Citation Nr: 9905749 Decision Date: 03/01/99 Archive Date: 03/11/99 DOCKET NO. 95-24 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for arthritis of the shoulders, right knee, and right elbow. 2. Entitlement to service connection for peripheral vascular disease. 3. Entitlement to service connection for the residuals of Agent Orange exposure, to include dermatofibroma of the left wrist and prostatitis. 4. Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a left eye disability. 5. Entitlement to an increased rating for intervertebral disc syndrome, currently evaluated as 20 percent disabling. 6. Entitlement to an increased rating for chronic obstructive pulmonary disease, currently evaluated as 10 percent disabling. 7. Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from February 1953 to March 1957, and from January 1963 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Seattle, Washington, regional office (RO) of the Department of Veterans Affairs (VA). The record shows that the issue of entitlement to an increased rating for coronary artery disease with hypertension was originally included among those on appeal. This disability has now been reevaluated as arteriosclerotic heart disease, hypertension, and sick sinus syndrome with permanent pacemaker, and evaluated as 100 percent disabling. As this represents a complete grant of the benefits sought by the veteran, this issue is no longer included on appeal. The issues of entitlement to increased ratings for chronic obstructive pulmonary disease and intervertebral disc syndrome are addressed in the remand portion of this decision. FINDINGS OF FACT 1. The claims for entitlement to service connection for peripheral vascular disease and arthritis of the shoulders, right knee, and right elbow are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 2. The claim for service connection for dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. The RO denied entitlement to service connection for a left eye disability when it issued an unappealed rating decision in October 1957. 4. The additional evidence submitted by the veteran since October 1957 is cumulative of evidence previously considered, and by itself or in connection with the evidence previously of record is not so significant that it must be considered in order to fairly decide the merits of the claim. 5. The veteran's right ear hearing acuity is at level I, and his left ear hearing acuity is at level II. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for arthritis of the shoulders, right knee, and right elbow is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for entitlement to service connection for peripheral vascular disease is not well grounded. 38 U.S.C.A. § 5107. 3. The claim for entitlement to service connection for dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure is not well grounded. 38 U.S.C.A. § 5107. 4. Evidence received since the final October 1957 rating decision wherein the RO denied entitlement to service connection for a left eye disability is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1998). 5. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for arthritis of the shoulders, right knee, and right elbow; peripheral vascular disease; and dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure. Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). A person who submits a claim for benefits under a law administered by the Secretary shall have 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 well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The claim does not need to be conclusive, but only possible in order to be well grounded. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The appellant has the burden of submitting evidence to show that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for there to be a well grounded claim for service connection, there must be evidence of incurrence or aggravation of a disease or injury during service, competent evidence that the veteran currently has the claimed disability, and evidence of a nexus between the inservice disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Competent evidence of the existence of a chronic disease in service or within the applicable presumption period, and present manifestations of the same disease are required to show chronicity. In order to show continuity of symptomatology, there must be medical evidence of a current disability, evidence that the condition was noted in service or the presumption period, evidence of post-service continuity of symptomatology, and medical, or in some circumstances, lay evidence of a nexus between the current disability and the post-service symptomatology. A claim that fails to demonstrate this evidence of either chronicity or continuity may not be well grounded. Savage v. Gober, 10 Vet. App. 486 (1997). If arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). When an issue involves either medical etiology or medical diagnosis, competent medical evidence is required to make the claim well grounded. Grottveit v. Brown, 5 Vet. App. 91,92 (1993), see also Rucker v. Brown, 10 Vet. App. 67 (1997). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service; 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, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes 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 epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). For the purposes of this section, 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 § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). Arthritis Factual Background A review of the veteran's service medical records indicates that he was seen for pain about the left tibial tubercle in February 1968. The impression was a stress fracture. Other records include a diagnosis of a cyst of the left medial meniscus in May 1970. The examiner stated that a meniscectomy would be required. February 1971 records again noted left knee swelling. The previous diagnosis of a cyst and recommendation of surgery was noted. April 1973 records show a history of several old injuries to the left knee. He was thought to have a cyst of either the medial meniscus or joint space. Additional service medical records show that the veteran continued to have problems with his left knee throughout 1973. He was admitted to the hospital in October 1973, where he underwent arthrotomy with medial meniscectomy of the left knee. Following some rehabilitation, the veteran was discharged in November 1973. The veteran complained of shoulder, arm and elbow pain in February 1986. He was treated for elbow and shoulder strain due to weight lifting. Additional February 1986 records state that the veteran was positive for elbow tendonitis. The examiner said that the veteran was negative for trauma. The veteran was afforded his retirement examination in October 1986. This examination was negative for evidence of an injury to or arthritis of the right knee, right elbow, or shoulders. On the Report of Medical History completed at this time, the veteran answered "yes" to a history of painful or "trick" shoulder or elbow, and "yes" to a history of swollen or painful joints. He answered "no" to a history of a "trick" or locked knee. On elaboration, the veteran stated that he had developed a cyst of the right knee from 1969 to 1970, and had cartilage removed from the right knee in October 1973. He further noted that his leg had been fractured beneath the right knee in 1968 Finally, the veteran added that he had injured his right knee around 1961, but that this had resolved without any problems. The remainder of the service medical records are negative for any evidence of trauma of the right knee, right elbow, or shoulders. They are also negative for a diagnosis of arthritis of the right knee, right elbow, or shoulders. The post-service medical evidence includes the report of an April 1988 VA examination. The veteran reported a history of epicondylitis of the right elbow. He stated that this occurred in the 1960's and was the result of a puncture wound to the right elbow. Since that time, he had noticed occasional pain in his right elbow when playing racquetball. On examination, the elbow had a full range of motion. There was no tenderness to palpation along the right lateral epicondyle. The olecranon bursa was not enlarged or inflamed. The shoulders were also normal with no tenderness and full range of motion. The impression included history of olecranon bursitis and lateral epicondylitis of the right elbow. The current examination was described as normal, and there was no evidence of any functional defects. An impression pertaining to the right knee or shoulders was not recorded. An additional VA examination conducted in May 1988 was also negative for arthritis. VA treatment records dated from 1989 to 1994 are contained in the claims folder. February 1991 records state that the right knee was unremarkable. VA treatment records dated June 1993 state that the veteran is status post arthroscopic knee surgery in 1973. These records did not specify which knee had been treated. Arthritis of the right knee, right elbow, and right shoulder were not noted in these records. Private hospital records dated in March 1993 state that the veteran is status post knee surgery in 1973. The review of the veteran's systems was unremarkable, and arthritis of the right knee, right elbow, and right shoulder was not indicated. The veteran presented testimony in support of his claim before a hearing officer at the RO in July 1995. A transcript of his testimony has been associated with the claims file. The veteran was afforded a VA orthopedic examination in September 1995. He gave a history of an injury as a result of a parachute jump during service in 1954. He reported the development of low back pain as a result of this accident. The veteran could recall no specific injury to his shoulders, but believed he had arthritis. He reported no specific treatment of his shoulders through the years other than the use of pain relief medication. Presently, he reported pain in his shoulders, especially while holding his arms out in front of him. He did reasonably well at rest, and reaching overhead caused no particular increase in pain. The veteran stated that he had bumped his right elbow on a spike some years previously, and had developed a swelling about the right elbow. He said he was told this was olecranon bursitis. Fluid was aspirated from this elbow. At times, he had pain in his elbow without provocation. He had experienced these pains several times since 1962. Currently, his right shoulder was totally asymptomatic. The veteran reported that he had developed a cyst in his right knee in 1970. In 1973, he was noted to have a lump on the medial aspect of the knee, and this was aspirated. The veteran was then casted for some time, and he reported significant atrophy in his right thigh. Later, he felt a ripping sensation in his knee, and was told he had a torn meniscus. He underwent a medial meniscectomy. The knee improved, and the veteran later returned to duty. Through the years, he stated that he developed more pain in the right knee. The veteran complained of pain associated with walking, and he reported occasional swelling. There were no episodes of giving way. The veteran felt he had more pain in his left knee than his right. An X-ray study of the shoulders was negative for arthritis. A study of the knees revealed mild medial joint compartment narrowing on the right and moderate medial joint compartment narrowing on the left, consistent with degenerative joint disease. The impressions included status postoperative left medial meniscectomy, mild degenerative joint disease of the knees, and right olecranon bursitis, resolved. Analysis The Board finds that the veteran has not submitted evidence of a well grounded claim for entitlement to service connection for arthritis of the right knee. Although the veteran reported a history of right knee surgery in October 1973 at his October 1986 discharge examination, a careful review of the remainder of the service medical records reveals that the veteran actually developed a cyst and underwent surgery for his left knee at that time. Service connection is currently in effect for the residuals of meniscectomy of the left knee with degenerative joint disease. The examination conducted at discharge was negative for arthritis of the right knee. Furthermore, the post-service medical records are entirely negative for any evidence of right knee arthritis until the September 1995 VA examination, which was conducted more than eight years after the veteran was discharged from service, and more than seven years after the end of the presumptive period for arthritis. The examiner did not express any opinion that would relate arthritis to active service. The Board recognizes the veteran's sincere belief that his current right knee problems are the result of repeated parachute jumps, but he is not a physician, and is not qualified to express a medical opinion as to such a relationship. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, without evidence of a nexus between the veteran's current right knee disability and active service, his claim is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91,92 (1993). Similarly, the Board is unable to find that the veteran has submitted evidence of a well grounded claim for entitlement to service connection for arthritis of the shoulders or right elbow. The service medical records are negative for evidence of a diagnosis of arthritis of the shoulders or right elbow, or of a trauma to the shoulders or right elbow. He was seen for complaints of shoulder and elbow pain following weight lifting in February 1986, but the October 1986 examination was negative for a disability of the right elbow or shoulders. The post-service medical records are also negative for a diagnosis of arthritis of the right elbow or shoulders, and the September 1995 VA examination noted only resolved right olecranon bursitis. Therefore, as the veteran has not submitted any evidence of arthritis of the right elbow or shoulders during service, and has not submitted any evidence of a diagnosis of arthritis of the right elbow or shoulders after discharge from service, his claim is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Peripheral Vascular Disease Factual Background Initially, the Board notes that entitlement to service connection for arteriosclerotic heart disease, hypertension, and sick sinus syndrome with permanent pacemaker is currently in effect. A 100 percent evaluation is assigned for this disability. The service medical records are negative for evidence of peripheral vascular disease. The October 1986 retirement examination and the medical history obtained at that time are both negative for this disability. The veteran was afforded a VA examination in April 1988. This examination was negative for peripheral vascular disease. Private hospital records dated April 1993 show that the veteran was admitted with complaints of light headedness. He was under consideration for placement of a pacemaker. The examination was negative for peripheral vascular disease. The veteran testified at the July 1995 hearing that he had experienced cramping of his legs since 1957. However, he was unable to recall if he had ever been told by a doctor that he had peripheral vascular disease. See Transcript. The veteran underwent a VA examination for diseases of the heart in August 1995. The assessment included sick sinus syndrome, resolved with a cardiac atrial ventricular pacemaker, left atrial and left ventricular hypertrophy, and Class I New York Heart Association classification. The examination was negative for peripheral vascular disease. May 1996 VA hospital records show that the veteran was admitted for an acute inferior wall myocardial infarction. These records are negative for peripheral vascular disease. Additional VA treatment records and private medical records dated through 1996 are contained in the claims folder. These records are negative for a diagnosis of peripheral vascular disease. Analysis The Board finds that the veteran has not submitted evidence of a well grounded claim for entitlement to service connection for peripheral vascular disease. The service medical records are completely negative for this disability, as are the post service medical records. There is no evidence that the veteran has ever been diagnosed as having peripheral vascular disease. The Board recognizes the seriousness of the veteran's service connected arteriosclerotic heart disease, as is reflected by the 100 percent rating currently in effect. However, this in and of itself does not constitute peripheral vascular disease. The Board recognizes the veteran's sincere belief that he has this disability, but he is not a doctor, and is not qualified to render such a diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, without evidence that the veteran had peripheral vascular disease during service, and without evidence that he currently has this disability, his claim is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure Factual Background The veteran's Form DD 214 shows that the veteran was awarded the Vietnam Service Medal, the Republic of Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross Unit Citation with Palm. These awards as well as the veteran's numerous statements and his testimony at the July 1995 hearing provide ample evidence of service in Vietnam, and he is presumed to have been exposed to an herbicide agent during this period. 