disorders of both knees. 6. Entitlement to service connection for sinusitis. 7. Entitlement to an increased (compensable) evaluation for bilateral defective hearing. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran retired in 1976, after approximately 20 years of active service. The issue of whether the veteran has submitted new and material evidence for service connection for hypertension and residuals of a myocardial infarction will be discussed in the remand portion of this decision. It does not appear from the record that the regional office has considered the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the veteran’s claim for an increased evaluation for his service-connected hearing loss. Under Fisher v. Principi, 4 Vet.App. 57, 60 (1993), the question of extraschedular rating is a separate issue from the issue of the appropriate schedular rating. Further, under Floyd v. Brown, No. 92-970 (U.S. Vet.App. April 17, 1996), although the Board may be obliged to raise the issue of potential extraschedular consideration, based upon a liberal reading of the documents and oral testimony of record, the Board cannot make that determination in the first instance. Accordingly, the question of potential extraschedular consideration for the service-connected hearing loss is referred to the regional office for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran attributes the low back, knees and shoulder disorders to injuries received in service and states that anxiety and sinusitis had their inception in service. He asserts that his defective hearing is sufficiently disabling to warrant a compensable evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 veteran has not submitted well-grounded claims for service connection for a disorder of either knee, a low back and a left shoulder disorder, an anxiety disorder and sinusitis, and the preponderance of the evidence is against his claim for a compensable evaluation for defective hearing. FINDINGS OF FACT 1. There is no medical evidence relating a current knee or left shoulder disorder to service. 2. There is no medical evidence that the veteran has a current low back disorder or anxiety disorder. 3. There is no medical evidence that the veteran currently has sinusitis. 5. The veteran has level I hearing in the right ear and level V hearing in the left ear. CONCLUSIONS OF LAW 1. The veteran has not submitted well-grounded claims for service connection for a disorder of either knee, a low back and left shoulder disorder, anxiety disorder and sinusitis. 38 U.S.C.A. §§ 5107(a) (West 1991 & Supp. 1995); 38 C.F.R. § 3.303 (1995). 2. The veteran's defective hearing does not warrant a compensable evaluation under the applicable schedular criteria. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991 & Supp. 1995); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The first determination that must be made with regard to a claim is whether it is well grounded. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet.App. at 81. An allegation that a disorder is service connected is not sufficient. The veteran must submit evidence in support of a claim that would “justify a belief by a fair and impartial individual that the claim is plausible.” The quality and quantity of the evidence required to meet the statutory burden will depend upon the issues presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-3 (1993). In general, in order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence, depending on the circumstances); and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). The term "service connection" connotes many factors but basically it means that a disease or injury, resulting in disability, was incurred coincident with service in the Armed Forces or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1995). With chronic disease shown, as such, in service, or within the presumptive period, 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. 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 a condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In January 1963, it was noted that the veteran injured his legs in an auto accident. The diagnosis was contusion; no involvement of the knees was noted. Various examinations during service, including the retirement examination, did not reveal any disorder of either knee. The veteran was seen in February and March 1965 for complaints regarding his back. There were two visits approximately a month apart. The February notation contains "check back" and recommendations of diathermy and an analgesic. The March visit, approximately a month later, shows complaints of sharp pain in the back area of several hours' duration. It was noted an accident report had been made. He was treated with an analgesic and told to return in the morning for sick call. The next day he reported that while doing a fireman's carry he felt a sharp pain in his lower back. The pain was still present and he had difficulty bending over. There was no radiation of the pain down his legs. Examination found tenderness and spasm of the right lumbar paravertebral muscles. The deep tendon reflexes were active and equal and straight leg raising test was negative. The diagnostic impression was muscle strain. The veteran was seen in June 1965 complaining of back pain; he reported that he had injured his back while moving furniture that morning. He was experiencing constant pain in the lower lumbar spine to the abdominal region. The impression was acute back strain; an analgesic was prescribed. The veteran was seen in April 1968 complaining of pain in his back to his chest region of one week's duration. He said that when he turned his head to the left the pain would occur in the left side of his neck and when he raised his left arm, he experienced the same type of pain. He was prescribed Tylenol; no diagnosis was reported. In July 1970, he was seen for complaints of pain in his left shoulder. The range of motion of the shoulder was intact. There was slight tenderness to palpation in the middle island of the upper scapula which could be duplicated by rotation of the head to the right. He was seen in March 1975 complaining of pain in the neck and left arm. It was noted that there had been no recent trauma and there was no swelling or discoloration. The neck and arm had a full range of motion. The veteran was referred for a psychiatric evaluation in 1962. The diagnostic impression was inadequate personality. Various physical examinations throughout service, including a July 1976 retirement examination were not reported to show any abnormality of the knees, left shoulder, low back, sinuses or a psychiatric disorder. During an April 1991 VA examination, the veteran reported that he had been thrown from a Jeep in 1963 sustaining an injury to his left shoulder and knees and that he had had intermittent left shoulder pain and recurrent pain in his knees since that time. He also reported occasional low back pain during service while doing heavy lifting and on occasion would have recurrent, nonradiating, low back pain. It was recorded that he was not on medication for any of his musculoskeletal symptomatology. All peripheral joints appeared normal in size and shape and had a full range of motion. He complained of some rather minimal pain in the left shoulder with full abduction and flexion. In his back, he pointed to the low lumbar area as the location of his back pain. He had a normal spinal curvature, no spinal tenderness, paravertebral muscle spasm or tenderness and a full range of motion of the lumbosacral spine without pain. There was subpatellar crepitus in the knee joints. The pertinent diagnostic impressions were history of old injury left shoulder, intermittently symptomatic and intermittent low back pain by history. X-rays of the lumbosacral spine and left shoulder were reported to show no significant abnormalities. No psychiatric or sinus abnormality was reported. Following an April 1991 VA psychiatric examination, the examiner said that he could not diagnose a psychiatric illness in the veteran. Neither the service medical records nor post-service examinations have shown a sinus disorder. There is evidence that the veteran had intermittent left shoulder pain in service, but there is no medical evidence that it was chronic in service. Also, there is some evidence of current disability of the left shoulder in the form of a complaint of pain on the April 1991 examination, but there is no medical evidence of a nexus between any current left shoulder disorder and service. Similarly, while the 1991 VA examination found crepitus in the knees, there is no medical evidence to relate it to the jeep accident in service, or otherwise to service. Accordingly, the veteran's claims for service connection for left shoulder and knee disorders are not well grounded. The evidence does not show that the veteran currently has a low back disorder, a psychiatric disorder or sinusitis. The 1991 VA examination revealed no low back disorder. In the absence of medical evidence of current disability, a claim for service connection for a disorder is not well grounded. Because the veteran has not submitted well-grounded claims for service connection for a disorder of either knee, a low back and left shoulder disorder, anxiety and sinusitis, service connection for those disorders must be denied. Edenfield v. Brown, 8 Vet.App. 384 (1995). In June 1991, the veteran was notified of the appealed rating decision. In the notification, he was advised that, although a low back disorder, left shoulder injury and anxiety had been treated during service, there was no evidence of a chronic disability attributable to service. He was also advised there was no evidence of sinusitis that was present in service or of treatment within one year after separation from service. In the statement of the case, he was advised that a knee disorder was not shown during service. The Board believes that this notification is sufficient to advise the veteran of the evidence necessary to complete his application for service connection for those disorders as required by 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1995). Robinette v. Brown, 8 Vet.App. 69 (1995). In addition, the circumstances of this case are such that no further action is indicated. Beausoleil v. Brown, 8 Vet.App. 459 (1996). Subsequent to the September 1994 remand, the United States Court of Veterans Appeals (Court) has issued decisions defining the evidence necessary to make a claim well grounded. See e.g. Caluza. The remand discussed the “duty to assist” implying that the claim was well grounded. However, with the additional guidance provided by the later Court decisions, the Board now concludes that the claims for service connection for a disorder of either knee, a low back disorder, left shoulder disorder, anxiety and sinusitis are not well grounded. Disability evaluations are intended to compensate for the average impairment of earning capacity resulting from service-connected disabilities, insofar as can practicably be determined. They are primarily established by comparing objective examination findings with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 C.F.R. § 4.1 (1995) An allegation of increased disability generally establishes a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The veteran has asserted that defective hearing has increased in severity. The VA has had the veteran examined and has obtained treatment records. The VA has fulfilled its duty to assist the veteran in the development of the facts pertinent to his claims for increased evaluations. 38 U.S.C.A. §§ 5107(a). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity. To evaluate the degree of disability from bilateral service-connected defective hearing, the Schedule establishes eleven auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. 38 C.F.R.§ 4.85, Codes 6100-6110. “Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet.App. 345 (1992). Under the “new” criteria for rating defective hearing, which became effective in December 1987, evaluations for defective hearing are based upon the average impairment of auditory acuity within the conversational voice range, from 1,000 to 4,000 Hertz, inclusive, 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 Hertz. 38 C.F.R. § 4.85. Examinations to determine hearing acuity are conducted using controlled speech discrimination tests together with the results of the pure tone audiometry test, unless language difficulties or inconsistent speech audiometry scores make the use of both pure tone average and speech discrimination inappropriate. The auditory acuity level (I through XI) will be determined for each ear by intersecting the percentage of discrimination with the average hearing threshold level in decibels. When language difficulties or inconsistent speech audiometry scores make the use of both pure tone average and speech discrimination inappropriate, the auditory acuity level will be based solely on pure tone averages. The percentage evaluation will be found by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation for the ear having the poorer hearing. 38 C.F.R. § 4.85. The April 1991 VA audiometric examination found that the veteran's right ear had an average pure tone air conduction threshold of 43 decibels and a discrimination ability of 100 percent. In the left ear, the average pure tone air conduction threshold was 65 decibels and discrimination ability was 72 percent. His hearing acuity is level I in the right ear and level V in the left ear. For this degree of auditory acuity, a zero percent rating is provided by the schedule. 38 C.F.R. § 4.85, Diagnostic Code 6100. ORDER Service connection for a disorder of either knee, a low back disorder, a left shoulder disorder, anxiety and sinusitis is denied. An increased evaluation for defective hearing is denied. REMAND In a December 1994 statement, the veteran reported that he had been treated at George Air Force Base in Victorville, California, in 1977 and at "ODELL" (MacDill?) Air Force Base in Tampa, Florida, in 1978. This information was apparently submitted in response to the Board's prior remand which requested the RO to develop further information about the cardiovascular disease. It does not appear that these records have been requested. The VA should attempt to obtain those records to ascertain if they constitute new and material evidence. The case is REMANDED for the following additional development: 1. An attempt should be made to obtain the treatment records from George and MacDill Air Force Bases and associate them with the claims file. Any evidentiary lead should be followed to its logical conclusion. 2. The veteran should be requested to submit or identify any additional evidence he wishes to have considered with regard to the issue of the disorder of the cardiovascular system or knees. This may include records associated with his lawsuit. If he chooses to identify the evidence, he should provide sufficient detail to allow VA personnel to assist him in obtaining it including the name(s) and address(es) of examining or treating physicians or facilities and the approximate date(s) of examination or treatment. The veteran should be requested to authorize the release of any private medical records and furnished the necessary forms to do so. All records identified by the veteran should be obtained and associated with the claims file. 3. When the foregoing evidence has been received, the RO should review the file to determine if it constitutes new and material evidence for the cardiovascular disorder. 4. If there is new and material evidence for the cardiovascular disorder, the claim should be readjudicated on all of the evidence of record, both old and new. Manio v. Derwinski, 1 Vet.App. 140 (1991). This may include obtaining additional evidence in the form of a current VA examination if indicated and consideration of the representative’s request for an independant medical expert’s opinion. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a suitable opportunity to respond. Thereafter, the case should be returned to the Board, if in order, in accordance with the pertinent law and regulations regarding the processing of appeals. No further action is required of the veteran until he receives further notice. By this REMAND, the Board intimates no opinion, factual or legal, regarding the decision warranted, pending completion of the requested development. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -