BVA9402389 DOCKET NO. 90-48 472 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a skin rash. 2. Entitlement to service connection for frostbite. 3. Entitlement to service connection for residuals of a stress fracture of the right leg. 4. Entitlement to service connection for low back strain. 5. Entitlement to the restoration of a 10 percent rating for bilateral sensorineural hearing loss. 6. Entitlement to an increased evaluation for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran had multiple periods of active duty and active duty for training between October 1975 and June 1986, to include October 1975 to January 1976, September 1977 to October 1977, July 1981 to September 1981, October 1981 to December 1981, January 1982 to March 1982, April 1982 to June 1982, July 1982 to September 1982, October 1982 to December 1982, December 1982 to March 1983, April 1983 to June 1983, June 1983 to June 1986. This case came before the Board of Veterans' Appeals (Board) on appeal of a June 1989 rating decision by the Waco, Texas, Regional Office (RO). That decision effectuated a reduction in the evaluation of service connected bilateral sensorineural hearing loss that had been proposed in a February 1989 rating decision, and denied service connection for a skin rash, residuals of frostbite, residuals of a stress fracture of the right leg and low back strain. The notice of disagreement was received in July 1989. The statement of the case was furnished in August 1989. The substantive appeal was received in July 1990. Two rating decisions were issued in July 1990. Supplemental statements of the case was furnished in July 1990 and September 1990. The case was received and docketed at the Board in November 1990, at which time it was referred to the veteran's accredited service representative, AMVETS, who submitted written argument in July 1991. The case was remanded by the Board in November 1990 for further development and in order to afford the veteran due process. A rating decision was issued and a supplemental statement of the case was furnished in March 1992. The case was received and docketed at the Board in June 1992, at which time it was referred to the veteran's representative, who submitted additional written argument in June 1992. Service records were received by the RO in July 1992, and the case was again remanded in December 1992. A rating decision was issued and a supplemental statement of the case was furnished in June 1993. The veteran's representative submitted additional written argument in November 1993. The case is now ready for appellate consideration. In the November 1993 written argument, the representative requests that the case be remanded for a third time in order to further develop the claims involving stress fracture and in order to develop of a claim of service connection for tinnitus. We have reviewed the record and, for reasons that will become apparent in the body of this decision, find that the claim for service connection for a stress fracture has been adequately developed. We refer the issue of tinnitus to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his hearing loss is more than 0 percent disabling and that his 10 percent rating should not have been reduced. He also claims that a rash, residuals of frostbite, residuals of a stress fracture and low back strain are current disabilities that had their origins in service. 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 files. 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 claims for service connection for residuals of a stress fracture, a rash, residuals of frostbite and low back strain. For the following reasons and bases, it is the decision of the Board that the 10 percent evaluation for bilateral sensorineural hearing loss is restored. For the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an evaluation in excess of 10 percent for bilateral sensorineural hearing loss. FINDINGS OF FACT 1. A skin rash is not of service origin. 2. Residuals of frostbite are not of service origin. 3. Residuals of a stress fracture of the right leg are not of service origin. 4. Low back strain is not of service origin. 5. The reduction of the appellant's 10 percent disability evaluation for bilateral sensorineural hearing loss to a noncompensable evaluation, by a June 1989 rating decision, was improper. 6. Bilateral sensorineural hearing loss is currently manifested by hearing acuity levels of I in both ears. CONCLUSIONS OF LAW 1. A skin rash was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(d) (1993). 2. Residuals of frostbite were not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1993). 3. Residuals of a stress fracture of the right leg were not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1993). 4. Low back strain was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(d) (1993). 5. A 10 percent rating is warranted for bilateral sensorineural hearing loss, effective from September 1,1989. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6295 (effective prior to December 18, 1987); Fugere v. Derwinski, 1 Vet.App. 103 (1990). 6. The schedular criteria for an evaluation in excess of 10 percent for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107 in that he has presented claims which are plausible. All relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. I. Service Connection Claims The veteran appeals the August 1989 denial of the aforementioned claims for service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service, including active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. 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). Continuity of symptomatology is required where the condition noted during service is not shown to be chronic. 38 C.F.R. § 3.303(b). A. Skin Rash and Residuals of Frostbite A review of the claims folder reveals that service medical records are negative for complaints or findings of frostbite or a skin disorder. Record of Department of Veterans Affairs (VA) physical examination in December 1986 was negative for findings of a skin rash or frostbite. Health clinic nursing notes from the veteran's place of employment and private medical records dated between July 1986 and April 1989 show that the veteran was seen in March 1987 for cracked and bleeding thumbs and fingers. At that time, the veteran claimed that the condition flared-up periodically. He was treated with a cream. In June 1987 it was noted that his hands and arms would swell, and it was thought that he may have been allergic to the prescribed cream. In August 1988, he reported that he got frostbite in service in 1984. He described thickened yellow toenails with a rash and clear drainage in the summer. He was counseled regarding a fungal infection. In February 1989, he reported a 3 year history of cracked, peeling hand skin. He reported that a corpsman told him it may have been due to soap or moisture. On examination, there were dry, peeling patches on several fingers, but no open lesions, vesicles or pustules were noted. In September 1988 he was observed to have an itchy rash on his fingertips and toe, and the assessment was dyshidrosis, eczema and onychomycosis. Fissured cracks were noted in March 1989, but a patch test was negative. In an April 1989 letter, the veteran's work supervisor indicated that the veteran has been noted to have had peeling skin on his hands since December 1986, and that sometimes the veteran was provided with surgical gloves. VA physical examination in November 1988 revealed dry, cracked skin on the fingers. The feet were clear of rash. The assessment was dyshidrosis. After a longitudinal review of the record, we find that the preponderance of the evidence is against the claims for service connection for a skin rash and residuals of frostbite. There were no complaints or findings of a skin rash or frostbite in service. Although the veteran claims that the rash, present primarily on the fingers, has been present intermittently for several years, it was first noted on examination in March 1987. Furthermore, frostbite has never been diagnosed, nor have symptoms of frostbite been noted. Thus, we find the negative service medical records, coupled with the lack of clinical evidence of a relationship between service and a skin condition, to be of greater probative weight than subjective statements that relate the veteran's current skin symptoms with service. Moreover, we find that the negative service and post service medical records are of greater probative weight than the veteran's statements that he suffers from frostbite. Although we note the veteran's contentions regarding these relationships, he is not competent to provide a medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). B. Residuals of a Stress Fracture Service medical records reveal that the veteran reported shin pain of 3 days duration in December 1975. The assessment was clinical stress fracture. In January 1976, he continued to complain of pain in the medial arch of the tibia and fibula when marching or running. Pitting and tenderness were noted. The impression again was clinical stress fracture. X-rays were negative. In February 1976, the veteran complained of continuing pain in the area of the tibia-fibula only on running and walking. A clinical history of a stress fracture was noted. On examination, there was no edema or tenderness. He was given painkiller and instructed to use crutches for 20 days. He was next seen in July 1984 with complaints of knee pain after playing baseball. VA examination in December 1986 revealed normal range of motion of the lower extremities. Upon VA examination in November 1988 the examiner noted that the stress fracture did not cause any problems at present. There was no pain on palpitation of the right leg, nor was there any pain or deformity or shortness of the leg. The impression upon X-ray was "Upper end of the tibia and distal tip of the lateral malleolus are not well included on these films. Rest of the right tibia and fibula are without evidence of abnormality." The pertinent diagnosis was that a stress fracture was not found. The veteran has stated that he has intermittent pain in the area of the stress fracture on motion. After reviewing the entire record, we find that the preponderance of the evidence is against the claim of service connection for residuals of a stress fracture. A stress fracture, essentially unconfirmed by X-ray, was noted in service. This apparently resolved, as there are no other complaints of pain in that area after February 1976. The injury in 1984 appears to have been acute and transitory in nature, as it was only treated on one occasion and it was thought to be due to "sports soreness or muscle bruise." The record is essentially negative for any current disability related to the stress fracture. The veteran's statements that he suffers intermittent pain are of insufficient weight, in light of the negative medical history, to establish that there are residuals or to put the matter in equipoise. When, as in this case, the evidence neither supports the claim nor is in equipoise, service connection is not warranted. C. Low Back Strain Service medical records disclose that the veteran was seen in December 1975 for persistent low back pain described as dull, aching , constant and non-radiating, aggravated by prolonged standing, running or sitting. The examiner observed the pain to be bilateral over the mid- lower back upon bending and flexing. Gait was normal, there was no deformity. Reflexes and sensory findings were good. The assessment was muscle strain in the T-12 region. Upon release from a period of active duty in February 1976, the veteran gave a personal medical history of recurrent back pain. Post-service records show that the veteran injured his lower back on the job in May 1987 while lifting heavy objects. He was treated for associated low back pain in July and August 1987. Private medical records dated in July 1987 show a 3 year history of low back pain, worse in the last four months. It was noted that the veteran's civilian job involved a lot of heavy lifting. The veteran denied radicular findings or trauma. Neurologic examination of the lower extremities was normal. There was some somatic dysfunction noted at L4-5 on the left and some dysfunction of pelvic mechanics. Manipulation normalized the pelvic landmarks and residual muscle soreness was treated with heat, stretching and medication. On follow- up examination, some pain continued, but physical examination was somewhat unremarkable. The veteran reported that the medication was not very effective and that he had not been doing his stretching exercises. A diagnosis of lumbosacral strain was continued. The veteran received additional treatment for low back pain in July and August 1989. At that time, X-rays showed a normal lumbosacral spine except for spondylolysis, left, at L4. He received chiropractic treatment for the recurring pain in February 1990, at which time the chiropractor noted chronic L4-5 and sacroiliac joint dysfunction. Again, we have conducted a longitudinal review of the record, and we find that the preponderance of the evidence is against the claim for service connection for a low back strain. Although the veteran was seen in service in 1975 for low back pain, the record is essentially negative for further complaints or findings of low back strain until 1987, after a post service injury. The lack of evidence of continued disability after the 1975 pain suggests that it was acute and transitory, resolving after the initial incurrence. To find that there is an etiologic relationship between back pain in 1975 and subsequent pain in 1987, manifested only after injury, would be speculative at best. Although we note the veteran's contentions of continued pain, we find the lack of treatment between 1975 and 1987 to be of greater probative weight than these contentions. Hence, we do not find that the evidence either supports the veteran's claim or is in equipoise, and we are unable to identify a basis for granting serviced connection. V. Bilateral Sensorineural Hearing Loss A. Restoration The veteran asserts that his bilateral sensorineural hearing loss is more than 0 percent disabling, and that his rating was wrongly reduced. Prior to the June 1989 rating decision, the veteran's hearing loss was rated 10 percent disabling, based on the criteria in 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6295, which was in effect at the time of the July 1987 rating decision that granted service connection for bilateral sensorineural hearing loss and assigned the 10 percent rating. The June 1989 rating decision, which reduced the evaluation to 0, was based on the findings of a VA audiometric evaluation conducted in November 1988 using new rating criteria and testing methods for bilateral defective hearing which became effective December 18, 1987. Evaluation of bilateral hearing loss under the old rating criteria ranged from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Diagnostic Codes 6277 to 6297; effective prior to December 18, 1987. A review of the record reveals that both the reduction of the evaluation and the confirmation of the reduction were based on an application of audiometry findings resulting from new testing methods, and not upon a finding that the veteran's hearing became organically better. Such reductions are in contradiction of VA Adjudication Procedure Manual M21-1, Part 1, Paragraph 50.13 (b), and, not in accord with Fugere v. Derwinski, 1 Vet.App. 103 (1990). Hence, in accordance with Fugere, the Board finds that the evaluation for bilateral sensorineural hearing loss is restored to 10 percent, as of the date of reduction, September 1, 1989. B. Increased Evaluation Disability evaluations are assigned based upon average impairment of earning capacity in accordance with the schedule of ratings. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing under the new rating criteria range from noncompensable to 100 percent based on organic impairment of hearing acuity as measure by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometry tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz). To evaluate the degree of disability for bilateral 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, 4.87, Diagnostic Codes 6100 to 6110, effective December 18, 1987 (1993). A 20 percent evaluation for bilateral hearing loss is assigned when the combination of hearing acuity levels in both ears is at levels V and VI, IV and VI, IV and VII, IV and VIII, III and VII, III and VIII, III and IX, III and X, or III and XI. Review of the history of the appellant's bilateral hearing loss shows that it initially became apparent in service. He was referred to the VA for further evaluation. The record includes reports of hearing testing dated from service to the present, including service, VA and other evaluations. VA examinations included testing in December 1986, November 1988 and January 1993. Private evaluations are dated in 1989 and 1990, and an audiogram in August 1988 was performed by Health and Human Services. VA examination in December 1986 revealed pure tone thresholds, in decibels of 55 bilaterally at 2,000 Hertz, and 5 or below at 500 and 1,000 Hertz, bilaterally. On the authorized audiological evaluation in November 1988, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 65 55 45 LEFT 20 60 55 55 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 94 in the left ear. Pure tone averages were 43.75 right, 47.5 left. Private examinations in 1989 and 1990 show bilateral sensorineural hearing, with speech discrimination varying between 84 and 92 percent. The veteran reported no tinnitus or dizziness. Pure tone averages in August 1988 were 53 right and 58 left for the frequencies 500, 1,000, 2,000, 3,000, 4,000, 5,000, 6,000 and 8,000 Hertz. Averages for the frequencies 1,000, 2,000, 3,000 and 4,000 work out to 42.5 right, 46.25 left. On the authorized audiological evaluation in January 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 55 40 55 LEFT 10 25 55 55 60 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. Pure tone averages were 41.25 right, 48.75 left. Tinnitus was reported but judged to be insignificant by the examiner. We have longitudinally reviewed the record, and we find that the preponderance of the evidence is against an increased evaluation for bilateral sensorineural hearing loss. The veteran's hearing is not shown on authorized audiological evaluations to be more than 10 percent disabling under the current rating criteria. The record contains reports of variations in speech discrimination, and we have examined these, mindful that they provide insight into the veteran's continued hearing loss disability. However, we find the VA examinations, which include audiograms and contemporaneous speech discrimination results, to be the more useful in evaluating the veteran's current level of impairment. Thus, the veteran's defective hearing is currently equivalent to level I hearing bilaterally, and an evaluation in excess of 10 percent is not warranted. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, including 4.7, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that bilateral sensorineural hearing loss presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). For example, the disability did not require frequent periods of hospitalization, nor does it present marked interference with employment that has not already been contemplated by the current evaluation. As we are unable to identify a basis on which to grant an increased evaluation, that benefit remains denied. ORDER Service connection for a skin rash is denied. Service connection for frostbite is denied. Service connection for residuals of a stress fracture of the right leg is denied. Service connection for low back strain is denied. Restoration of a 10 percent disability evaluation for bilateral sensorineural hearing loss is granted, effective from September 1, 1989, subject to the laws and regulations governing payment of monetary awards. An evaluation in excess of 10 percent for bilateral sensorineural hearing loss is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * HARRY M. McALLISTER, M.D. J. U. JOHNSON *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.