38 C.F.R. § 3.307. The veteran's service medical records show that he was treated for lesions in May 1968. The location of these lesions was not noted. The veteran was tested for diabetes in conjunction with his treatment. December 1972 records indicate that the veteran was seen for an abscess of the left upper arm. A small subcutaneous lump was noted, and the examiner stated it was probably scar tissue. Excision was not recommended. The veteran answered "yes" to a history of a tumor, growth, cyst, or cancer on a December 1973 Report of Medical History. There were no further comments pertaining to this answer. He answered "no" to a history of skin diseases. A medical examination conducted at this time showed that the skin was normal, and was negative for a tumor, growth, cyst, or cancer. The veteran was treated for dermatitis of the groin and face in December 1979. This problem had been present for several months. On examination, there were erythematous papules at the mandibular area, as well as at the subinguinal area. The assessment included facial dermatitis, impetigo, and intertrigo. Additional December 1979 records show that this condition was resolving nicely. January 1982 records show that the veteran was again treated for a slight weeping rash on the right side of his chin with a slight discharge. The diagnosis/assessment was rule out impetigo. The veteran underwent his annual examination in November 1982. His prostate was noted to be within normal limits. His skin was normal. He answered "yes" to a history of a tumor, growth, cyst, or cancer on the Report of Medical History, but there were no further comments. He answered "no" to a history of skin diseases. The veteran was treated for a rash in January 1983. There was erythema over the anterior surface of the scrotum and in the perineal groove of the arms. Additional January 1983 records contain a diagnosis of intertrigo. At the veteran's October 1986 retirement examination, a small lipoma of the left anterior chest wall was noted. This was one half centimeter in size. The examination stated that the veteran's skin was normal. The veteran answered "no" to a history of skin diseases, but "yes" to a history of a tumor, growth, cyst, or cancer on a Report of Medical History obtained at this time. On elaboration, the veteran noted he had a cyst on the inside of his knee. Post-service medical records include the findings of a VA examination conducted in April 1988. He was noted to have had a cyst on his left arm for many years, and had been advised that if it became enlarged or infected, he was to have it removed. However, it had never caused him any problems. A history of a cyst on his chest was also noted, but this was eventually determined to have been a bump as a result of an old rib fracture. The impressions included a history of a sebaceous cyst on his left arm. A small cyst was present, but it was not inflamed, and there was no evidence of any other pathology. The examiner did not identify any disabilities associated with Agent Orange, and prostatitis was not noted. An additional May 1988 VA examination noted that the veteran had traveled through multiple defoliated areas, but had no direct defoliant operations. VA hospital records dated May 1996 note that the veteran was admitted for atypical angina. His problem list included prostatitis. The veteran was afforded an Agent Orange examination in January 1997. He stated that he had been in defoliated jungles, as well as around some aircraft that had been used for spraying Agent Orange. He had experienced some problems with skin growths on his arms. He had a history of prostatitis from November 1995. He was noted to have been seen in the dermatology clinic for a skin disability. The examination was unremarkable except for some firmness of the right lobe of the prostate. There was also a seven millimeter dermatofibroma of the left wrist. The veteran had some hyperpigmentation from earlier tinea cruris, and a small eczematous patch of the medial aspect of the left thigh. The assessment included dermatofibroma, fibroma of the upper arms bilaterally, history of elevated prostate-specific antigen with a negative biopsy, history of prostatitis, history of myocardial infarction, and no other apparent sequela of Agent Orange exposure to date and no other remarkable abnormalities on the examination. Analysis The Board finds that the veteran has not submitted evidence of a well grounded claim for service connection for dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure. The veteran was treated for an abscess of the left upper arm and left chest wall, and service connection is in effect for these disabilities. The service medical records also show that the veteran had a normal prostate in November 1982. The remainder of the service medical records are negative for prostatitis. The veteran has a history of prostatitis that dates from November 1995, but a biopsy was negative, and there is no diagnosis of prostate cancer. Dermatofibroma of the left wrist was initially noted in January 1997. Both the prostatitis and the dermatofibroma were initially noted many years after discharge from service, and neither is recognized as a disability that is related to Agent Orange exposure. As the veteran has not shown on the basis of competent medical evidence that he has dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure, his claim must be denied as not well grounded. 38 C.F.R. § 3.309(e). Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Although the Board considered and denied the veteran's appeal on a ground different from that of the RO, which denied the veteran's claims for service conection for multiple disorder on the merits, he has not been prejudiced by the decision. This is because in assuming that the claims were well grounded, the RO accorded him greater consideration than his claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the implausibility of the veteran' claims and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his appeal for service connection for multiple disorders. The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the claims for entitlement to service connection for arthritis of the shoulders, right knee, and right elbow; peripheral vascular disease; and dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure are not well grounded, the doctrine of reasonable doubt is not applicable to these claims. II. Where new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disability. The veteran contends that he has developed a left eye disability as a result of active service. He states that a tree branch popped him in the eye and injured him while he was on maneuvers in 1954. He believes that this has resulted in a permanent disability. The record shows that entitlement to service connection for a left eye injury and other disabilities was denied in an October 1957 rating decision. The veteran was notified of this decision in an October 1957 letter. A request to conduct an additional search for service medical records was received in October 1957. However, the veteran did not signify an intent to appeal this issue within the one year period allowed by law. Therefore, the October 1957 rating decision is final, and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936 to December 31, 1957. Criteria If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1998). When a claimant requests that a claim be reopened after a decision has been promulgated and submits evidence in support thereof, a determination as whether such evidence is new and materia must be made, and if it is, as to whether it provides a basis for allowing the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 20.1105. If new and material evidence is submitted regarding a claim which has previously been denied, then the claim can be reopened and reviewed. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). When a claimant request to reopen a previous decision that is final, the Board must conduct a two-part analysis. The Board must first determine whether the evidence submitted is "new and material". If the Board determines that the veteran has submitted evidence that is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273, 284, (1996) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)). However, such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans, 9 Vet. App. at 284. The Court has stated that in order for a claim to be well grounded there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza, 7 Vet. App. at 506. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently ruled that the U.S. Court of Appeals (Court) had erred in adopting the test articulated in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Hodge v. West, 155 F.3d 1396 (1998). In Colvin, the Court adopted the following rule with respect to the evidence that would justify reopeneing a claim on the basis of new and material evidence, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin, 1 Vet. App. at 174. In light of the holding in Hodge, the Board will analyze the evidence submitted in the case at hand according to the standard articulated in 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The well groundedness requirement shall not apply with regard to reopeneing disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet. App. 134 (1994). Factual Background The evidence considered by the RO in October 1957 included the veteran's service medical records for his first period of service. The RO found that there was no record of an eye injury in service. The claim was denied as not shown by the evidence of record. The evidence received since October 1957 includes the report of a VA examination conducted in January 1958. The examination report notes that the veteran gave a history of a left eye injury when struck by a tree branch in 1954. He had been treated for a few days and cured. There were no current complaints referable to the eye, and no residuals of the injury. On examination of the eyes, the diagnosis was no residuals of an injury to the left eye. The service medical records from the veteran's second period of service show that in an October 1986 Report of Medical History obtained in conjunction with his retirement, the veteran said that a branch of a tree had caused corneal damage in 1954. He stated that this was resolved. A medical examination conducted at this time was negative for any residuals of the injury. The remaining service medical records are negative for any evidence of a left eye disability. The veteran underwent a VA examination in April 1988. On examination of the eyes, the veteran was noted not to have any visual complaints. The history of the branch injury to the eye in 1954 was noted. Following examination, the