BVA9401510 DOCKET NO. 92-03 366 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for heart disease, to include hypertension. 2. Entitlement to service connection for liver disease. 3. Entitlement to an increased (compensable) evaluation for history of gout. 4. Entitlement to restoration of an evaluation of 20 percent for bilateral sensorineural hearing loss and to an evaluation in excess of 20 percent for that disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal of a rating decision in February 1990 by the Seattle, Washington, Regional Office (hereinafter RO). The veteran served on active duty from April 1967 to July 1977. The notice of disagreement was received at the RO in March 1990. The statement of the case was issued in June 1990. The substantive appeal was received at the RO in August 1990. A hearing was held at the RO before a hearing officer in January 1991. A supplemental statement of the case was issued in January 1992. The case was docketed at the Board in March 1992 and the file was referred to Veterans of Foreign Wars of the United States, which has represented the veteran throughout the appeal. That organization filed written argument in support of the appeal in August 1992 and the case is ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran believes that he may have had heart disease and/or liver disease since service. He states that he has 3 to 5 days per month on which he has pain in his joints. He contends that his service- connected bilateral sensorineural hearing loss has not improved. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for heart disease and liver disease and that the record supports restoration of an evaluation of 20 percent for sensorineural hearing loss and that the preponderance of the evidence is against increased evaluations for history of gout and hearing loss. FINDINGS OF FACT 1. Claimed heart disease and hypertension were not present in service or within the year after separation from service, nor are they etiologically related to a history of gout. 2. Claimed liver disease was not present in service nor is it etiologically related to a history of gout. 3. On VA examination in December 1989 gout as an active process was not found; no medical evidence has been submitted to show gout as an active process in recent years. 4. Results of VA audiological examinations in October 1978 and October 1989 showed no significant improvement in the veteran's auditory acuity. 5. At a VA audiological examination in October 1989 the veteran's auditory acuity in each ear received a numeric designation of level II. CONCLUSIONS OF LAW 1. Claimed heart disease and hypertension were not due to injury or disease incurred in or aggravated by service, nor were they manifested to a compensable degree within one year of separation from service, nor are they proximately due to or the result of a history of gout. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993). 2. Claimed liver disease was not due to injury or disease incurred in or aggravated by service, nor was it manifested to a compensable degree within one year of separation from service, nor is it proximately due to or the result of a history of gout. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). 3. The schedular and extraschedular criteria for a compensable evaluation for a history of gout are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1) and Part 4, Codes 5002, 5017 (1993). 4. Restoration of an evaluation of 20 percent for bilateral sensorineural hearing loss is warranted. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.85 and Part 4, Code 6292, in effect prior to December 18, 1987; Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd 972 F.2d 331 (Fed. Cir. 1992). 5. The schedular and extraschedular criteria for an evaluation in excess of 20 percent for bilateral sensorineural hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85 and Part 4, Code 6100, effective December 18, 1987. REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. In this connection, we note that, while the RO did not obtain documentation to verify the veteran's assertion that a liver biopsy in 1980 showed liver problems, such a biopsy would not prove that liver disease was present in service or manifested within one year of the veteran's separation from service in July 1977. Furthermore, although at the hearing in January 1991 the veteran requested an opportunity to obtain and submit a report from a VA internal medicine clinic concerning the relationship between service-connected history of gout and heart or liver disease, he did not do so. Therefore, no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). I. Gout, Heart and Liver The veteran's original claim for VA compensation benefits, executed in July 1977, made no reference to heart disease or liver disease. Service medical records are negative for any complaint, diagnosis or treatment of heart disease or liver disease. In a report of medical history for dental treatment in August 1971 the veteran denied ever having been treated for heart disease, high blood pressure or liver disease. In a report of medical history for service separation in May 1977 the veteran denied ever having heart trouble, high or low blood pressure or jaundice or hepatitis. At an examination for service separation in May 1977 the veteran's heart, abdomen and viscera were evaluated as normal; his blood pressure was 114/68; heart disease, hypertension or liver disease were not found. Service medical records disclose that in March 1973 the veteran complained of intermittent pain in his elbows for 4 or 5 years. In April 1977 he reported that he had had joint stiffness since 1968 and intermittent symptoms since then; he had been seen at Walter Reed Army Medical Center but no diagnosis was made; the symptoms were worse in the evenings. Laboratory studies were ordered. In May 1977 the veteran's uric acid level was 7.5. The diagnostic assessment was gout. At a VA examination in August 1977 the veteran made no complaint concerning his heart or liver; his blood pressure was 120/84; his cardiovascular and digestive systems were evaluated as normal; heart disease and liver disease were not diagnosed. At a VA orthopedic examination in August 1977 the veteran complained of stiffness in his elbows, hands, knees, shoulders and hips. Examination of his joints showed no swelling, tenderness or inflammatory changes; all joints had a full range of painless motion. X-rays of the shoulders, elbows, hands, hips and knees showed no arthritis or bony abnormalities. The diagnosis was gout, under treatment, with hyperuricemia. A rating decision in August 1977 granted service connection for gout, under treatment, and assigned a 20 percent disability evaluation. At a VA examination in October 1978 the veteran stated that he had developed swelling and warmth of his left elbow, wrist and hand in 1968 and later had "bluish" swelling of the knees; he had had ankle pain but no big toe involvement; episodes of pain lasted 2 to 24 hours; the last episode was one year earlier. On examination range of motion of the elbows, wrists, hands, shoulders, hips, ankles and toes was normal. Diagnoses included acute self-limited palindromic rheumatism, by history, unlikely to be gout. In support of his claim the veteran submitted records of Alan M. Miller, M.D., medical director of the Optifast program at Riverside Community Hospital, Riverside, California, showing that in January 1989 his uric acid level was 8.4 and in April 1989 his uric acid level was 5.7. At a VA examination in December 1989 the veteran presented with a history of gout; he indicated that he had never had a joint aspirated to look for gouty crystals; he had never had an acute flare of a joint so that it was tender and red and could not be palpated; he claimed to have had episodes of migrating arthralgias. The examiner stated that "Although this does not appear to be affecting his joints, it seems to have affected his liver and his heart." Diagnoses included history of gouty arthritis with no apparent joint arthropathy or sequelae. A rating decision in February 1990 assigned a noncompensable evaluation for a history of gout. At the hearing in January 1991 the veteran testified that: He was being treated for hypertension with medication; he had no medical records showing a heart problem; he was going to show a copy of his service medical records to a doctor at a VA internal medicine clinic to find out whether he had heart or liver disease. He further testified that: He had intermittent pain in his joints and in his lower extremities; at the VA examination in December 1989 he was having "a good day" and had no symptoms; 3 to 5 days per month he had at least minor joint pains. In his decision in June 1991 the hearing officer reported that the veteran's representative had indicated that the veteran would not submit any additional medical evidence. In January 1992 a letter from the RO to the Catholic Medical Center, Manchester, New Hampshire, was returned with a notation that the authorization for release of information was invalid as it was not signed and dated within 90 days of the request for information. In January 1992 the RO requested that the veteran state whether he had recently received treatment for any claimed disability; no response from the veteran is of record. With regard to the evaluation of service-connected history of gout, 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Diagnostic Code 5017 provides that gout will be evaluated under Diagnostic Code 5002, which provides that a compensable evaluation of 20 percent for rheumatoid arthritis as an active process requires 1 or 2 exacerbations per year in a well-established diagnosis. (Emphasis supplied.) In the veteran's case, a VA examiner in 1978, as stated above, found it unlikely that he even had gout and a VA examiner in 1989 found him to have no joint arthropathy or sequelae of gouty arthritis. At the 1989 examination there were clinical findings of full painless motion of all joints and the veteran told the examiner that he had last had an episode of joint pain one year earlier, whereas he later testified that he had 3 to 5 "bad days" of joint pain each month. We find the veteran's self-serving assertion that the 1989 examination just happened to be on a "good day" to be unconvincing and of little probative value. A compensable evaluation for a history of gout is thus not in order. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Codes 5002, 5017. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for hypertension or cardiovascular disease which is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected injury or disease. 38 C.F.R. § 3.310(a). With regard to heart disease and liver disease, the evidence of record does not show that the veteran had either of these disabilities in service. Indeed, there are no clinical findings of record that he has ever had heart disease or liver disease. Although he testified in 1991 that he was taking medication for hypertension, his blood pressure at service separation was 114/68 and his blood pressure on VA examination in August 1977 was 120/84, demonstrating normal blood pressure at service separation and during the year thereafter. Although the veteran claimed in his notice of disagreement that a liver biopsy was performed at the Catholic Medical Center in Manchester, New Hampshire, in 1980 and it showed "liver problems," he did not present any credible medical or other evidence to show liver disease before, during or after 1980. The VA examiner's remark in December 1989 that a history of gout was affecting the veteran's liver and heart appears to have been a poorly worded restatement of an assertion by the veteran, as the statement was not supported by any clinical findings and the examiner did not diagnose heart disease or liver disease. We therefore find that there is no credible evidence to relate claimed heart disease, hypertension or liver disease to the veteran's period of service or to a history of gout. Service connection for heart disease, to include hypertension, and liver disease is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). II. Hearing Loss Service medical records disclose that audiometric testing in June 1973 showed a moderate to severe bilateral sensorineural hearing loss, worse at high frequencies; a right ear hearing aid was issued. At the examination for service separation in May 1977 a significant bilateral hearing loss was noted. A VA audiological examination in August 1977 showed an average pure tone threshold of 38 decibels in the right ear and 33 decibels in the left ear. A rating decision in October 1977 granted service connection for bilateral sensorineural hearing loss and assigned a disability evaluation of 20 percent under criteria then in effect. A VA audiological examination in October 1978 showed average pure tone thresholds of 43 decibels in the right ear and 38 decibels in the left ear. VA audiology clinic notes in May 1982 and June 1982 showed moderate to severe bilateral sensorineural hearing loss; the veteran underwent a trial of a new hearing aid. At a VA audiological examination in October 1989 the pure tone threshold average in the right ear was 64 decibels, with speech discrimination ability of 96 percent; the pure tone threshold average in the left ear was 59 decibels, with speech discrimination of 96 percent. At the hearing in January 1991 the veteran testified that: He developed hearing loss from exposure to the loud noise of artillery in the Republic of Vietnam; his hearing loss had gotten worse, especially when more than one person was speaking. In Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd 172 F.2d 33 (Fed. Cir., 1992), the United States Court of Veterans Appeals considered the legality of the November 1988 recision of a provision in VA's Adjudication and Procedure Manual, M21-1. The section at issue, Section 50.13(b), provided that if a "decrease in evaluation is due changed criteria or testing methods, rather than a change in disability, (the RO should) apply the old criteria and make no reduction." The Court held in Fugere that VA's recission of that paragraph was "without observance of procedure required by law" and it was accordingly held to be "unlawful and set aside," thereby restoring the hearing loss evaluation protection afforded by the cited paragraph. Fugere, 1 Vet.App. at 110, quoting what is now codified at 38 U.S.C.A. § 7261(a)(3)(D) (West 1991). Because of facts present in this case, the tenets of Fugere require the application of the provisions contained in Section 50.13(b) of M21-1. Evaluations by VA of bilateral hearing loss ranged from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 Hertz), as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA regional office or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297, effective prior to December 18, 1987. A 20 percent evaluation for the veteran's service-connected bilateral sensorineural hearing loss was warranted for the results shown by VA audiological examinations in 1977, 1978 and 1982. 38 C.F.R. Part 4, Code 6292, effective prior to December 18, 1987. Evaluations of bilateral defective hearing now range from noncompensable to 100 percent 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 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and Part 4, Codes 6100 to 6110, effective December 18, 1987. A noncompensable evaluation will be assigned for bilateral defective hearing where the pure tone threshold average in one ear was 64 decibels, with speech recognition ability of 96 percent correct (level II), and in the other ear, the pure tone threshold average was 59 decibels, with speech recognition ability of 96 percent correct (level II). 38 C.F.R. § 4.85 and Part 4, Code 6100, effective December 18, 1987. In the veteran's case application of the criteria adopted in December 1987 to the hearing data obtained at the VA audiological examination in October 1989 would lead to assignment of a noncompensable evaluation, clearly a reduction from the previously assigned 20 percent rating. However, the provisions of Section 15.13(b) of M21-1 forbid such a reduction. In evaluating whether a rating higher than 20 percent is warranted currently, the Board must utilize the criteria which became effective December 18, 1987. The 1989 VA audiological results show pure tone threshold averages of 64 and 59 decibels in the veteran's right and left ears, respectively. Those thresholds, with speech discrimination scores of 96 percent in each ear, correspond to numeric scores of level II hearing in each ear, for which a noncompensable evaluation is appropriate. Accordingly, while no reduction may be made in the rating for bilateral hearing loss and the prior 20 percent disability evaluation must be restored, an evaluation greater than 20 percent is not warranted at this time. 38 C.F.R. § 4.85 and Part 4, Code 6100, effective December 18, 1987. In sum, we conclude that the reduction of the previously assigned 20 percent evaluation was improper. Fugere, 1 Vet.App. at 110. We also conclude that the veteran's bilateral hearing loss remains 20 percent disabling, and no more, according to the schedular criteria. 38 U.S.C.A. § 1155. The veteran's history of gout and sensorineural hearing loss do not present an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment, so as to render impractical the application of regular schedular standards. Extraschedular evaluations are thus not in order. 38 C.F.R. § 3.321(b)(1). While we have considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issues on appeal for which the benefits sought have not been granted, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER Service connection for heart disease, to include hypertension, is denied. Service connection for liver disease is denied. An increased (compensable) evaluation for a history of gout is denied. Restoration of an evaluation of 20 percent for bilateral sensorineural hearing loss is granted, subject to governing criteria for the payment of monetary awards. An increased evaluation for sensorineural hearing loss is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * B. KANNEE ALBERT D. TUTERA *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.