Citation Nr: 0509857	
Decision Date: 04/05/05    Archive Date: 04/15/05

DOCKET NO.  95-00 987	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a bilateral 
eye/vision disability.

2.  Propriety of the initial noncompensable evaluation for 
bilateral defective hearing, effective from October 1, 1993.

3.  Propriety of the initial evaluations for tinnitus, with a 
noncompensable evaluation effective from October 1, 1993 and 
a 10 percent evaluation effective from June 10, 1999.

4.  Propriety of the initial 10 percent evaluation for 
dermatitis with eczema, effective from October 1, 1993.

5.  Propriety of the initial 10 percent evaluation for a low 
back strain with degenerative changes at the L4-L5 level, 
effective from October 1, 1993.




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

M. L. Wright, Counsel


INTRODUCTION

The veteran had active service from May 1963 to August 1970, 
and from October 1970 to September 1993.

This appeal arises from a December 1993 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas.  In this decision, the RO granted entitlement 
to service connection for bilateral hearing loss, tinnitus, a 
skin disorder, and a low back disability.  All of these 
disabilities were initially evaluated as noncompensable 
effective from October 1, 1993, the day after the veteran's 
separation from active military service.  In addition, the RO 
denied entitlement to a bilateral eye/vision disability.

In a rating decision of July 1994, the RO granted increased 
evaluations for the skin disorder and the low back 
disability.  Each was given a 10 percent evaluation effective 
from October 1, 1993.  By rating decision of August 2001, the 
RO granted an increased evaluation to 10 percent for the 
veteran's tinnitus.  This award was made effective from June 
10, 1999, the date a change in the rating criteria for 
tinnitus became effective.

The rating decision of December 1993 also granted service 
connection for hypertension with an enlarged heart, and a 
lung disorder.  The veteran expressed his disagreement with 
the initial evaluation of these disabilities.  However, in 
his substantive appeal of March 1994, the veteran withdrew 
the issues of an increased evaluation for hypertension and 
his lung disorder.  In accordance with the veteran's wishes, 
these issues will not be reviewed for appellate 
consideration.

In December 1993, the RO denied entitlement to service 
connection for a gastrointestinal disability, bilateral knee 
disabilities, and a left elbow disability.  The 
gastrointestinal disability was granted service connection by 
rating decision of December 1994.  A left knee disability was 
granted service connection in a rating decision issued in 
December 2001.  Right knee and left elbow disabilities were 
granted service connection in the rating decision of April 
2004.  The veteran did not express any disagreement with the 
initial evaluations of these disorders.  The Board of 
Veterans' Appeals (Board) finds that these awards of service 
connection were full grants of all benefits sought on appeal 
and they are not inextricably intertwined with any issue that 
is currently on appeal.  Therefore, these matters are no 
longer in appellate status.  

In December 1993, the veteran appears to have submitted a 
claim for entitlement to service connection for a left 
shoulder disability.  This issue has yet to be adjudicated by 
an Agency of Original Jurisdiction (AOJ).  It is not properly 
before the Board at the present time and it is not 
inextricably intertwined with the issues on appeal.  
Therefore, this matter is referred to the RO for the 
appropriate action.

The issues of entitlement to service connection for a 
bilateral eye/vision disability and an increased evaluation 
for dermatitis with eczema are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Sufficient evidence required for equitable determinations 
regarding the issues decided below has been obtained.

2.  The veteran's low back strain with degenerative changes 
is characterized by symptomatic flare-up of moderate 
limitation of motion, muscle spasm, scoliosis, and minimal 
neurologic involvement. 

3.  The veteran's bilateral hearing loss is manifested in 
recent years, at its worst, by an average puretone threshold 
of 40 decibels and speech discrimination ability of 94 
percent in the right ear, and average puretone threshold of 
43 decibels and speech discrimination ability of 98 percent 
in the left ear.

4.  The veteran has recurrent tinnitus, characterized as an 
intermittent buzzing sound, which results in loss of 
concentration and minimal industrial inadaptability.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation of 20 percent, but 
not more, for chronic low back strain with degenerative 
changes have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 
5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.2, 
4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71, 4.71a, 
Diagnostic Code 5292 (effective prior to September 26, 2003), 
Diagnostic Code 5237 (effective on September 26, 2003).  See 
68 Fed.Reg. 51454-58 (August 27, 2003), 69 Fed. Reg. 32,449-
50 (June 10, 2004).

2.  The criteria for an initial evaluation of 10 percent, but 
not more, for neurologic involvement of the chronic low back 
strain with degenerative changes have been met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 
3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 
4.59, 4.71, 4.71a, 4.124a, Diagnostic Code 5237 (effective on 
September 26, 2003), and Diagnostic Code 8620 (2004).

3.  The criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. 
§§ 3.159, 3.321(b)(1), 4.85, 4.86, Code 6100 (2004).

4.  The criteria for an initial 10 percent evaluation for 
tinnitus, effective from October 1, 1993 to June 9, 1999, 
have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(a) 
(West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.87, Code 6260 
(Effective prior to June 10, 1999).

5.  An initial evaluation in excess of 10 percent disabling 
for tinnitus, effective from October 1, 1993, is not 
authorized.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(a) (West 
2002); 38 C.F.R. §§ 3.321(b)(1), 4.87, Code 6260 (Effective 
prior to, and on, June 10, 1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 
106-475, 114 Stat. 2096 (2000) introduced several fundamental 
changes into the VA adjudication process.  It eliminated the 
requirement under the old 38 U.S.C.A. § 5107(a) (West 1991) 
that a claimant must present a well-grounded claim before the 
duty to assist is invoked.

A VCAA notice letter consistent with 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b) must (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim.

VA satisfied this duty by means of a letter to the veteran 
issued in April 2003.  By means of this letter, the veteran 
was told of the requirements to establish entitlement to 
increased evaluations for his hearing loss, tinnitus, and low 
back disability.  He was advised of his and VA's respective 
duties and asked to submit information and/or evidence 
pertaining to the claim to the RO.  The Statement of the Case 
(SOC) issued in February 1994 and subsequent Supplemental 
Statements of the Case (SSOC) informed the veteran of the 
pertinent law and regulations, the evidence reviewed in 
connection with his claims, and VA's reasons and bases for 
its determinations.  

The Board notes that, during the pendency of this appeal, VA 
issued new regulations at 38 C.F.R. §§ 4.85, 4.86, and 4.87 
(to include Tables VI, VIa, and VII; and Diagnostic Code 
6260) that evaluated hearing impairment and tinnitus, 
effective on June 10, 1999.  See 64 Fed.Reg. 25206-210 (May 
11, 1999).  In the SOC of February 1994, the veteran was 
informed of the old criteria evaluating hearing impairment 
and tinnitus and the SSOC issued in September 2001 informed 
him of the new criteria.  Starting with the September 2001 
SSOC and in subsequent SSOCs, the Agency of Original 
Jurisdiction (AOJ) had the opportunity to determine the 
applicability of both the old and new rating criteria to the 
current claim.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. 
Cir. 2003); see also VAOPGPREC 7-2003 (Nov. 19, 2003).  As 
discussed in the analysis of the decision below, no 
substantive changes were made to the diagnostic criteria 
evaluating the veteran's hearing impairment.  While 
substantive changes were made to the provisions of 38 C.F.R. 
§ 4.87, Diagnostic Code 6260 that evaluated tinnitus, the 
completely favorable decision rendered below makes any issue 
of retroactivity or appropriate notice completely moot.  

In addition, VA issued new regulations at 38 C.F.R. § 4.71a 
evaluating intervertebral disc syndrome, effective September 
23, 2002.  67 Fed.Reg. 54345-49 (August 22, 2002).  Also, VA 
issued new regulations evaluating lumbosacral strain, 
intervertebral disc syndrome, and other spinal disabilities, 
effective September 26, 2003.  68 Fed.Reg. 51454-58 (August 
27, 2003); see also 69 Fed. Reg. 32,449-50 (June 10, 2004).  
The criteria for rating intervertebral disc syndrome under 
Diagnostic Code 2593 that became effective on September 23, 
2002, contained a note defining incapacitating episodes and 
chronic orthopedic and neurologic manifestations.  The 
Federal Register version setting forth the final rule 
indicates that the three notes following the version of 
Diagnostic Code 5293 that became effective on September 23, 
2002, were deleted when intervertebral disc syndrome was 
reclassified as Diagnostic Code 5243 in the criteria that 
became effective on September 26, 2003.  This was apparently 
inadvertent and has now been corrected by 69 Fed. Reg. 
32,449, 32,450 (June 10, 2004), a final correction that was 
made effective September 26, 2003.  This correction did not 
substantively change the rating criteria for intervertebral 
disc syndrome, but instead merely corrected VA's oversight in 
not publishing the notes in Volume 68 of the Federal 
Register.  In the SOC and the SSOC of September 2001, the 
veteran was notified of the old rating criteria for his low 
back disability.  He was informed of the new criteria in the 
SSOC issued in May 2004, at which time the AOJ had the 
opportunity to determine the applicability of both the old 
and new rating criteria to the current claim.  See Kuzma, 
supra. 

The last SSOC regarding the issues on appeal was sent to the 
veteran in May 2004.  In September 2004, the veteran obtained 
a VA compensation (orthopedic) examination report that was 
associated with the claims file.  This evidence was not 
considered by the AOJ in evaluating the claims on appeal.  
After a review of this examination report, the Board 
concludes that additional consideration and issuance of a 
SSOC was not required, as the evidence discussed in this 
examination report did not touch on the issues on appeal.  
Therefore, this evidence was not pertinent to the claims on 
appeal and a SSOC was not required.  See 38 C.F.R. § 19.31.

As the veteran has been informed of the requirements to 
establish entitlement to increased evaluations, his and VA's 
respective duties, asked to submit information and/or 
evidence pertaining to the claim, informed of the pertinent 
law and regulations, the evidence reviewed in connection with 
his claims, and VA's reasons and bases for its 
determinations; the Board finds that the requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) have been 
met.  

Assuming that a VCAA notice must be provided before the 
initial unfavorable AOJ decision on a claim for VA benefits, 
in this case, the initial VCAA notice was issued 
substantially after the initial adverse decision in December 
1993.  The Board finds that any defect with respect to the 
timing of the VCAA notice was harmless.  There is no 
indication that disposition of this claim would have been 
different had the veteran received pre-adjudicatory notice 
pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Assistance shall also include providing a medical examination 
or obtaining a medical opinion when such an examination or 
opinion is necessary to make a decision on the claim.  38 
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The veteran 
was afforded multiple VA compensation examinations to 
evaluate his hearing acuity, tinnitus, and low back 
disability.  These examinations provided medical histories, 
findings on examination, audiometric findings, and 
appropriate opinions on the current severity of the veteran's 
disabilities.  The January and February 2004 examiners 
specifically indicated that a review of the veteran's medical 
history in the claims file had been conducted in connection 
with these compensation examinations.  Regardless, the 
histories provided by the examiners are accurate based on a 
review of the evidence in the claims file.  Based on this 
evidence, the Board finds that the compensation examinations 
are adequate for rating purposes.  

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claims 
for the benefit sought, unless no reasonable possibility 
exists that such assistance would aid in substantiating the 
claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  
The RO made repeated requests for the veteran to identify 
evidence pertinent to his claims.  He has identified both VA, 
post-service military, and private treatment.  His VA and 
military records have been obtained, to include service 
medical records.  However, some of his private healthcare 
providers have not responded to requests from VA for copies 
of the treatment records.  He was notified of this fact by 
letter of December 2003 and was requested to provide this 
evidence.  A review of this letter finds that it is compliant 
with the provisions of 38 C.F.R. § 3.159(e).  Much of the 
evidence requested in this letter was subsequently obtained 
or contained in medical evidence from other sources.  The 
Board finds that the veteran received proper notification of 
VA's inability to receive this evidence and further attempts 
to develop it would be futile.  The veteran has been afforded 
the opportunity to request a hearing before VA, but has 
declined such a hearing.  Based on this evidence and 
analysis, the Board concludes that all pertinent evidence 
that reasonable attempts to develop would provide has been 
obtained and incorporated into the claims file.

To the extent that VA in anyway has failed to fulfill any 
duty to notify and assist the appellant, the Board finds that 
error to be harmless.  See Conway v. Principi, 353 F.3d 1369 
(Fed. Cir. 2001) (The "harmless error doctrine" is 
applicable when evaluating VA's compliance with the VCAA).  
Of course, an error is not harmless when it "reasonably 
affected the outcome of the case."  ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  As VA has obtained 
all pertinent evidence that reasonable attempts to develop 
would provide, the Board finds that the duty to assist has 
been fulfilled and any error in the duty to notify would in 
no way change the outcome of the below decisions.  In this 
regard, while perfection is an aspiration, the failure to 
achieve it in the administrative process, as elsewhere in 
life, does not, absent injury, require a repeat performance.  
Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 
1985).  

Based on the above analysis, the Board determines that no 
reasonable possibility exists that further assistance would 
aid in the substantiation of the appellant's claim.  
38 U.S.C.A. 5103A.  In addition, as the appellant has been 
provided with the opportunity to present evidence and 
arguments on his behalf and availed himself of those 
opportunities, appellate review is appropriate at this time.  
See Bernard v. Brown, 4 Vet. App. 384 (1993).


Evaluation of Low Back Disability

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155.  Separate diagnostic 
codes identify the various disabilities.  VA has a duty to 
acknowledge and consider all regulations that are potentially 
applicable through the assertions and issues raised in the 
record, and to explain the reasons and bases for its 
conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  
These regulations include, but are not limited to, 38 C.F.R. 
§§ 4.1 and 4.2 (2001).  Also, 38 C.F.R. § 4.10 provides that, 
in cases of functional impairment, evaluations must be based 
upon lack of usefulness of the affected part or systems, and 
medical examiners must furnish a full description of the 
effects of the disability upon the person's ordinary 
activity.  These requirements for evaluation of the complete 
medical history of the claimant's condition operate to 
protect claimants against adverse decisions based upon a 
single, incomplete, or inaccurate report, and to enable VA to 
make a more precise evaluation of the level of the disability 
and of any changes in the condition.  Schafrath at 594.

In addition, 38 C.F.R. § 4.40 requires consideration of 
functional disability due to pain and weakness.  As regards 
the joints, 38 C.F.R. § 4.45 notes that the factors of 
disability reside in reductions of their normal excursion of 
movements in different planes.  The considerations include 
more or less movement than normal, weakened movement, excess 
fatigability, incoordination, impaired ability to execute 
skilled movements smoothly, pain on movement, swelling, and 
deformity or atrophy of disuse.  See DeLuca at 205-07.

With any form of arthritis, painful motion is an important 
factor of the rated disability and should be carefully noted.  
The intent of the schedule is to recognize painful motion 
with joint or periarticular pathology as productive of 
disability.  It is the intention to recognize actually 
painful, unstable, or mal-aligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  Crepitation either in the soft tissues 
such as the tendons or ligaments, or crepitation within the 
joint structures should be noted carefully as points of 
contact which are diseased.  38 C.F.R. § 4.59.

The evaluation of the same disability or manifestations under 
different diagnoses is to be avoided.  38 C.F.R. § 4.14.  
Rather, the veteran's disability will be rated under the 
diagnostic code that allows the highest possible evaluation 
for the clinical findings shown on objective examination.  
However, 38 C.F.R. § 4.14 does not prevent separate 
evaluations for the same anatomic area under different 
diagnostic codes that evaluate different functional 
impairments.  See Esteban v. Brown, 6 Vet. App. 259 (1994).  

The veteran's claim for a higher evaluation is an original 
claim that was placed in appellate status by a notice of 
disagreement (NOD) expressing disagreement with an initial 
rating award.  As such, separate ratings may be assigned for 
separate periods of time based on the facts found-a practice 
known as "staged" ratings.  See Fenderson v. West, 12 Vet. 
App. 119 (1999).  

In his substantive appeal of March 1994, the veteran has 
claimed that his low back disability causes pain with 
prolonged standing, pain with motion of the back, and general 
soreness and stiffness.  In written contentions of May 2002, 
the veteran noted that his low back pain continued despite 
physical exercise and prescription medication.  He reported 
that the VIOXX prescribed by his private physician helped 
with his back pain.  The veteran noted that he had a part-
time job one day a week that required standing on his feet 
for eight hours, which resulted in increased pain, muscle 
spasm, and stiffness.  He affirmed that these symptoms only 
happened when he had been standing for a prolonged period of 
time and acknowledged that he did not have muscle spasm on 
forward bending.  In July 2003, the veteran claimed that he 
could no longer drive long distances without stops in order 
to alleviate the back symptoms he developed from sitting for 
so long.

The service medical records note treatment of the veteran's 
low back complaints as early as the 1970's.  During the year 
prior to his separation from the military, outpatient records 
noted two episodes of acute symptomatology in April and 
August 1993.  The onset of these symptoms was attributed to 
heavy lifting and other types of physical work.  In April 
1993, examination revealed the presence of muscle spasm in 
the lumbar region and numbness and tingling in the lower 
extremities.  The veteran's separation examination of July 
1993 noted the veteran's reported medical history of lumbar 
scoliosis with pain and sciatica.  On examination, his spine 
and musculoskeletal system were reported to be normal.

A VA general medical examination of April 1994 found 
tenderness in the lumbosacral spine.  There was full range of 
motion, but pain was present at the outer limits of motion.  
His neurologic examination was reported to be grossly intact.  
The diagnoses included a low back condition.

VA orthopedic examination in August 1996 reported the 
veteran's complaints of constant low back pain with long 
sitting causing paresthesia.  On examination, there were no 
postural or fixed deformities.  There was no muscle spasm, 
but tenderness was present over the right sacral area.  Range 
of motion was forward flexion to 75 degrees, backward flexion 
to 15 degrees, lateral flexion to the left was 30 degrees and 
to the right was 25 degrees, and rotation to the left and 
right was 30 degrees.  The examiner did not identify any 
neurologic involvement.  The diagnosis was degenerative disc 
disease at the L4-L5 level.

A VA orthopedic examination of April 2003 noted the veteran's 
low back complaints included pain, stiffness, weakness, 
fatigue, lack of endurance, and locking.  On a scale from one 
(no pain) to 10 (exquisite pain), the veteran rated his low 
back pain at a level of 3.  He reported that this pain was 
constant.  To treat these symptoms, the veteran asserted that 
he took pain and muscle relaxer medication.  The veteran 
denied any other symptoms associated with his low back.  The 
veteran denied using ambulatory assistance devices, 
unsteadiness, or surgery for his low back problem.  He 
claimed that his low back disability prevented him from doing 
any heavy lifting at work and caused difficulty with yard 
work at home.  However, the veteran denied that his low back 
disability had resulted in any incapacitating episodes in the 
past 12 months that had resulted in him missing work.

On examination, the spine was in a straight line with no 
evidence of muscle atrophy, rigidity, spasm, or wasting.  
There was mild tenderness with palpation of the lumbar area.  
He was able to squat and walk on his toes and heels.  Range 
of motion testing revealed right and left lateral bending 
from 0 to 50 degrees, forward flexion from 0 to 70 degrees, 
and backward extension from 0 to 15 degrees.  The examiner 
determined that pain, fatigue, incoordination, weakness, or 
lack of endurance would not cause any additional limitation 
of motion.  Neurologic examination revealed that his sensory 
perception was normal.  Deep tendon reflexes were present.  
The diagnoses included chronic lumbar strain, retroscoliosis, 
and degenerative joint disease.

During a VA orthopedic examination in February 2004, the 
veteran complained of increased pain in his low back that 
radiated down his leg.  He also complained of weakness, 
numbness, and tingling in his left lower extremity.  The 
veteran also reported trouble using stairs, putting on pants, 
and driving for more than two hours.  The veteran claimed 
that this increase in symptomatology occurred 6 to 12 months 
ago.  These symptoms occur after a day of work (once a week) 
at a home improvement store where he has to stand on his feet 
for several hours.  These symptoms were usually alleviated 
after a few days with rest, sitting, and medication.  He 
denied having any loss of work from these symptoms.  The 
examiner noted that these symptoms had no significant effect 
on the veteran's mobility or occupation.

On examination, there was some scoliosis associated with the 
spine, but the lordotic curve was normal.  His posture and 
gait were within normal limits.  The veteran could walk on 
his toes and heels, and he could squat.  Range of motion was 
forward flexion from 0 to 90 degrees with minimal pain, 
backward extension from 0 to 30 degrees with pain beginning 
at 30 degrees, right and left lateral flexion from 0 to 30 
degrees with pain beginning at 30 degrees, and pain free 
right and left lateral rotation from 0 to 45 degrees.  It was 
noted by the examiner that there was no objective evidence of 
pain on motion, merely the veteran's report of pain.  Muscle 
strength was 5 on a scale from 1 (very weak) to 5 (normal).  
There was no evidence of muscle atrophy, muscle spasm, 
guarding, or postural/fixed deformity.  Neurologic 
examination noted sensation was intact, except for loss of 
sensation in a small area around the left big toe.  While 
other reflexes were present, ankle jerks were absent.  When 
queried whether there were any neurologic symptoms due to 
nerve root involvement, the examiner responded "none" on 
his report.  The diagnoses were degenerative joint disease 
with chronic pain, left L5 radiculopathy, and severe 
retroscoliosis.  

Radiological studies of the lumbosacral spine conducted in 
April 1994, August 1996, and April 2003 have revealed severe 
retroscoliosis, degenerative disc disease, narrowing the disc 
spaces, Schmorl's nodes, and hypertrophic spurring.

The veteran's low back strain with degenerative changes at 
the L4-L5 level is currently rated 10 percent disabling 
effective from October 1, 1993.  This disorder was evaluated 
under VA's Schedule for Rating Disabilities, 38 C.F.R. 
§ 4.71a, Diagnostic Codes (Codes) 5295 (old criteria) and 
5237 (new criteria).  As discussed above, the regulations 
evaluating the veteran's low back disability were changed 
during the pendency of this appeal.  According to VAOPGCPREC 
7-2003 (Nov. 19, 2003), when a new statute is enacted or a 
new regulation is issued while a claim is pending before VA, 
VA must first determine whether the statute or regulation 
identifies the types of claims to which it applies.  If the 
statute or regulation is silent, VA must determine whether 
applying the new provision to claims that were pending when 
it took effect would produce genuinely retroactive effects.  
If applying the new provision would produce such retroactive 
effects, VA ordinarily should not apply the new provision to 
the claim.  If applying the new provision would not produce 
retroactive effects, VA ordinarily must apply the new 
provision.  Statutes and regulations are presumed not to 
apply in any manner that would produce genuinely retroactive 
effects, unless the statute or regulation itself provides for 
such retroactivity.  See Landgraf v. USI Film Products, 511 
U.S. 244 (1994); Regions Hospital v. Shalala, 522 U.S. 448 
(1998); Kuzma, supra.

According to the General Rating Formula for Diseases and 
Injuries of the Spine, normal range of motion of the 
thoracolumbar spine is 0 to 90 degrees forward flexion, 0 to 
30 degrees backward extension, 0 to 30 degrees lateral 
flexion, and 0 to 30 degrees lateral rotation.  38 C.F.R. 
§ 4.71a, Diagnostic Codes 5235-43 (Effective on September 26, 
2003).

The veteran has repeatedly complained that his VA 
examinations do not accurately reflect the symptomatology 
associated with his low back during periods of flare-up.  
These periods usually appeared early in the week after the 
veteran had worked at his part-time job with a home 
improvement store that required periods of prolonged 
standing.  The Board notes that military outpatient records 
in 1993, the veteran's last year of military service, appear 
to report symptoms during exacerbation due to strenuous 
exertion or heavy lifting.  These symptoms include objective 
demonstration of muscle spasm.  The record is replete with 
findings of scoliosis associated with the lumbar spine and 
objective demonstration of tenderness in the low back.

Based on this evidence, the Board finds that the veteran's 
low back disability warrants an evaluation of 20 percent 
under the new criteria at Code 5237 (lumbosacral or cervical 
strain).  However, these rating criteria may not have 
retroactive effect past the effective date of the change on 
September 26, 2003.  Regardless, the Board finds that there 
is sufficient medical evidence to warrant a 20 percent 
evaluation prior to September 26, 2003 under the criteria at 
Code 5292.  These criteria authorize a 20 percent evaluation 
for "moderate" limitation of motion in the lumbar spine.  
Unlike the revised criteria, Code 5292 failed to provide any 
definition of what would be a "moderate" limitation, as 
measured in degrees of motion.  The Board finds that the 
range of motion noted in August 1996 and April 2003 showed 
slight to moderate loss of range of motion in the lumbar 
spine.  This overall range of motion, inconsideration with 
the provisions of 38 C.F.R. § 4.40, 4.45 and resolving any 
reasonable doubt in the veteran's favor, would in the Board's 
opinion be characterized as an overall moderate limitation 
under the old criteria at Code 5292.  See 38 C.F.R. § 4.3.  
Based on this analysis, the Board finds that the veteran is 
entitled to an increased evaluation to 20 percent disabling 
for his lumbosacral strain with degenerative changes under 
the old criteria at Code 5292 and the new criteria at Code 
5237.

Under Note (2) at new Code 5293 and Note (1) at new Codes 
5235-42, the Board must determine if separate evaluations 
under the orthopedic and neurologic diagnostic criteria are 
appropriate.  The only neurological symptoms noted by the 
veteran regarding his low back were radiating pain, tingling, 
and numbness in his lower extremities.  As noted above, the 
veteran has received a diagnosis for radiculopathy in 
February 2004.  This was objectively demonstrated by minimal 
symptoms of loss of sensation on a big toe and absent ankle 
jerks.  All prior examinations found no objective neurologic 
symptoms associated with the low back disability.  Thus, the 
medical evidence only shows subjective complaints prior to 
February 2004.  Those demonstrated in February 2004, appear 
to be minimal in degree.  Under 38 C.F.R. § 4.12a, Diagnostic 
Codes 8620/8720 (neuralgia/neuropathy), evaluating sciatic 
nerve dysfunction, a 10 percent evaluation is warranted for 
mild neurologic deficit and a 30 percent is warranted for a 
moderate degree of neurologic deficit.  See also 38 C.F.R. 
§§ 4.123, 4.124.  As there is minimal evidence of neurologic 
involvement of the veteran's low back disability from 
February 4, 2004, the veteran is entitled to a 10 percent 
evaluation from this date under Codes 8620/8720.  However, as 
the objective neurologic deficit appears minimal in nature, 
the criteria at Codes 8620/8720 do not support a higher 
evaluation for moderate symptomatology.  The Board also 
concludes that as the medical evidence does not show 
objective neurologic involvement of the low back disability 
prior to the February 4, 2004 examination, a 10 percent 
evaluation is not warranted past this date.  See 38 C.F.R. 
§ 3.400(o)(1),(2).