assessment was low hyperopic astigmatism and presbyopia. The veteran's ocular health was described as normal, and the examiner did not note any residuals of the injury to the left eye. The veteran underwent an additional VA general medical examination in May 1988. A small area of increased nerve fibers was noted lateral to the disk in the left eye. The examiner did not render a diagnosis pertaining to the eyes. VA treatment records dated in December 1993 show that the veteran underwent an eye examination. The assessment was glaucoma suspected with normal intraocular pressures. No residuals of a left eye injury were noted. The remaining evidence submitted by the veteran consists of additional VA treatment records dated through 1996, as well as private medical records and statements from the veteran. The medical records are all completely negative for evidence of a current left eye disability as a result of a trauma to the eye. The veteran's statements essentially repeat in greater detail his contentions regarding how the injury to the left eye occurred. Analysis The Board finds that the veteran has not submitted new and material evidence to reopen his claim for entitlement to service connection for the residuals of a left eye injury. The October 1957 rating decision which denied the veteran entitlement to service connection for a left eye disability did so on the basis that a left eye disability was not shown by the evidence. Similarly, none of the additional evidence submitted by the veteran demonstrates the existence of a left eye disability. The extensive service medical records for the veteran's second period of active service are negative for a left eye disability. The October 1986 medical history contained in the veteran's service medical records merely repeats his contentions that an injury to the left eye occurred in 1954, but adds that the injury resolved. The medical examination conducted at that time was negative for a residual disability. The post service medical records show hyperopic astigmatism, presbyopia, and suspected glaucoma, but are completely negative for a residual disability as a result of a trauma to the left eye. Therefore, as none of the evidence submitted by the veteran demonstrates he currently has residuals of a left eye injury linked to his period of service, it is not new or material, and may not serve to reopen his claim. 38 C.F.R. § 3.156(a). III. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. Initially, the Board finds that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, plausible claims have been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). An allegation of increased disability is sufficient to establish a well- grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed to their full extent and that the VA has met its duty to assist. White v. Derwinski, 1 Vet. App. 519 (1991); Godwin v. Derwinski, 1 Vet. App. 419 (1991). Criteria The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Impairment of hearing acuity means the organic hearing loss for speech. 38 C.F.R. § 4.87. The schedule takes into consideration that a veteran may wear a hearing aid. 38 C.F.R. § 4.86. Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as noted by the results of controlled speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6100. In order for the veteran to receive a 10 percent evaluation for his bilateral hearing loss, the hearing acuity levels must be shown to be at III and IV, II and V, or higher combinations. Lower combinations would warrant a continuation of the noncompensable evaluation now in effect. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100, 6101. Where there is a question as to which of two evaluations may be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). Factual Background & Analysis The evidence for consideration includes VA treatment records dated July 1993. The veteran reported asymmetrical hearing loss since 1967, left ear greater than right ear, but gradually decreasing bilaterally. He reported bilateral tinnitus, which manifested as a periodic hissing sound. The right ear had moderate high frequency sensorineural hearing loss, and the left ear had mild to moderate sensorineural hearing loss. At the July 1995 hearing, the veteran testified that he wore hearing aids provided by VA. The veteran said that when he was not wearing his hearing aids, he had problems hearing people talk. He also noted that he had an occasional ringing in his ears. See Transcript. The veteran underwent a VA audiological evaluation in August 1995. The right ear had pure tone thresholds of 10, 25, 35, and 45 decibels for the frequencies of 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 40, 50, 50, and 55 decibels at these same frequencies. These frequencies are the frequencies of normal conversation, and are required to be averaged by law. The average threshold for the right ear was 28 decibels, and the average threshold for the left ear was 48 decibels. Speech recognition ability was 94 percent for the right ear and 90 percent for the left ear. These results are commensurate with level I hearing in the right ear and level II hearing in the left ear, which yields a zero percent evaluation in accordance with the schedular rating criteria. 38 C.F.R. §§ 4.85, 4.87, Code 6100. In reaching this decision, the Board has considered the veteran's argument that his hearing loss has increased. However, the evidence clearly weighs against the assignment of a compensable evaluation in this case. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss. The evaluation of hearing loss is reached 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, 349 (1992). Therefore, the only possible interpretation of the most recent evidence is that the veteran's hearing loss is at level I for the right ear and level II for the left ear, and that, therefore, a compensable rating is not warranted. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased (compensable) evaluation for bilateral hearing loss. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER The veteran not having submitted well grounded claims of entitlement to service connection for arthritis of the shoulders, right knee, and right elbow; peripheral vascular disease; and dermatofibroma of the left wrist and prostatitis as secondary to Agent Orange exposure, the appeal is denied. The veteran not having submitted new and material evidence to reopen his claim for service connection for a left eye disability; the appeal is denied. Entitlement to an increased (compensable) rating for bilateral hearing loss is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The Board notes that the regulations governing the evaluation of chronic obstructive pulmonary disease were changed during the course of the veteran's appeal, effective from October 1996. The record indicates that the RO last reviewed the veteran's claim in a July 1996 rating decision. When a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has not had an opportunity to review the veteran's claim under the new regulations. Therefore, the Board finds that this claim must be returned to the RO for further consideration. Furthermore, the record shows that the veteran was last afforded an examination of his chronic obstructive pulmonary disease in March 1995. The Board believes that a contemporaneous comprehensive examination would materially assist in the evaluation of the veteran's claim. The veteran was last examined by VA as to the severity of his intervertebral disc syndrome in 1995. Intervertebral disc syndrome is rated under diagnostic code 5293 of the VA Schedule for Rating Disabilities. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998). Johnson v. Brown, 9 Vet. App. 7 (1997), and Deluca v. Brown, 8 Vet. App. 202, 206 (1995). Therefore, consideration of an increased evaluation based on functional loss due to pain on flare-ups with limitation of motion of the lumbar spine is proper. The VA General Counsel in a precedent opinion has held that diagnostic code 5293, for intervertebral disc syndrome, involves loss of range of motion and that consideration of 38 C.F.R. §§ 4.40, 4.45 is applicable. VAOPGCPREC 37-97 (O.G.C. Prec. 37-97). The codes applied in the veteran's ratting for his back disability contemplate limitation of motion of the lumbar spine in evaluating the claimant's appeal for increased compensation benefits. The 1995 VA examination of the veteran did not include by the examiner an evaluation of functional loss due to pain "on use or due to flare-ups", weakened movement, etc. A contemporaneous examination addressing 38 C.F.R. §§ 4.40, 4.45, 4.59 would materially assist in the adjudication of the claimant's appeal. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107. This includes affording the veteran adequate medical examinations and obtaining all relevant records. Therefore, in order to assist the veteran in the development of his claim and to afford him due process, the Board remands this claim for the following actions: 1. The RO should obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who have treated the veteran for his intervertebral disc syndrome and chronic obstructive pulmonary disease since 1995. After securing any necessary authorization or medical releases, the RO should obtain and associate with the claims folder legible copies of the veteran's complete treatment reports from all identified sources whose records have not previously been obtained. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 2. The RO should arrange for a VA pulmonary examination of the veteran by an appropriate specialist to determine the current nature and extent of severity of his chronic obstructive pulmonary disease. The claims file, copies of the previous and amended criteria for rating respiratory disorders, and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. Any further indicated special tests and studies should be conducted. Any opinions expressed as to severity of chronic obstructive pulmonary disease must be accompanied by a complete rationale. 3. The RO should arrange for VA orthopedic and neurological examinations of the veteran by appropriate specialists for the purpose of ascertaining the nature and extent of severity of his intervertebral disc syndrome. The claims file, copies of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59, and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations and the examination reports must be annotated in this regard. Any further indicated special studies should be conducted. The examiners must address criteria pertaining to functional loss due to pain on flare-ups, weakened movement, etc. set out in the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59. Any opinions expressed as to the severity of intervertebral disc syndrome must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1995) 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to increased evaluations for intervertebral disc syndrome and chronic obstructive pulmonary disease. The claims should be evaluated under the criteria of 38 C.F.R. §§ 4.40, 4.45, 4.59 as to intervertebral disc syndrome, and previous and amended criteria as to chronic obstructive pulmonary disease, with application of those criteria more favorable to the veteran. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals