Citation Nr: 0319203 Decision Date: 08/06/03 Archive Date: 08/13/03 DOCKET NO. 97-26 991A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for thrombophlebitis of the left leg. 2. Entitlement to service connection for musculoskeletal chest wall pain as a result of exposure to herbicides. 3. Entitlement to an increased evaluation for service- connected bilateral hearing loss, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from November 1954 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The veteran's case was remanded by the Board for additional development in August 2000. While in a remand status, the veteran's disability rating for his service- connected bilateral hearing loss was increased to 10 percent. The case is again before the Board for appellate review. When the case was before the Board in August 2000 the issues of entitlement to service connection for brown lesions and sebaceous cysts, and for benign prostatic hyperplasia, due to herbicide exposure, were also on appeal. The veteran withdrew those issues from appellate consideration at a March 2003 Board hearing. 38 C.F.R. § 20.204(b), (c) (2002). Accordingly, the Board will only exercise appellate jurisdiction over the remaining issues as noted above. FINDINGS OF FACT 1. The veteran's original claim for service connection for thrombophlebitis of the left leg was denied by a RO decision dated in April 1986; no appeal was perfected. 2. Evidence received since the April 1986 RO decision, when considered in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for thrombophlebitis of the left leg. 3. The veteran has current residuals that are reasonably attributable to his left leg injury and diagnosis of superficial thrombophlebitis in service. 4. The veteran has musculoskeletal chest wall pain that is caused by degenerative joint disease (DJD) of the thoracic spine that in turn is likely attributable to his active military service. 5. The veteran's bilateral hearing loss is manifested by level I hearing in the right ear and level III hearing in the left ear as of August 1998 and level III hearing in the right ear and level VI hearing in the left ear as of November 2001. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of service connection for thrombophlebitis of the left leg has been submitted. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2001). 2. The veteran likely has thrombophlebitis of the left leg that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2002). 3. The veteran has degenerative joint disease of the thoracic spine that causes musculoskeletal chest wall pain, and is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). 4. A disability evaluation in excess of 10 percent for service-connected bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.383, 4.85-4.87, Diagnostic Codes 6100, 6101 (1998); 38 C.F.R. §§ 3.383, 4.85-4.86, Diagnostic Code 6100 (2002); Veterans Benefits Act of 2002, Public Law 107-330. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The veteran served on active duty from November 1954 to January 1985 when he retired from active service due to years of service. A review of service medical records (SMRs) reflects that the veteran injured his left leg while running on March 23, 1967. He was admitted for treatment and evaluation. An entry dated March 30, 1967, shows that the veteran was discharged, fit to fly, with a diagnosis of superficial thrombophlebitis of the left ankle. The veteran was seen in April 1977 for soft tissue trauma involving the gastrocnemious muscle of the left leg . The injury occurred while the veteran was playing tennis. An entry dated in June 1977 noted that the veteran continued to complain of pain in the muscle. Physical examination noted no indication of phlebitis. There was tenderness. X-rays of the left calf were negative. The veteran underwent a period of physical therapy to treat the problem. The remainder of the SMRs are negative for any further complaints relating to the left leg and there is no further mention of thrombophlebitis. The veteran was afforded VA examinations in March 1985. There was no complaint noted regarding the left leg and no physical findings of any abnormality involving the left leg. The veteran submitted a claim for entitlement to service connection for thrombophlebitis in November 1985. The veteran was afforded a VA examination in March 1986. The veteran was noted to have a history of thrombophlebitis of the left leg with a pulmonary emboli with residual chest symptoms. The examiner reported that there were no objective findings. The veteran's claim was denied by way of a rating decision dated in April 1986. The rating decision cited to the March 1986 VA examination report to say that there was no current evidence of thrombophlebitis. Notice of the denial was provided in May 1986. The veteran did not submit a notice of disagreement and the decision became final. See 38 C.F.R. §§ 20.302, 20.1103 (2002). As a result, service connection for thrombophlebitis of the left leg may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In September 1998, the United States Court of Appeals for the Federal Circuit issued an opinion which overturned the test for materiality established by the United States Court of Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called "change in outcome" test). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal Circuit in Hodge mandated that materiality be determined solely in accordance with the definition provided in 38 C.F.R. § 3.156(a). (The Board notes that 38 C.F.R. § 3.156(a) was amended in August 2001. However, that amendment is applicable only to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)). Under 38 C.F.R. § 3.156(a) (2001), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim and if it is not merely cumulative or redundant of other evidence that was then of record. See also Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet. App. 95, 98 (1993). "Material" evidence is evidence which bears directly and substantially upon the specific matter under consideration, 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. See 38 C.F.R. § 3.156(a); Hodge, supra; cf. Duty to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.156(a)) (new and material evidence is defined differently for claims filed on or after August 29, 2001). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 1986 RO decision consisted of the veteran's SMRs, statements from the veteran and VA examination reports dated in March 1985 and March 1986. As noted above, the SMRs reflected that the veteran was hospitalized for treatment for an injury to the left leg in March 1967 and diagnosed with superficial thrombophlebitis of the left leg. He was again evaluated for left calf pain and tenderness in April and June 1977. The March 1986 VA examination failed to find any objective evidence of thrombophlebitis. The veteran submitted a request to reopen his claim in December 1996. Evidence received since the April 1986 decision consists of multiple lay statements from the veteran, an evaluation report, dated in August 1996 and letter dated in November 1996 from C. C. Carson, III, M.D., lay statement from a. [redacted] dated in May 1997, records from Fayetteville Orthopaedic Clinic (R. Logel M.D.), for the period from March 1989 to September 1997, treatment records from Cape Fear Valley Health System for the period from April 1996 to February 1999, treatment records from T. W. Rucker, M.D., for the period from May 1993 to February 1999, treatment records from Cape Fear Eye Associates for the period from July 1993 to November 1999, evaluation report from Behavioral Health Care, dated in May 2000, treatment records from Fayetteville Urology Associates for the period from July 1992 to November 2000, VA outpatient treatment records for the period from April 1994 to November 2000, VA examination reports dated in September 1995, March 1997, June 1996, August 1998, November 2001 and June 2002, evaluation reports from O. T. Ashton, M.D., dated in April 2002, May 2002, and August 2002, medical opinion from C. N. Bash, M.D., dated in March 2003, and hearing transcripts dated in June 1997, April 2000, and March 2003. All of the evidence noted above is new in that it was not of record previously. The records from Dr. Carson, Dr. Rucker, Cape Fear Eye Associates, Fayetteville Urology Associates, Cape Fear Valley Health System, and Behavioral Health Care are not relevant to the veteran's pending claim for thrombophlebitis. The records relate to treatment provided for unrelated issues. The May 1997 statement from Mr. [redacted] supports SMR entries regarding the injury to the left leg in March 1967 and subsequent hospitalization and diagnosis of thrombophlebitis. The statement does not provide any information regarding the veteran's status after March 1967 and is not material to the current claim as it is essentially duplicative of the evidence in the SMRs. The records from Dr. Logel document the first post-service treatment for complaints of left leg pain. The veteran was evaluated in March 1989 for complaints of pain in the mid- left lower leg. Dr. Logel remarked that, clinically, the veteran's symptoms were consistent with shin splints. He noted that the veteran had some increase in venous stasis in the left leg and had a past injury to the left leg with some phlebitis. Dr. Logel did not think the veteran's symptoms represented post-phlebitis syndrome. He noted that there was some venous congestion. A May 1989 entry noted that the veteran was doing well and discontinued running. He had had two episodes of shin splint pain. The records are material in that they document a problem with the veteran's left leg with venous involvement, a problem that was not noted on the March 1986 VA examination that was the basis of the denial of the prior claim. The VA treatment records contain scattered entries relating to the veteran's left leg complaints. The veteran was seen in April 1994 for complaints of deep calf pain in the left leg. There was mild swelling of the left ankle noted but no calf swelling. A neurology consultation, dated in September 1996 noted the veteran's history of a left leg injury in service with continued off and on burning pain that had worsened over the years. The impression was post-traumatic neuralgia of the left leg. An orthopedic clinic entry, dated in October 1996, noted that the veteran had chronic deep vein thrombosis (DVT) of the left leg. This finding was repeated in an April 1997 clinical entry. Entries dated in November 2000 note venous insufficiency in the left lower extremity. The September 1995 VA examination noted that the veteran hobbled and favored his right leg. The March 1997 VA vascular examination noted that the veteran was in obvious pain. The examiner remarked that the veteran described his condition intelligently. Physical examination revealed a large varicosity in the mid-portion of the left leg with generalized swelling of the calf and acute tenderness even on light palpation in the posterior calf area. The diagnosis was history of thrombophlebitis of the left leg with progressively worsening pain. An August 1998 infectious disease examination noted swelling of the left leg. Finally, the June 2002 vascular examination provided a diagnosis of superficial thrombophlebitis of the left ankle with residuals. The records from Dr. Ashton pertain to evaluation of the veteran's chronic venous insufficiency, saphenous incompetence and venous varicosities. Duplex imaging studies were interpreted to venous reflux for the left leg as well as dilated and bulging varicosities and isolated popliteal vein insufficiency without obstruction. Dr. Ashton felt that the veteran's history of phlebitis and pulmonary embolism in service dictated treatment of the veteran's condition. The opinion from Dr. Bash refers to a review of the evidence of record and an assessment that the veteran's proper diagnosis is deep calf phlebothrombosis that has caused and is aggravating his varicose veins. Dr. Bash did not directly relate the diagnosis to any incident of service. His opinion implied a connection between the veteran's injury in 1967 and the diagnosis of varicose veins provided at the time of the June 2002 VA examination. Finally, the veteran provided testimony at his several hearings regarding the 1967 injury to his left leg and how he self-treated his continued pain and problems during service and after. The records from Dr. Logel, the cited VA treatment records, the cited VA examination reports, Dr. Ashton's report and the opinion from Dr. Bash all show a current left leg problem associated with the venous system of the left leg. As this represents a significant change from the findings at the time of the March 1986 VA examination, the evidence is such that it must be considered in deciding the veteran's claim for service connection for thrombophlebitis of the left leg. The veteran's claim is reopened. II. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, (West Supp. 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2002). If chronicity is not applicable, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). A. Left Leg The SMRs clearly document an injury to the left leg in March 1967 that required the veteran to be hospitalized for a week. The final diagnosis was superficial thrombophlebitis. The SMRs also document a second injury to the left calf muscle in April 1977. The records do not show a continuity of complaints or treatment for thrombophlebitis or a finding of any problems with the veteran's left leg. The SMRs include reports of physical examinations every year, except 1968, from 1966 to 1984. The veteran was required to undergo the annual physicals because of his status as a helicopter pilot. There was no mention of any left leg problems related to thrombophlebitis. The veteran also had a number of DA Forms 4186, Medical Recommendation for Flying Duty, in his SMRs that documented when he was not qualified to fly between 1972 and 1984. There was no indication that the veteran was grounded for any problems related to thrombophlebitis. The veteran was required to obtain a waiver of flight standards in 1982 because of this pulmonary embolism in 1981, his bilateral sensorineural hearing loss and defective vision. The veteran's December 1984 retirement physical examination does not address his 1967 treatment for thrombophlebitis. The veteran did list his 1981 treatment for a pulmonary embolism. VA records for the period from April 1994 to February 1998 reflect that the veteran was evaluated in April 1994 for complaints of left calf pain. A September 1996 neurology consultation noted the veteran's history of a left leg injury in 1967 and that the veteran continued to complain of pain since that time. The pain was characterized as burning and sometimes excruciating. There was no dysthesia noted. The neurologist provided an impression of post-traumatic neuralgia. An orthopedic clinic note from October 1996 provided a history of chronic DVT of the left leg. The veteran was advised to elevate his left leg and use an Ace bandage. An April 1997 entry also reported chronic DVT of the left leg. The March 1997 VA vascular examination noted that the veteran was in obvious pain. The examiner remarked that the veteran described his condition intelligently. Physical examination revealed a large varicosity in the mid-portion of the left leg with generalized swelling of the calf and acute tenderness even on light palpation in the posterior calf area. The diagnosis was history of thrombophlebitis of the left leg with progressively worsening pain. The Board interprets the report to show that the veteran's progressively worsening pain was in fact related to the history of thrombophlebitis. The veteran testified in June 1997 that he did not seek further treatment for his left leg in service. He self- treated with elevation, heat, and rest as needed. In a statement dated in September 1997, the veteran said that he was not seeking service connection for thrombophlebitis of the left leg. Rather he wanted service connection for residuals of a left leg injury that caused DVT, arthritis and periodic thrombophlebitis. The February 1999 private hospital summary noted the veteran's history of a pulmonary embolism in 1981 but also noted that there was no recurrence of an embolism or DVT. The records from Dr. Logel were received in April 2001. As noted above they reflect treatment in March 1989 for complaints of lower left leg pain that Dr. Logel ascribed to shin splints. However, the veteran was noted to have venous stasis and venous congestion. Dr. Logel did not think the veteran's symptoms represented post-phlebitis syndrome. VA outpatient treatment records, dated in November 2000, noted venous insufficiency of the left leg. Dr. Ashton evaluated the veteran in April and May 2002. Dr. Ashton noted a prior history of superficial thrombophlebitis, DVT, pulmonary embolism and cardiac arrest. His April 2002 clinical impression included superficial venous insufficiency, varicose veins with inflammation, pain in limb, swelling in limb, phlebosclerosis, superficial thrombophlebitis and post-phlebitic syndrome. Dr. Ashton performed venous reflux photoplethysmography and duplex venous imaging of both legs. The testing revealed superficial venous incompetence. He recommended treatment given the veteran's history of phlebitis and pulmonary embolism. The veteran was afforded a VA vascular examination in June 2002. The examiner reviewed the veteran's SMRs as well as the claims file, to include Dr. Ashton's report. He also noted that the veteran brought five color photographs to the examination that depicted his left leg from various angles. The examiner reported that there was minimal stasis noted over the medial posterior aspect of the left medial malleolus similar to that found on the photograph submitted by the veteran. The veteran complained of tenderness on the anterior, posterior, lateral and medial aspects of the entire lower leg when the leg was compressed. There were several superficial varicosities noted over the medial malleolus of the left ankle as noted in the photographs. The examiner remarked that the varicosities were outlined in black on the photograph. The diagnoses were superficial thrombophlebitis of the left ankle with residuals and status post pulmonary embolus, resolved. The examiner commented that there was no way to say without speculating whether the veteran's pulmonary embolus in service was the result of the prior episode of superficial thrombophlebitis in 1967. He noted that the veteran's military doctors felt the embolus was the result of the immobilization of the right leg after surgery. The examiner also said that the recent Doppler studies of the veteran's left leg did not show any evidence of phlebothrombosis. The examiner opined that the varicose veins noted in the current examination were not the result of the veteran's superficial thrombophlebitis in 1967. The Board reviewed the five color photographs submitted by the veteran. They were identified by the number 1476 on each photograph and depicted the veteran's left leg from different angles as described by the VA examiner. Certain areas were highlighted by black lines and appeared to show areas of swelling or varicose veins. In his March 2003 opinion Dr. Bash stated that the he had reviewed the June 2002 VA examination report. He also stated that he disagreed with the VA examiner's conclusion that the veteran's varicose veins were not related to the 1967 bout of thrombophlebitis in service. He expressed additional comments regarding further disagreement with how the VA examiner had assessed the evidence of record and what the evidence did or did not show. Dr. Bash concluded that the veteran likely had a left lower leg deep venous system problem of phlebothrombosis. He based this opinion on the veteran's severe left calf injury in service where he developed superficial thrombophlebitis. The veteran also had venostasis/lower extremity swelling and pulmonary emboli of unknown source. Dr. Bash stated that it was known that most emboli originate in the deep veins of the leg/calf. The veteran also had Doppler studies consistent with the secondary signs of phlebothrombosis. He said that phlebothrombosis was known to cause varicose veins. Dr. Bash stated that unless another unifying diagnosis was made or offered by another physician, other than phlebothrombosis, it was his opinion that the veteran likely had deep calf phlebothrombosis that had caused and was aggravating his varicose veins by way of incomplete perforating veins and vascular reflux. As noted above, the SMRs note the injury to the left leg in 1967 and that the veteran was hospitalized for approximately one week to treat his thrombophlebitis. He suffered a much less severe injury to the left leg in 1977. The veteran has testified that he self-treated his leg when he experienced pain and swelling by elevating it, and applying heat. The veteran has also testified and submitted statements that he has continued to experience pain and swelling in the left leg since the original injury. The March 1986 VA examination was negative for any findings at that time. However, subsequent treatment records and VA examination reports have documented objective findings of swelling, varicose veins, and venous insufficiency and noted subjective findings of pain and favoring of the left leg. Thus there is clear evidence of a current disability subsequent to the 1986 examination. The March 1997 VA examination provided a diagnosis of a history of superficial thrombophlebitis with progressively worsening pain. VA orthopedic and neurology evaluations in 1996 and 1997 related impressions of residuals of chronic DVT of the left leg and post-traumatic neuralgia of the left leg. Dr. Ashton's report, while documenting in depth the veteran's current problems, really did not address an etiology of the veteran's medical condition. He did find the history of phlebitis and pulmonary embolism to be significant in regard to the current findings. The June 2002 VA examination and report and the March 2003 from Dr. Bash are at odds as to whether there is a connection between any current problem with the left leg and the veteran's injury in 1967 and development of thrombophlebitis. After reviewing the evidence, the Board finds that the evidence is in equipoise as to whether the veteran currently has thrombophlebitis and whether it is related to his injury, and development of thrombophlebitis, in service. As such, all reasonable doubt is resolved in favor of the veteran and service connection is warranted. B. Musculoskeletal Chest Pain The evidence of record shows that the veteran served with the United States Army Special Forces for many years of his military career. This included approximately 61 months of duty in Vietnam between June 1963 and July 1969. The veteran participated in combat in Vietnam and received a number of military awards to signify such combat service to include a Purple Heart Medal for a wound in the right arm in 1965. The veteran attended a number of very physically challenging training programs as part of his Special Forces service to include becoming a parachutist and jump master. A review of the SMRs shows that the veteran suffered an injury to his right shoulder in April 1959. X-rays were negative at the time. The veteran was later evaluated for recurrent right chest pain in August 1959. A November 1959 entry noted that the veteran complained of back pain above the area of the last posterior rib with no history of injury. The veteran was treated for a fall from a ladder in July 1964. The entry indicates he fell from a height and landed squarely on his back. X-rays of the spine revealed no spine injury at the time. The veteran was then seen in April 1971 for complaints of acute upper back pain. Finally, in July 1984 the veteran was evaluated for a sprained back that occurred during a jump. He was noted to have paravertebral spasm on the right side in the lumbar and lower thoracic areas. The veteran indicated that he had suffered from recurrent back pain on his Report of Medical History that was prepared in conjunction with his December 1984 retirement physical. At a March 1985 VA examination the veteran complained of back pain. The examiner noted that there appeared to be an abnormal curvature of the spine and x-rays of the entire spine were ordered. X-rays of the thoracic spine were interpreted to show a mild right convex scoliosis of the middle third with slight spondylosis of the bodies. X-rays of the cervical and lumbar spine were interpreted to show evidence of degenerative disc disease (DDD). The veteran complained of chest pain on the right with exertion at the time of his March 1986 VA examination. No specific finding was made in evaluating the complaint. At his September 1995 VA examination the veteran complained of pain in his mid-thoracic spine area between the shoulders. Sometimes it hurt so bad that it would take his breath away. No impression or diagnosis was provided in regard to the thoracic spine. X-rays of the thoracic spine were interpreted to show slight scoliosis of the thoracic spine with minimal spondylosis involving the thoracic vertebrae. A VA orthopedic consultation from May 1996 noted a history of a back injury from a parachute jump in service. The examiner determined that the veteran's complaints of back pain were related to degenerative joint disease (DJD) of the thoracic and lumbosacral spine and DDD of the lumbar spine. A June 1996 Agent Orange examination reported a finding of musculoskeletal pain involving the lower thoracic and lumbar spine. The records from Dr. Rucker contain a February 1999 hospital summary that reported on the veteran's hospitalization for evaluation of chest pain. The veteran had experienced left- sided chest pain for approximately two weeks prior to admission. The impression at discharge was of musculoskeletal chest wall pain. Records from Cape Fear Valley Health System contain an x-ray report regarding the thoracic spine from the veteran's February 1999 hospitalization. The report indicated that there was evidence of degenerative changes of the mid- thoracic spine. The March 2003 opinion from Dr. Bash noted that the July 1964 SMR entry of the veteran falling on his back. He also noted the July 1984 SMR entry where the veteran sprained his back as the result of a parachute jump. Dr. Bash further noted the October 1996 VA record that provided an assessment of DJD of the thoracic spine as well as the results of the February 1999 hospital summary that provided a diagnosis of musculoskeletal chest wall pain. He stated that it was clear that the veteran suffered from several injuries to the thoracic spine in service. He said it was well known that injuries to the spine early in life often lead to advanced degenerative changes later in life. He then opined that the veteran's multiple in-service thoracic spine injuries likely damaged his ligaments and caused him to develop DJD of the thoracic spine. He also opined that the DJD of the thoracic spine was likely the cause of the current chest wall musculoskeletal pain. The veteran testified in March 2003 that he was not claiming a disability for musculoskeletal chest wall pain as due to herbicide exposure. (Transcript p. 3). Rather, he was claiming the disability as due to injuries in service. In reviewing all of the evidence of record the Board finds that there is a plausible basis to establish that the veteran has DJD of the thoracic spine that is related to service, and which causes the chest wall pain. This is based on the SMR entries denoting specific instances of injuries as well as the fact that the veteran was a Special Forces soldier with multiple tours of duty in combat in Vietnam and extensive training that support a conclusion of sustained heavy physical activity for many years in service. Further, the veteran has consistently complained of back pain since his discharge from service with prior x-ray evidence of DDD and DJD in both the cervical and lumbar spine areas. Finally, Dr. Bash has provided a nexus between the evidence of record documenting DJD of the thoracic spine with the veteran's injuries in service. Moreover, he has ascribed the veteran's complaints of musculoskeletal chest wall pain to the veteran's DJD of the thoracic spine. As such service connection is in order for DJD of the thoracic spine that causes musculoskeletal chest wall pain. III. Increased Rating The veteran was granted service connection for a bilateral hearing loss by way of a rating decision dated in May 1985. He was assigned a noncompensable disability rating at that time. The veteran was afforded a VA audiology examination in August 1998. Audiometric testing revealed puretone thresholds of 25, 35, 70, and 95 decibels in the right ear, at 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. Testing also revealed puretone thresholds of 30, 70, 80, and 95 decibels in the left ear for the same frequencies. The average decibel losses were 56 in the right ear and 69 in the left ear. The veteran had a speech discrimination score of 98 percent for the right ear and 84 percent for the left ear. The veteran's claim for an increased rating was denied in January 1999. In his March 1999 notice of disagreement the veteran said that he felt that his hearing loss disability greatly affected his personal life and employment. He said that he frequently had to request speakers to repeat their statements due to his difficulty in hearing. He also said that he had been denied hearing aids three times. The veteran testified at a hearing in April 2000. He said that he had difficulty in hearing a normal conversation, especially if he was not able to see the speaker's lips. He said that this affected his employment in that he was not able to give certain briefings because he would not be able to respond to questions. He felt that his hearing impairment also limited his ability to hear emergency vehicles on the road. Associated with the claims file are VA treatment records from the VA medical center (VAMC) in Fayetteville, North Carolina, for the period from January 1998 to November 2000. An audiogram was performed in April 2000 to evaluate the veteran's hearing loss for treatment purposes but not for compensation purposes. The records reflect that the veteran was fitted with VA hearing aids in July 2000. The records also show that the veteran underwent speech therapy from April 2000 on to assist in his ability to understand speech. Records from VAMC Durham, North Carolina, were also associated with the claims file. These included a duplicate copy of the August 1998 VA examination audiogram as well as an evaluation audiogram done in June 2000 that was done for evaluation but not compensation purposes. The veteran was afforded a VA audiology examination in November 2001. Audiometric testing revealed puretone thresholds of 35, 30, 75, and 105 decibels in the right ear, at 1,000, 2,000, 3,000, and 4,000 Hertz. Testing also revealed puretone thresholds of 35, 75, 90, and 100 decibels in the left ear for the same frequencies. The average decibel losses were 61 in the right ear and 75 in the left ear. The veteran had a speech discrimination score of 84 percent for the right ear and 70 percent for the left ear. None of the private medical records submitted during the development of the veteran's several claims contained any pertinent evidence regarding the veteran's bilateral hearing loss disability. The veteran and his spouse provided testimony at a hearing in March 2003. The veteran said that he wore bilateral hearing aids. He felt he would only have approximately 50 percent of his hearing without the hearing aids. His spouse said that she had to get the veteran's attention before saying anything to him if he was not wearing his hearing aids. She said that she could not speak to him in another room if he was not wearing his hearing aids. The veteran said that his hearing impairment sometimes interfered with his job when he would not hear a question and would give an answer on another subject. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2002). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two evaluations shall 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 (2002). The Board notes that effective June 10, 1999, VA revised the criteria for evaluating Diseases of the Ear and Other Sense Organs. 64 Fed. Reg. 25,202-210 (1999); codified at 38 C.F.R. § 4.85-4.87 (2002). However, the changes in regulations pertaining to evaluations for hearing loss were not significant in regard to this veteran's disability ratings. The Board notes that the RO has had a chance to evaluate the veteran's claim under both the new and prior rating criteria. Karnas v. Derwinski, 1 Vet. App. 308, 312- 313 (1991) (where the law or regulations change while a case is still pending, the version most favorable to the claimant applies). As such, the Board concludes that there is no prejudice to the veteran by evaluating his hearing loss disability under both sets of rating criteria. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As noted previously, regulations pertaining to rating disabilities for hearing loss were amended effective June 10, 1999. However, the changes made for evaluating the level of disability for hearing loss were not significant. Previously, levels of impairment were evaluated under Diagnostic Codes 6100-6110, with rising disability ratings given a different diagnostic code. As a result of the revision, only Diagnostic Code 6100 applies to all levels of impairment. Evaluations of defective hearing range from noncompensable to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. The Board notes that the criteria in effect both before and after the change establish eleven auditory acuity levels designated from I to XI. Whether viewing the old or new criteria, Tables VI and VII as set forth in the regulations are used to calculate the rating to be assigned. See 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110 (1998); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2002). (These tables did not change. 64 Fed. Reg. 25,202-25,210). In instances where, because of language difficulties, the Chief of the Audiology Clinic or other examiner certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c) (1998); 38 C.F.R. § 4.85(c) (2002). Under the criteria that became effective in June 1999, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2002). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2002). A review of the August 1998 VA audiometric studies, evaluated under the prior regulations, correlates to level I hearing in the right ear and level III hearing in the left ear. See 38 C.F.R. § 4.87, Table VI (1998); 38 C.F.R. § 4.85, Table VI (2002). The combination of the two ears corresponds to a noncompensable rating. See 38 C.F.R. § 4.87, Table VII, Diagnostic Code 6100 (1998). The veteran's level of hearing would be the same under the amended regulations. See 38 C.F.R. § 4.85, Table VII (2002). The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). A review of the November 2001 VA audiometric studies, evaluated under both the prior and amended regulations, correlates to level III hearing in the right ear and level VI hearing in the left ear. See 38 C.F.R. § 4.85, Table VI (1998); 38 C.F.R. § 4.85, Table VI (2002). The combination of the two ears corresponds to a 10 percent rating. See 38 C.F.R. § 4.87, Table VII, Diagnostic Code 6101 (1998); Table VII, Diagnostic Code 6100 (2002). The Board notes that the veteran does not satisfy the criteria for evaluation of exceptional patterns of hearing impairment as delineated at 38 C.F.R. § 4.86(a) and (b). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Given that the veteran's hearing loss disability is evaluated by use of the tables provided in the regulations, there is no basis for the assignment of a rating in excess of 10 percent for the veteran's bilateral hearing loss. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2001). The Board notes that 38 C.F.R. § 3.102 was amended in August 2001, effective as of November 9, 2000. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001). However, the change to 38 C.F.R. § 3.102 eliminated the reference to submitting evidence to establish a well-grounded claim and did not amend the provision as it pertains to the weighing of evidence and applying reasonable doubt. Accordingly, the amendment is not for application in this case. In reaching this decision the Board has considered the April 2000 audiogram. Taken on its face, the audiogram reflects an average decibel loss of 55 for the right ear and 73 for the left ear. Speech discrimination was reported as 72 percent for the right ear and 60 percent for the left ear. Such values, if obtained at a compensation examination, would warrant a 20 percent disability rating. However, the audiogram was done in a clinical setting to evaluate the veteran's status prior to ordering his hearing aids and to assess his level of hearing loss as part of his speech therapy. The audiogram was not done as means of measuring the veteran's level of disability for compensation purposes as were the August 1998 and November 2001 audiograms. Rather, the April 2000 audiogram represented a clinical evaluation to establish a threshold for working to improve the veteran's understanding of speech and to assess his need for hearing aids. The August 1998 and November 2001 audiograms were conducted in conjunction with a set protocol to carefully evaluate the level of disability represented by the veteran's hearing loss disability while the April 2000 audiogram was done to obtain a measure of the veteran's hearing loss prior to ordering his hearing aids and commencing his aural rehabilitation program. Finally, the major difference between the April 2000 audiogram and the November 2001 audiogram is the level of speech discrimination reported. There is a significant difference between the scores reflected in April 2000 than those in November 2001. Yet, the veteran's actual decibel loss was actually greater in November 2001. In summary, the April 2000 clinical audiogram does not appear to be as reliable a source as the November 2001 audiogram for measuring the veteran's level of hearing loss disability for compensation purposes. In deciding the hearing loss issue in this case (the other two issues were grants of the benefits sought on appeal and are not addressed here), the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), which became effective during the pendency of this appeal. VA has also issued final regulations to implement these statutory changes. See Duty to Assist, 66 Fed. Reg. 45,620-32. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Under the Act, VA has a duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). There is no outstanding information or evidence needed to substantiate a claim in this case. The veteran is claiming an increased rating for his service-connected bilateral hearing loss. His claim has been pending since 1998. He has been advised of the evidence required to warrant an increase in his disability rating. The case was remanded in August 2000 to provide for additional development of evidence to substantiate his claim. Additional evidence was obtained and the veteran's disability rating was increased to 10 percent. There is no additional information or evidence needed to complete his claim. Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002). In those cases where notice is provided to the claimant, a second notice is to be provided to advise that, if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5103(b) (West 2002). In addition, 38 C.F.R. § 3.159(b) (2002), details the procedures by which VA will carry out its duty to assist by way of providing notice. The claim has been under development and consideration since 1998. The veteran was initially denied an increased rating for his bilateral hearing loss in January 1999. The veteran expressed his disagreement with the denial and was issued a statement of the case in October 1999 that provided notice of what the veteran needed to show to warrant the assignment of an increased rating for his disability. The veteran testified at a hearing in April 2000. His case was remanded for additional development in August 2000 to include review of his claim under both sets of rating criteria for hearing loss disabilities and to allow for the veteran to submit additional evidence in support of his claim. The RO wrote to the veteran in August 2000 and advised him that he could submit any additional evidence he wanted in his case or to authorize the RO to obtain evidence on his behalf. He was also informed that the RO had requested medical records from the Fayetteville VAMC. The veteran provided a statement in October 2000 wherein he identified the VAMCs in Fayetteville and Durham as sources of treatment for his hearing loss disability. The RO wrote to the several private medical providers, identified early in this decision, to request medical records pertaining to the veteran in April 2001. The RO wrote to the veteran in April 2001 and informed him of the VCAA and VA's duty to provide notice of evidence needed to substantiate his claim and VA's duty to assist in the development of his claim. The RO advised the veteran of the several actions taken to assist in the development of his claim, to include what evidence was received and the source of the evidence. He was further advised of the April 2001 requests for records. The veteran was told that he could speed the processing of his claim if he was able to obtain any of the requested records. Further, the veteran was asked to identify any source of information or evidence that would be beneficial to his claim. A Report of Contact, dated in August 2001, indicated that the veteran reported that he had submitted all of the evidence he had to support his claim. The veteran was issued a supplemental statement of the case (SSOC) in April 2002 in regard to his bilateral hearing loss claim. His disability rating was increased to 10 percent. The SSOC provided the basis for the RO's grant of a 10 percent rating and no higher for his bilateral hearing loss. The SSOC addressed all of the evidence added to the record since the October 1999 SOC. The veteran was also provided with the statutory and regulatory provisions of the VCAA. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to justify an increased rating above 10 percent for his service-connected bilateral hearing loss. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to assist claimants under the VCAA is codified under 38 U.S.C.A. § 5103A (West 2002) and established by regulation at 38 C.F.R. § 3.159 (c)-(e) (2002). This section of the VCAA and the regulation set forth several duties for the Secretary in those cases where there is outstanding evidence to be obtained and reviewed in association with a claim for benefits. In this case multiple private treatment records were obtained and associated with the claims file. VA treatment records were also associated with the claims file. The veteran testified at two Board hearings and was afforded several VA examinations. The Board finds that every effort has been made to seek out evidence helpful to the veteran. This includes specific evidence identified by the veteran and evidence discovered during the course of processing his claim. The Board is not aware of any outstanding evidence. The veteran reported that he had no further evidence to submit in August 2001. Therefore, the Board finds that VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Thus, VA has satisfied its duties to inform and assist the veteran in this case. Further development of the claim and further expending of VA's resources are not warranted. Cf. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); Dela Cruz v. Principi, 15 Vet. App. 145, 149 (2001). ORDER Service connection for thrombophlebitis of the left leg is granted. Service connection for DJD of the thoracic spine, resulting in musculoskeletal chest wall pain, is granted. An increased evaluation for bilateral hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.