The Board finds that in regard to evaluations in excess of 20 
percent orthopedic and 10 percent neurologic ratings granted 
above, whether or not the new orthopedic rating criteria has 
retroactive effect is irrelevant.  As discussed below, the 
medical evidence does not provide any basis for the award of 
higher evaluations under either the old or new rating 
criteria at any time during the appeal period. 

The veteran has complained of pain radiating into his lower 
extremities accompanied with feelings of numbness and 
tingling.  In February 2004, the VA examiner noted a 
diagnosis of left L5 radiculopathy.  Radiological studies of 
the lumbosacral spine have found evidence of degenerative 
disc disease and narrowing the interspaces.  This evidence 
raises the issue of rating the veteran's low back disability 
by analogy under the new criteria at Code 5243 
(intervertebral disc syndrome) for incapacitating episodes.  
See 38 C.F.R. § 4.20.  Note (1) at new Codes 5293 and 5243 
define incapacitating episodes as a period of acute symptoms 
that requires "prescribed bedrest by a physician and 
treatment by a physician."  The treatment records are silent 
as to any physician prescribing bed rest for the veteran's 
low back complaints.  In addition, the veteran has denied 
having any episodes that required bed rest or forced him to 
miss work.  Thus, while the veteran may have episodic flare-
up of his low back symptomatology, these episodes do not rise 
to the level of an incapacitating attack as defined under the 
new criteria at Codes 5293 and 5243.

The old criteria at Code 5293 required severe recurring 
attacks of intervertebral disc syndrome that had intermittent 
relief in order to receive a 40 percent evaluation.  The 
veteran has claimed to have weekly exacerbation of his low 
back symptomatology after working his part-time job on 
Sundays.  He has acknowledged that these symptoms are 
alleviated early the following week.  The veteran has denied 
ever requiring bed rest or loss of work due to these 
symptoms.  The medical evidence does not support a finding of 
severe attacks of intervertebral disc disease.  The reports 
have consistently shown no objective demonstration of muscle 
spasm in recent years, only slight to moderate limitation of 
motion, and only minimal neurologic involvement.  The 
veteran's lay evidence establishes that if he avoids 
strenuous activity or prolonged standing and driving, he does 
not suffer exacerbation of his low back disorder.  Based on 
this evidence, the Board finds that the symptoms of the low 
back disability cannot be characterized as severe in nature.  
Therefore, a higher evaluation under the old criteria at Code 
5293 is not warranted.

Turning to the orthopedic manifestations of the veteran's 
lumbar spine disability, there is no indication in the 
medical evidence that the veteran has any orthopedic 
limitation associated with his legs that is due to his low 
back disability.  He currently is service connected for 
bilateral knee disabilities not associated with the low back 
disorder.  He has not contended that he has any type of lower 
extremity orthopedic disability that has resulted from his 
low back disorder.  There is no medical opinion of record 
that has linked any orthopedic problem of the lower 
extremities to the low back strain.  Therefore, separate 
evaluations for orthopedic disabilities of the lower 
extremities are not warranted.

The only functional limitation found on examinations 
associated with the low back disability was with the function 
of the lumbar spine.  As noted above, this level of 
functional impairment warrants a 20 percent evaluation under 
old Code 5292 and new Code 5237.  As an evaluation higher 
than 20 percent disabling is not authorized under Codes 5010 
(5003) (traumatic/degenerative arthritis), this criteria is 
not applicable.  As there is no medical or radiological 
evidence of fractured vertebra, ankylosis, or fixation of the 
lumbar spine, evaluation under the old criteria at Codes 5285 
(vertebra fracture), 5286 (complete spinal ankylosis), and 
5289 (lumbar spine ankylosis) is not warranted.

For a higher evaluation of 40 percent under the old criteria 
at Code 5292 (lumbosacral strain), the evidence must show a 
severe lumbosacral strain with listing of the whole spine to 
the other side, positive Goldwaite's sign, marked limitation 
of forward bending in the standing position, loss of lateral 
motion with osteo-arthritic changes, or 
narrowing/irregularity of joint spaces; or some of the above 
with abnormal mobility on forced motion.  The medical 
evidence does corroborate the existence of some loss of 
motion, degenerative changes and narrowing in the lumbar 
spine, and scoliosis.  However, there is no objective 
evidence since discharge of listing of the whole spine, 
positive Goldwaite's sign, or loss of lateral motion.  As 
noted above, the veteran's loss of motion in the lumbar spine 
would only be characterized as slight to moderate.  Based on 
the examination reports showing that the veteran continued to 
have significant functional ability in the lumbar spine, the 
Board finds that his lumbosacral strain cannot be 
characterized as severe in nature.  Thus, an increased 
evaluation is not warranted under the old criteria at Code 
5295.

Turning to the new criteria at Codes 5235 through 5242, the 
General Rating Formula for Diseases and Injuries of the Spine 
authorizes an increased evaluation of 40 percent in the 
lumbar spine for forward flexion of the thoracolumbar spine 
30 degrees or less, or favorable ankylosis of the entire 
thoracolumbar spine.  As noted above, there is no evidence of 
ankylosis or fixation associated with the veteran's lumbar 
spine.  The examinations since 1993 have revealed that the 
veteran had significantly better forward flexion then 30 
degrees.  There is no medical opinion of record that 
symptomatic flare-up would result in limitation of motion of 
30 degrees or less.  See 38 C.F.R. §§ 4.40, 4.45; see also 
DeLuca, supra.  Based on this medical evidence and opinion, 
the Board finds that a higher evaluation is not authorized 
under the new criteria at Codes 5235-42.  

Based on the above analysis, the evidence supports a higher 
evaluation for the veteran's low back disability to 20 
percent disabling.  That is, a 20 percent evaluation is 
authorized under the old criteria at Code 5292 (effective 
prior to September 26, 2003) for moderate limitation in 
lumbar spine motion, and under the new criteria at Code 5237 
(effective on September 26, 2003) for an abnormal spine 
contour.  In addition, the criteria at Code 5237 authorize a 
separate evaluation for the minimal radicular symptoms under 
Codes 8260/8270 effective from February 4, 2004.  




Evaluation of Bilateral Hearing Loss/Tinnitus

The veteran has claimed that his tinnitus is sometimes 
disruptive and can interfere with his concentration.  He also 
has alleged that his tinnitus and hearing loss interfere with 
his ability to effectively talk and understand others on the 
telephone, an ability required in his current occupation.  He 
reported problems with longer call times at work and was 
afraid if he told his employer about his tinnitus and hearing 
loss difficulty, he would be fired.  The veteran noted that 
he had trouble hearing in crowds or when there is background 
noise.

The veteran underwent a VA ear/audiological evaluation in 
April 1994.  Audiometric testing revealed the following 
puretone thresholds in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
20
20
40
45
LEFT
15
20
35
45

The average puretone threshold in the right ear for the 
frequencies 1000, 2000, 3000, and 4000 Hertz was 31 decibels.  
In the left ear, the average was 28 decibels.  Using the 
Maryland CNC word list, speech recognition in the right ear 
was 96 percent and in the left ear was 94 percent.  It was 
reported that the veteran had to wear hearing aids since 
1988.  Recurring tinnitus was present.  The assessment was 
moderately severe hearing loss in the right ear and mild to 
severe hearing loss in the left.  His speech discrimination 
was found to be excellent.

The veteran underwent a VA ear/audiological evaluation in 
July 1996.  Audiometric test results:

HERTZ
1000
2000
3000
4000
RIGHT
15
20
40
50
LEFT
15
20
35
50

The average puretone threshold in the right ear for the 
frequencies 1000, 2000, 3000, and 4000 Hertz was 31 decibels.  
In the left ear, the average was 30 decibels.  Using the 
Maryland CNC word list, speech recognition in the right ear 
was 98 percent and in the left ear was 96 percent.  The 
veteran reported that he experienced intermittent tinnitus.  
The assessment was mild to moderately severe hearing loss 
with excellent speech discrimination.  

VA audiological consultation in October 1999 noted the 
following audiometric testing revealed the following puretone 
thresholds in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
20
25
40
40
LEFT
20
30
40
50

Speech recognition ability was found to be good in a quiet 
environment.  The veteran reported that he experienced 
intermittent tinnitus.  The assessment was mild to moderate 
sensorineural hearing loss.  The examiner expected that the 
veteran's hearing loss would make it difficult to understand 
speech in the presence of background noise.

The veteran was afforded a VA ear/audiological examination in 
April 2003.  He complained of difficulty hearing when there 
is background noise, such as social gatherings and during 
meetings.  Audiometric testing revealed the following 
puretone thresholds in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
30
40
45
45
LEFT
25
35
50
60

The average puretone threshold in the right ear for the 
frequencies 1000, 2000, 3000, and 4000 Hertz was 40 decibels.  
In the left ear, the average was 43 decibels.  Using the 
Maryland CNC word list, speech recognition in the right ear 
was 94 percent and in the left ear was 98 percent.  The 
veteran reported intermittent tinnitus ("buzzing sound").  
The assessment was mild to moderately severe sensorineural 
hearing loss with excellent speech recognition ability.

The veteran was given a VA ear/audiological examination in 
April 2004.  He reported difficulty hearing his spouse, 
television, and during meetings and gatherings of groups of 
people.  Audiometric testing revealed the following puretone 
thresholds in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
25
30
45
50
LEFT
20
35
45
55

The average puretone threshold in the right ear for the 
frequencies 1000, 2000, 3000, and 4000 Hertz was 38 decibels.  
In the left ear, the average was 39 decibels.  Using the 
Maryland CNC word list, speech recognition in the right ear 
was 94 percent and in the left ear was 96 percent.  The 
veteran reported intermittent tinnitus ("buzzing sound") 
that was moderately bothersome.  The assessment was mild to 
moderately severe sensorineural hearing loss with excellent 
speech recognition ability.

The evaluation of hearing impairment is based on examinations 
using controlled speech discrimination tests together with 
results of puretone audiometry.  38 C.F.R. § 4.85.  The 
results are charted on Tables VI, VIa, and VII.  Thus, in 
order to assign an increased evaluation for hearing loss, the 
veteran must demonstrate a decrease in percentage of speech 
discrimination and/or an increase in average puretone decibel 
loss.  

The veteran's current bilateral hearing loss is evaluated 
under VA's Schedule for Rating Disabilities, 38 C.F.R. 
§ 4.85, Diagnostic Code (Code) 6100 as noncompensable 
effective from October 1, 1993.  As discussed above, the 
regulations evaluating the veteran's bilateral hearing loss 
were changed during the pendency of this appeal.  See 
VAOPGCPREC 7-2003; Kuzma, supra.

A review of both the old and new criteria regarding the 
evaluation of hearing impairment (as opposed to exceptional 
patterns of hearing impairment) at 38 C.F.R. § 4.85, Tables 
VI and VII, reveals that no substantive changes were made 
between the old and new diagnostic criteria.  That is, the 
retroactive effects of these criteria are irrelevant.  
However, substantive changes were made when comparing the old 
38 C.F.R. § 4.85(c) and the new criteria at 38 C.F.R. § 4.86, 
in connection with the criteria at Table VIa for exceptional 
patterns of hearing impairment.  However, both the old and 
new criteria are not applicable to the current case and have 
no bearing on its adjudication.  As a Chief of a VA Audiology 
Clinic has not certified that use of the criteria under Table 
VI and VII would be inappropriate, and no audiometric 
examination has shown puretone threshold at each of the four 
specified frequencies is 55 decibels or more, or that the 
puretone thresholds are 30 or less at 1000 Hertz and 70 
decibels or more at 2000 Hertz; the criteria at 38 C.F.R. 
§ 4.85(c), 4.86, and Table VIa is not for application.  

Initially, the Board notes that the veteran received an 
audiology outpatient examination in October 1999 that noted 
audiometric test results.  However, this examination failed 
to provide the numeric scores for speech recognition under 
the Maryland CNC word list.  Since the rating criteria at 
38 C.F.R. § 4.85 requires such scores in order to evaluate 
hearing loss, the October 1999 test results are not adequate 
for rating purposes.

Evaluating the test scores noted in April 1994 (using Table 
VI, 38 C.F.R. § 4.85) the veteran's right ear hearing acuity 
is at Level I and his left ear is at Level I.  This level of 
hearing loss, as reflected at Table VII of 38 C.F.R. § 4.85, 
warrants a noncompensable evaluation.  The test scores noted 
in July 1996, April 2003, and April 2004 indicate that the 
veteran's hearing acuity in both ears are at Level I.  This 
level of hearing loss, as reflected at Table VII of 38 C.F.R. 
§ 4.85, does not meet the criteria for a compensable 
evaluation.  

This evidence establishes that the veteran is not entitled to 
compensable evaluation for bilateral hearing loss at any time 
during the appeal period.  Based on this analysis, the rating 
criteria at 38 C.F.R. § 4.85 do not authorize an evaluation 
for the veteran's bilateral hearing loss in excess his 
current rating.  In evaluating this claim, the Board is 
constrained by a mechanical application of the facts in this 
case to the applicable law and regulations.  See Lendenmann 
v. Principi, 3 Vet. App. 345, 349 (1992) (Assignment of 
disability ratings for hearing impairment are derived by a 
mechanical application of the rating schedule to the numeric 
designations assigned after audiometric evaluations are 
rendered.)  

Turning to the evaluation of the veteran's tinnitus, as noted 
above, VA issued new regulations for evaluating diseases of 
the ears and other sense organs, during the pendency of this 
appeal.  The criteria at 38 C.F.R. § 4.87, Diagnostic Code 
6260 effective prior to June 10, 1999, allows a 10 percent 
evaluation for persistent tinnitus as a symptom of a head 
injury, concussion, or acoustic trauma.  The veteran has also 
alleged in-service acoustic trauma.  Resolving all doubt on 
this issue in the veteran's favor, the Board will find that 
he was exposed to such trauma during military service.  See 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

While the veteran has reported intermittent tinnitus, he has 
noted that this noise is bothersome and interferes with his 
concentration.  This would obviously impact his industrial 
adaptability.  The Board finds that a 10 percent evaluation 
under the old criteria at Code 6260 more nearly approximates 
the disability picture associated with the level of 
industrial inadaptability experienced by the veteran than the 
current noncompensable evaluation.  Based on this analysis, 
the Board finds that the veteran should be awarded a 10 
percent evaluation under Code 6260 for his bothersome 
tinnitus, effective from October 1, 1993.  See 38 C.F.R. 
§ 3.400(o)(1),(2).  

As a 10 percent evaluation is the highest rating authorized 
for tinnitus under either the old or new criteria at Code 
6260, the retroactive effects of any changes to these 
criteria are irrelevant.  Finally, a higher evaluation under 
the schedular criteria must be denied as a matter of law and 
regulation as a 10 percent evaluation is the highest 
authorized under Code 6260.  See 38 U.S.C.A. § 7104(c); 
38 C.F.R. § 20.101(a); see also Sabonis v. Brown, 6 Vet. App. 
426, 429-30 (1994).




Extra-schedular Evaluation

The veteran has, in effect, claimed that his bilateral 
hearing loss, tinnitus, and low back disabilities should be 
entitled to extra-schedular evaluations.  According to 
38 C.F.R. § 3.321(b)(1), in exceptional cases where the 
schedular evaluations are found to be inadequate, the Under 
Secretary for Benefits or the Director, Compensation and 
Pension Service, upon field station submission, is authorized 
to approve on the basis of the criteria set forth in this 
paragraph an extra-schedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities.  The governing 
norm in these exceptional cases is: A finding that the case 
presents such an exceptional or unusual disability picture 
with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards.

There is no lay or medical evidence that the veteran's 
bilateral hearing loss, tinnitus, or low back disability has 
resulted in frequent periods of hospitalization in recent 
years.  The veteran has not presented any evidence of the 
loss of work or the need for accommodation in order to keep 
employment.  While the veteran's bilateral hearing loss, 
tinnitus, and low back disability may have resulted in some 
interference with his industrial ability; there is little lay 
or medical evidence that this level of disability is not 
fully contemplated by the rating schedule.  The record is 
clear that the veteran has continued to maintain his 
employment and adapt to his work environment.  Thus, the 
Board finds that the bilateral hearing loss, tinnitus, and 
low back disability do not present such exceptional or 
unusual disability pictures that it would render the 
application of the schedular criteria impractical.  


Conclusion

Based on the above analysis, the evidence supports a higher 
evaluation for the veteran's low back disability to 20 
percent disabling.  That is, a 20 percent evaluation is 
authorized under the old criteria at Code 5292 (effective 
prior to September 26, 2003) for moderate limitation of 
motion in the lumbar spine, and under the new criteria at 
Code 5237 (effective on September 26, 2003) for episodes of 
symptomatic loss of motion, muscle spasm, and scoliosis.  In 
addition, the criteria at Code 5237 authorize a separate 
evaluation of 10 percent for the minimal radicular symptoms 
under Codes 8260/8270 effective from February 4, 2004.  The 
preponderance of the medical evidence is against higher 
evaluations for the veteran's low back disability.  The 
evidence supports the grant of a 10 percent evaluation for 
tinnitus, effective from October 1, 1993.  However, the 
preponderance of the most probative evidence is against 
higher evaluations for the veteran's bilateral hearing loss 
and tinnitus.  While the appellant is competent to report 
symptoms, a preponderance of the medical findings does not 
support higher evaluations.  The Board finds that the 
examination reports prepared by competent professionals, 
skilled in the evaluation of disabilities, are more probative 
of the degree of impairment, diagnosis, and etiology of a 
disability, than the lay statements.  See Cartright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) (Holding that interest 
in the outcome of a proceeding may affect the credibility of 
testimony.)  To this extent, the preponderance of the 
evidence is against higher evaluations and the doctrine of 
reasonable doubt is not for application.  See 38 U.S.C.A. 
§ 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial evaluation of 20 percent disabling, but not more, 
(under 38 C.F.R. § 4.71a, Diagnostic Code 5292 effective 
prior to September 26, 2003, and under 38 C.F.R. § 4.71a, 
Diagnostic Code 5237 effective on September 26, 2003) for a 
low back strain with degenerative changes at the L4-L5 level 
is granted, subject to the laws and regulations governing the 
payment of VA benefits.

An initial evaluation of 10 percent disabling, but not more, 
(under 38 C.F.R. § 4.124a, Diagnostic Code 8260) effective 
from February 4, 2004 for minimal neurologic involvement of 
the service-connected for a low back strain with degenerative 
changes at the L4-L5 level is granted, subject to the laws 
and regulations governing the payment of VA benefits.

Entitlement to an initial compensable evaluation for 
bilateral hearing loss is denied.

Entitlement to an initial 10 percent evaluation for tinnitus, 
effective from October 1, 1993, is granted, subject to the 
laws and regulations governing the payment of VA benefits.

Entitlement to an initial evaluation in excess of 10 percent 
for tinnitus is denied.


REMAND

The RO has consistently denied entitlement to service 
connection for the veteran's eye/vision disability on the 
basis that his current disability is due to congenital or 
developmental origin.  The veteran has claimed that his 
current eye/vision disability was incurred during military 
service or, in the alterative, in-service eye injuries 
aggravated any current disability beyond the natural 
progression of the disease.

A review of the claims file indicates that his eye problems 
have been variously diagnosed as myopic astigmatism, 
peripheral pigment degeneration, presbyopia, and heavy paving 
stone degeneration.  The service medical records indicate 
that the veteran received eye injuries in October 1966 when 
he was punched in the eye by another sailor and in October 
1967 when a "foreign object" was found in his eye.  The 
veteran also claims that he received another eye injury in 
the early 1970's while on active service.  In VAOPGCPREC 82-
90, VA General Counsel held that the provisions of 38 C.F.R. 
§ 3.303(c) (prohibiting service connection for 
congenital/developmental conditions) did not bar the grant of 
service connection for diseases (as opposed to defects) of 
congenital, developmental, or familial origin that had been 
incurred or aggravated during active military service.  See 
Monroe v. Brown, 4 Vet. App. 513 (1993).

The veteran's eye disability has only been evaluated by a VA 
general medical examination in April 1994.  This examiner 
failed to provide any opinion on the nature or etiology of 
the current eye problems.  In addition, this examiner did not 
determine if the eye disability had been aggravated by the 
events of the veteran's military service.  

Based on the applicable regulations to include the VA General 
Counsel opinion, the Board finds that additional medical 
opinion must be sought to resolve whether the veteran suffers 
with an eye disability that is a congenital/developmental 
defect or disease, and whether such a disease was incurred or 
aggravated by his active military service.  See 38 U.S.C.A. 
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004); see 
also Myers v. Brown, 5 Vet. App. 3, 4-5 (1993); Duenas v. 
Principi, No. 03-1251 (U.S. Vet. App. Dec. 15, 2004) (When 
there is evidence of a medical disorder or injury during 
military service, VA's duty to assist requires that a medical 
examination and opinion be obtained that discusses the 
relationship between the veteran's in-service and current 
conditions.); Colvin v. Derwinski, 1 Vet. App. 171, 175 
(1991) (VA adjudicators cannot base their decisions on their 
own unsubstantiated medical opinions.)  

Finally, the Board notes that during the pendency of this 
appeal VA issued new regulations at 38 C.F.R. § 4.118, 
Diagnostic Codes 7800-33 that evaluated skin disorders.  See 
64 Fed.Reg. 25206-210 (May 11, 1999).  A review of these new 
regulations reveals that the criteria evaluating dermatitis 
and eczema at Code 7806 was substantially changed.  The 
veteran has yet to be notified of these changes.  Based on 
the RO's lack of adequate reasons and bases in the applicable 
SSOC's issued after May 1999, the Board cannot determine if 
the AOJ has evaluated the veteran's skin disability under 
this new criteria.  On remand, the AOJ should evaluate the 
veteran's service-connected dermatitis with eczema under both 
the old and new criteria in accordance with the holdings in 
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) and 
VAOPGPREC 7-2003 (Nov. 19, 2003).  Then it should issue the 
veteran and his representative a SSOC that informs them of 
this new criteria and the AOJ's reasons and bases for its 
decision.

Therefore, in order to ensure that the record is fully 
developed, this case is REMANDED to the AMC for the 
following:

1.  Contact the veteran and request that 
he specifically identify all healthcare 
providers that have treated his eye and 
skin disabilities since February 2004.  
Thereafter, all pertinent records should 
be requested from the identified sources.  
He should be requested to provide the 
appropriate signed release forms so that 
these records can be obtained from any 
private source.  If such release forms 
are provided, then the VA should directly 
request these records from the private 
facility.  All responses and/or evidence 
received should be associated with the 
claims file.

2.  After the above development has been 
completed and all evidence received 
associated with the claims file, the 
veteran should be scheduled for a VA 
ophthalmology examination to provide an 
opinion on the nature and etiology of his 
eye/vision disability.  Send the claims 
folder to the examiner for review.  
Please provide the examiner with the 
following instructions:
The examiner is asked to indicate that he 
or she has reviewed the claims folder.  
All necessary tests should be conducted 
and the examiner should review the 
results of any testing prior to 
completion of the report.  The examiner 
must provide a comprehensive report 
including complete rationales for all 
conclusions reached.  
The veteran has claimed that he developed 
an eye/vision disability during his 
military service.  In the alternative, he 
claims that any congenital/developmental 
eye disorder was aggravated beyond its 
natural progression by eye injuries he 
received during active service.  VA has 
consistently denied this claim on the 
grounds that all current eye/vision 
abnormalities were 
congenital/developmental in origin.  
After a review of the medical evidence in 
the claims file, the examiner should 
answer the following questions:

Does the veteran currently suffer 
with any eye or vision disabilities?  
Please provide the appropriate 
diagnoses.  Please identify if any 
of these disabilities is congenital 
or developmental in origin.  If so, 
please determine whether any 
congenital/developmental abnormality 
is simply a physical defect or due 
to an actual disease process.  In 
this regard, please provide your 
rationale for resolving this 
conflict on diagnoses and 
etiologies.  

If any eye or vision disability is 
not congenital/developmental in 
origin, or even if such is the case 
but the abnormality arose from a 
disease (as opposed to a physical 
defect), is it at least as likely as 
not that any current eye/vision 
disability had its onset during 
active service or is related to any 
in-service disease or injury?  Has 
any eye or vision disability been 
aggravated by military service (to 
include in-service eye injuries) 
beyond the natural progression of 
the pre-existing or 
congenital/developmental disease's 
natural progression?  Please provide 
a rationale for your opinion(s).

3.  If the veteran fails to report for 
his compensation examination, then 
documentation should be obtained and 
associated with the claims file that 
shows that notice scheduling the 
examination was sent to his last known 
address. 

4.  Thereafter, review the claims file to 
ensure that all of the foregoing 
requested development has been completed.  
In particular, review the requested 
examination report and required medical 
opinions to ensure that they are 
responsive to and in complete compliance 
with the directives of this remand and if 
they are not, then implement corrective 
procedures.  

5.  Finally, readjudicate the veteran's 
claims on appeal with application of all 
appropriate laws and regulations and 
consideration of any additional 
information obtained.  Specifically, 
adjudicate the issue of an increased 
evaluation for dermatitis with eczema 
considering both the old and new criteria 
at 38 C.F.R. § 4.118, Diagnostic Code 
7806 in compliance with the holdings in 
Kuzma v. Principi, 341 F.3d 1327 (Fed. 
Cir. 2003) and VAOPGPREC 7-2003 (Nov. 19, 
2003).  If any decision with respect to 
these claims remains adverse to the 
veteran, he and his representative should 
be furnished a SSOC and afforded a 
reasonable period of time within which to 
respond thereto.  The SSOC must contain 
notice of all relevant actions taken on 
the claim for benefits, to include a 
summary of the evidence and applicable 
law and regulations pertinent to the 
issue currently on appeal.  Regarding the 
latter, the SSOC must inform the veteran 
of the new provisions at 38 C.F.R. 
§ 4.118, Diagnostic Code 7806. 

By this remand, the Board intimates no opinion as to any 
final outcome warranted.  No action is required of the 
veteran until VA notifies him; however, the veteran is hereby 
notified that failure to report for a scheduled VA 
examination without good cause shown may adversely affect the 
outcome of his claim for service connection.  38 C.F.R. 
§ 3.655 (2004).  The veteran has the right to submit 
additional evidence and argument on the matter or matters the 
Board has remanded to the regional office.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).




	                     
______________________________________________
	JEFF MARTIN
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs