Citation Nr: 9829953 Decision Date: 10/07/98 Archive Date: 10/13/98 DOCKET NO. 94-31 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Entitlement to an increased rating for hemorrhoids, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, for the period prior to September 4, 1997. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, for the period from September 4, 1997. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had more than 20 years of active service and retired therefrom in December 1975. The issues on appeal arise from several actions taken by the aforementioned regional office (RO). By an October 1989 rating action, the RO granted service connection for hemorrhoids and assigned a noncompensable rating for this condition. The veteran appealed the assignment of the noncompensable rating and in May 1991, the Board of Veterans' Appeals (Board) remanded this claim for additional development. By a June 1991 rating action, the RO increased the disability rating for hemorrhoids to 10 percent. By a December 1993 rating action, the RO denied a compensable rating for bilateral high frequency hearing loss. By a June 1995 rating action, the RO denied entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). In March 1997, the Board remanded the veteran's claims concerning increased ratings for additional development. By a July 1997 rating action, the RO denied service connection for tinnitus. The veteran has timely perfected his appeals regarding all the issues referenced on the cover page of this decision. The veteran testified at the RO before a local hearing officer in April 1990 and June 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he is entitled to service connection for tinnitus, which he asserts arose after in-service exposure to noise on firing ranges. The veteran also contends that the symptoms of his bilateral hearing loss and hemorrhoids are more severe than is reflected by the disability ratings assigned by the RO. The veteran has argued that he is entitled to TDIU because his service- connected problems have made it impossible for him to work. The veteran filed a claim for TDIU on March 6, 1995. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim concerning service connection for tinnitus is well-grounded. It is also the decision of the Board that the preponderance of the evidence is against a compensable rating for bilateral hearing loss and is against a rating in excess of 10 percent for hemorrhoids. It is further the decision of the Board that the evidence supports an allowance of TDIU for the period prior to September 4, 1997. It is further the decision of the Board that the appellant's claim of entitlement to TDIU for the period from September 4, 1997 must be denied by operation of law. FINDINGS OF FACT 1. The veteran’s allegation that his current tinnitus is related to service is not supported by any medical evidence that would render the claim plausible. 2. Bilateral hearing loss is most recently manifested by a pure tone threshold average at 1,000, 2,000, 3,000, and 4,000 HZ of 51 decibels in the right ear, and 50 decibels in the left ear. Speech discrimination ability is 88 percent correct in the right ear, and 92 percent correct in the left ear. 3. The veteran's hemorrhoids do not result in persistent bleeding with secondary anemia or with fissures. 4. The veteran’s claim for a total disability evaluation based on individual unemployability is plausible, and sufficient evidence for an equitable disposition of the veteran's claim was obtained by the RO. 2. During the period prior to September 4, 1997, the veteran was service-connected for coronary artery disease rated 60 percent disabling, hemorrhoids rated as 10 percent disabling, duodenal ulcer with hiatal hernia and history of diverticulitis rated as 10 percent disabling, a chronic low back syndrome rated as noncompensably disabling, costochondritis rated as noncompensably disabling, bilateral high frequency hearing loss rated as noncompensably disabling, sinusitis rated as noncompensably disabling and migraine headaches rated as noncompensably disabling; the veteran had a combined disability evaluation of 70 percent. 3. The veteran had worked full time since August 1994. 4. The veteran was unable to pursue substantially gainful employment, during the period from prior to September 4, 1997, when consideration is given to his service-connected disabilities. 5. By a December 1997 rating decision, the veteran was granted an increased (100 percent) schedular rating for arteriosclerotic heart disease, status post coronary artery bypass graft, effective from September 4, 1997. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for tinnitus. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has stated well-grounded claims concerning a compensable rating for bilateral hearing loss and concerning an increased rating for hemorrhoids. 38 U.S.C.A. § 5107(a) (West 1991). 3. The Department of Veterans Affairs has satisfied its duty to assist the veteran regarding his claims for a compensable rating for bilateral hearing loss and an increased rating for hemorrhoids. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). 4. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, Diagnostic Code 6100 (1998). 5. The criteria for a 20 percent disability evaluation for hemorrhoids have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7336 (1998). 6. The veteran has stated a well-grounded claim for TDIU for the period prior to September 4, 1997, and the Department has satisfied the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1998). 7. The criteria for assignment of TDIU, for the period prior to September 4, 1997, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 4.16 (1998). 8. The claim of entitlement to TDIU, for the period from September 4, 1997, is denied by operation of law. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.16 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reflect, in pertinent part, that the veteran was examined for pre-induction purposes in May 1953. Prior to the examination, the veteran denied any history of ear trouble. Upon examination, no abnormalities were noted regarding the veteran’s ears or hearing. The veteran was examined for purposes of release from active duty in November 1955. Prior to the examination, the veteran did not indicate any history of tinnitus. Upon examination, no abnormalities were noted regarding the veteran’s ears or hearing. In September 1957 and April 1959, the veteran was examined for purposes of reenlistment. Prior to these examinations, the veteran did not indicate any history of tinnitus. Upon both examinations, no abnormalities were noted regarding the veteran’s ears or hearing. In February 1962, the veteran underwent a periodic examination. While mild bilateral deafness was noted, there were no indications of tinnitus. The veteran was examined again in April 1965, March 1968 and February 1970. He did not indicate any history of tinnitus and upon examination, no notation concerning tinnitus was made. The veteran was treated for external hemorrhoids in August 1971. In July 1973 and January 1974, the veteran was again examined and no findings concerning tinnitus were made. In May 1975, the veteran underwent a retirement examination. Prior to the examination, he did not indicate any history of tinnitus. Upon examination, no findings concerning tinnitus were made. In March 1976, the veteran underwent a special ear, nose and throat examination for VA purposes. He did not report any history of tinnitus. Following the examination, the otolaryngologist’s impression was that the veteran had high frequency hearing loss. By an April 1976 rating action, the RO, in pertinent part, granted service connection for bilateral high frequency hearing loss and assigned a noncompensable rating effective from January 1976. In August 1989, the veteran filed a claim concerning, in part, service connection for hemorrhoids. By an October 1989 rating action, the RO, in pertinent part, granted service connection for post-operative history of external hemorrhoids and assigned a noncompensable rating effective from September 1989. In a November 1989 written statement, the veteran asserted that he was a traveling salesman. He stated that his hemorrhoids were “really starting to bleed and hurt,” and he felt that they met the criteria for a compensable rating. In his March 1990 substantive appeal, the veteran asserted that as a traveling salesman, his hemorrhoids “really take a beating.” He stated that they hurt and bled frequently, which was something which they never did in the past. He claimed that this condition had definitely worsened and required much more medical attention. In April 1990, the veteran testified before a local hearing officer. The veteran testified that he was a traveling salesman who traveled 1000 to 1500 miles every week. He claimed that because he drove so far in cars, and sat on a chair talking on the phone selling, his hemorrhoids would become infected and inflamed. He reported having had a hemorrhoid operation at a VA hospital. Recently, he had had a bowel movement in which there was blood on the toilet paper. He had also been working in his backyard when his underwear became totally bloody from his hemorrhoids, which were burning and itching. He had lost time from work while he was in the hospital during the operation. He had been told to sit in hot water and take cyst baths 3 or 4 times a day. He was using a foam-based medication, suppositories and Preparation H. He indicated that his problems were of the same severity as they were before his operation. His hemorrhoids would flare-up, particularly in hot weather. In summary, the veteran testified that his hemorrhoids had been a hindrance at work, ever since he had been released from active duty. In May 1991, the Board remanded the veteran’s claim concerning a compensable rating for status postoperative external hemorrhoids, so that a examination for VA purposes could be conducted. The veteran underwent a rectum and anus examination for VA purposes in June 1991. He reported that he had had rectal bleeding off and on essentially for the prior month. He had been on Metamucil daily. He was diagnosed at the Dorn VA Hospital by X-ray 5 or 6 years ago as having diverticulitis. He had had hemorrhoid surgery about 10 years before. His present rectal bleeding started two days before, with very marked bleeding every time he had a bowel movement. Upon examination, the veteran had extensive internal and external hemorrhoids with recent bleeding, and there was small reddish ooze on the examining glove. He had some brown firm feces in the rectal vault. On his report, the examiner confirmed that the veteran had bleeding and swelling. The frequency of episodes was noted to be every two to three months. The internal and external hemorrhoids were described by the examiner as being moderately severe. By a June 1991 rating action, the RO increased the disability rating for hemorrhoids to 10 percent. In February 1993, the veteran’s representative submitted a claim concerning a compensable rating for bilateral high frequency hearing loss. Subsequently in February 1993, medical records from the Dorn VA Hospital in Columbia, South Carolina, were associated with the claims file. These records reflect, in pertinent part, that in October 1992, the veteran was fitted for a hearing aid. He was seen for hearing aid maintenance in January 1993. The veteran underwent an audiological examination for VA purposes in October 1993. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 80 65 LEFT 15 25 75 75 Speech discrimination ability was 92 percent in the right ear and 88 percent in the left ear. The veteran also reported having constant tinnitus in both ears. He described the tinnitus as being moderately loud and sounding like whistles and crickets. He indicated that it bothered him occasionally when he was listening for it, but that he was often able to ignore it. The veteran was assessed as having normal hearing in the “low ears” and a moderately severe to severe sensorineural hearing loss in the higher frequencies of both ears. By a December 1993 rating action, the RO, in pertinent part, confirmed the noncompensable rating for bilateral high frequency hearing loss, and deferred consideration of an increased rating for service-connected hemorrhoids. Subsequently in December 1993, additional medical records from the Dorn VA hospital were associated with the claims file. These records reflect that in October 1993, the veteran was seen in the surgical clinic for painful internal hemorrhoids. The veteran had been treated conservatively with little relief and he had requested surgical treatment. The veteran underwent a hemorrhoidectomy under spinal anesthesia in late October 1993. In November 1993, it was noted that the veteran was status post hemorrhoidectomy and that he was doing well and moving his bowels without difficulty. The veteran was still tender but he reported improvement. He stated that he traveled a lot and spent excessive amounts of time driving, which added to his disease state. An examination revealed still increased edema versus recurrence at the lateral portion of the anus, though the veteran was less tender on the day of the examination. There were no internal hemorrhoids. It was noted that the veteran could continue his sitz baths and witch hazel. By a January 1994 rating action, the RO granted the veteran a temporary total rating based on his hemorrhoidectomy hospitalization, effective from October 26, 1993 through November 30, 1993. While the 10 percent rating was resumed thereafter, the RO proposed to reduce the veteran’s schedular evaluation for this disability from 10 percent to a noncompensable rating. In March 1994, additional records from the Dorn VA Hospital were associated with the claims file. These records reflect that in February 1994, the veteran was hospitalized for recurrent hemorrhoids with skin tags. An examination of the anus and rectum revealed multiple skin tags and fissure. The hospital record suggests that the veteran underwent surgery for removal of the hemorrhoids, fissure and skin tags, though it is not clear. By a March 1994 rating action, the RO granted a temporary total rating based on the veteran’s recent hospitalization, effective from February 25, 1994 through March 31, 1994, and confirmed the 10 percent rating for hemorrhoids thereafter. By the same rating action, the RO discontinued its proposal to reduce the rating for service-connected hemorrhoids to a noncompensable evaluation. In June 1994, additional records from the Dorn VA Hospital were associated with the claims file. These records reflect that in early March 1994, it was noted that the veteran had undergone a recent hemorrhoidectomy and was still having bleeding and pain. Subsequently in March 1994, the veteran presented for follow-up of hemorrhoid removal and removal of skin tags. The veteran complained of soreness and blood- tinged bowel movements. Physical examination revealed four to five external anal tags, non-tender but erythematous. Otherwise, the anus was healed. In early April 1994, the veteran complained of soreness upon exertion and when he sat for extended lengths of time. He also reported blood on paper after bowel movements, and also reported having four tags remaining. An examination revealed four external anal hemorrhoids, nontender and pink. The examiner concluded that the veteran had mild/moderate external hemorrhoids, with no prolapsed internal hemorrhoids. It was recommended that the veteran continue the treatment of stool softeners and local measures. In May 1994, the veteran reported that even though some symptoms had recurred, his hemorrhoids were not really as severe as in the past. The veteran sought refills of his medications. The veteran again testified before a local hearing officer in June 1994. The veteran testified that when he had been examined recently at the VA, he had been advised that his hearing had worsened since 1976 and that he needed hearing aids. However, the veteran stated that his hearing aids caused echoing. He also claimed to hear “like crickets just scrawling wide open . . .” and also claimed to hear a loud squealing noise in both ears at night. The veteran stated that he had to read people’s lips or ask them to repeat their words. His family complained that he was turning his radio and TV volume up too loud. The veteran stated that his hearing loss was worse in his right ear. Regarding his tinnitus, the veteran claimed that the “cricket-like” chirping sound had been present for many years. He suggested that that his hearing condition was due to exposure to loud noise during firearm training while in the service. Regarding his hemorrhoids, the veteran testified that he had undergone a hemorrhoidectomy in February 1994, and had been seen as an outpatient for follow-up. He said that when he sat down and strained very long on the commode, he would wipe and the whole paper would have red blood on it. He still ached. He reported having had a hemorrhoid operation in 1983, October 1993 and February 1994. He said it was very painful, six to eight weeks afterward. Despite having been operated on for his hemorrhoids on three separate occasions, the veteran reported that he was still having the same problems: bleeding, pain and external hemorrhoids. In September 1994 and October 1994, additional medical records from the Dorn VA Hospital were associated with the claims file. These records do not reflect any complaints or treatment related to the veteran’s hemorrhoids and/or hearing. By a February 1995 rating action, the RO increased the disability rating for the veteran's service-connected coronary artery disease from 30 percent to 60 percent, effective from August 1994. On March 6, 1995, the veteran filed a claim concerning a total rating for compensation on the basis of individual unemployability. He indicated on his claim form that he last worked full time in August 1994. He reported being employed currently but earning approximately $300 per month. At this time, the veteran was service-connected for coronary artery disease rated 60 percent disabling, hemorrhoids rated as 10 percent disabling, duodenal ulcer with hiatal hernia and history of diverticulitis rated as 10 percent disabling, a chronic low back syndrome rated as noncompensably disabling, costochondritis rated as noncompensably disabling, bilateral high frequency hearing loss rated as noncompensably disabling, sinusitis rated as noncompensably disabling and migraine headaches rated as noncompensably disabling; the veteran had a combined disability evaluation of 70 percent. In May 1995, the veteran underwent another rectum and anus examination for VA purposes. It was noted that the veteran had come for the examination without his “old chart” and most of the information had been obtained by the examiner through the computerized data retrieval system. For that reason, the examiner noted that his evaluation was limited and possibly incomplete. Nevertheless, the veteran reported abdominal pain and difficulty passing stools. He claimed that he was unable to continue the kind of work that he performed. His medical problems were multiple and in evaluating him, it was difficult to determine which medical problem truly interfered most significantly with his daily level of living. Regarding his hemorrhoid problem, the veteran reported a long history of hemorrhoidal disease. He had been bleeding from his hemorrhoids once per week on the toilet paper and occasionally had drops of blood on the stool. The veteran admitted to soiling of blood and stool, and he said he used Tucks pads. However, the veteran said that it was very difficult for him to adequately clean his anus after defection, and this may have accounted for a lot of the soiling of his undergarments. He had difficulty wiping the hemorrhoids well, and it was worse when he was constipated. He denied any history of incontinence or diarrhea. He denied any significant pain with defecation or tenesmus, but said that he had difficulty straining to get the stool out. He had no history of dehydration and certainly was not malnourished or had lost any weight. He had no history of anemia or fecal leakage, and his hemorrhoids flared up about once a week. The veteran stated that his hemorrhoids had become a significant problem for him because he was a salesman and drove a great deal. He did long distance driving, and said that the hemorrhoids would hurt him and actually hang out of his anus. They were not able to be reduced with his finger. The type of advertising that he sold necessitated that he travel all over the coast of Florida. On rectal examination, the veteran had protruding external and internal hemorrhoids. The internal hemorrhoids were “reducible” and produced a considerable amount of discomfort when attempts were made to manually reduce them. The examiner’s impressions/diagnoses were that the veteran had large nonreducible hemorrhoids, consistent with a fourth degree hemorrhoid such that it prolapsed and was not reducible. The examiner noted that such hemorrhoids were rarely amenable to conservative therapy such as dietary counseling, topical agents, stool softeners or sitz baths, but rather would require definitive surgical therapy. These types of hemorrhoids were not suitable for rubber band ligation or infrared or entroid therapy. It was noted that patients with nonreducible hemorrhoids were at risk of strangulation and necrosis. A surgical evaluation of the fourth degree hemorrhoid was recommended, as was continuation of the veteran’s suppositories which might help improve the inflammation at the rectum and anal canal. The veteran also underwent an audiological examination for VA purposes in May 1995. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 75 75 LEFT 20 30 75 75 Speech discrimination ability was 88 percent in the right ear and 92 percent in the left ear. The veteran reported the onset of tinnitus while in service, and described it as being bilateral and constant. The veteran was assessed as having mild hearing loss for the frequencies below 2000 and a severe sensorineural hearing loss in the higher frequencies bilaterally. The veteran also underwent a nose and sinuses examination for VA purposes in April 1995. He reported that his bilateral hearing aids would cause whistling and distortion of voices and noise. He had a tremendous difficulty talking on the phone and understanding people in a noisy environment. He occasionally wore a hearing aid but usually did not. He did alright with one on one conversations in a quiet room. He also reported a long history of bilateral constant tinnitus. He described this as a constant noise similar to “numerous crickets chirping.” The veteran ran a fan at night in order to mask the tinnitus. He reported occasional trouble with dizziness and had had a long history of motion sickness. He denied difficulty with vertigo. He reported tremendous noise exposure while on the pistol range. He reported being in the military police and being required to shoot .45s on the range without hearing protection. The veteran stated that his ears would frequently ring for several days after going to the pistol range. He denied a history of ear infections, surgery or family history of hearing loss. He was burned on the ear as a child and he believed this was his right ear, although he was not too sure. He appeared to have no sequela from that burn. An examination revealed, in pertinent part, that air conduction was greater than bone conduction bilaterally. The tympanic membranes were normal and the canals were clear. The examiner’s impression was, in part, tinnitus. By a June 1995 rating action, the RO, in pertinent part, confirmed the 10 percent rating for hemorrhoids, and confirmed the noncompensable rating for bilateral high frequency hearing loss. By the same rating action, the RO denied a total rating based on individual unemployability. In a May 1996 notice of disagreement filed on the veteran’s behalf by his representative, it was noted that he received retirement Social Security benefit payments, and that he no longer worked full-time as a long distance salesman. In March 1997, the Board remanded the veteran’s claims for additional development, to include a new anus and rectum examination for VA purposes. The VA examiner was asked, in part, to note whether any anemia present was the result of the hemorrhoids or some other co-existing condition. In a written statement dated in April 1997, the veteran asserted that he had his first hemorrhoid operation in 1983. He continued to have hemorrhoid problems and subsequently had another operation in October 1993. The veteran suffered “an awful lot of pain” until February 1994 and was operated on a third time. After he healed up, he had three to four hemorrhoids still hanging out and he believed he had one fissure. Since that time, the veteran reported continually experiencing sticking, itching and pain. There was blood on the toilet paper several times every week. It was difficult to wipe after a bowel movement because of the external hemorrhoids and when he had several bowel movement a day, the many wipes caused a lot of pain and bleeding. Every time he changed underwear, it appeared as though he had not even wiped. The veteran’s VA physician had given him stool softener and ointment when he had pain and bleeding. In September 1996, numerous medical records from the Social Security Administration were associated with the claims file. These records reflect that in June 1990, the veteran had been checked recently for prostate problems. He had bleeding hemorrhoids and was bleeding at the time of his visit to the VA clinic. The veteran was complaining of blood on several bowel movements that day and stated that this was similar to previous hemorrhoidal bleeds. There were no other complaints. Rectal examination revealed external tags and a small amount of blood. In August 1993, the veteran was seen at Dorn VA Hospital after complaining of, in part, hemorrhoid pain. It was noted that the veteran had several large but non-bleeding external hemorrhoids. Another examination at the surgical urology clinic revealed nonthrombosed external hemorrhoids. However, another examination in August 1993 at the Access Care Clinic at Montcrief Army Hospital in Fort Jackson, South Carolina, revealed three to four hemorrhoids at the anus rim which were painful and thrombosed. An examination in September 1993 revealed that the veteran had multiple large skin tags in the perianal area. There was no evidence of thrombosis or inflammation. Two weeks later, the veteran's symptoms had worsened and he reported bright red blood in his stools. Surgery was scheduled. These records also reflect that in October 1993, the veteran continued to have rectal and perirectal pain, particularly at the anterior verge of the rectum. An examination revealed increased tenderness at the anterior rectum verge, with multiple perianal tags which were non-thrombosed. There were no abscesses or cysts and no fistula was palpated. Tone was present and stools were heme negative. The veteran underwent a hemorrhoidectomy subsequently in October 1993. There are additional records which pertain to treatment of the veteran's hemorrhoids after his surgery, including his subsequent surgery in February 1994, which have been summarized above. These records also reflect treatment of the veteran for the period between March 5, 1995 and September 4, 1997. In April 1995, the veteran sought outpatient treatment for his coronary artery disease. In May 1995, the veteran underwent a “Disability Determination Division Physical” during which he reported on a typical day, he arose at around 9:00 in the morning. He would help his wife with some of the cooking and housework, and would do some of the yard work including riding on the lawnmower. He could not push the lawnmower because of angina and had to limit his activity frequently. He still went fishing to some extent. The veteran reported that he worked in real estate for approximately four years after leaving the military. Thereafter, he worked for about twenty years as a traveling salesman. However, for the prior few years, this had been less than full time due to his health. He indicated that his current impairments included trouble with hemorrhoids, neck and back pain, angina, diabetes, a thyroid condition, and pain in his feet, all of which combined to limit his ability to work productively. It was noted that the veteran had undergone a triple vessel coronary artery bypass graft in 1989, though he had not had a myocardial infarction. This had been done on an emergency basis following an abnormal stress test done for chest pain. He had hemorrhoid surgery in 1983 and 1993, had a partial resection of the left side of the colon for diverticular disease with an appendectomy in January 1995, and had also had a vasectomy. He was on multiple medications including several agents for his skin to control porphyria cutanea tarda. He had agents to care for his hemorrhoids, diabetes, thyroid hormone and arthritis. Upon cardiovascular examination, the veteran reported that he had had angina since August 1988, hypertension for about that long, and that he had frequent dyspnea. His angina occurred without provocation as far as he could tell, and was not exertional. It typically came when he was sitting. He would take one or two Nitroglycerines for the pain, which was experienced in the substernal area and sometimes radiated through the arms. This occurred two to three times per week. The examiner concluded that the veteran did have multiple medical problems, perhaps the most major being the exertional and non-exertional angina. He regularly had experienced chest pain on doing activities such as pushing a lawnmower or pulling the start rope on a boat motor and had to refrain from these activities. The pain in his neck and hemorrhoid disease had limited his ability to perform his activities as a traveling salesman, while his skin condition seemed reasonably controlled at that time. His blood pressure was under satisfactory control, and he was on oral agents for his diabetes and replacement for his thyroid. In July 1997, additional medical records from the Dorn VA Hospital were associated with the claims file. These records reflect that during an examination in November 1994, the veteran was noted to have external hemorrhoids. In April 1996, the veteran was found to have multiple hemorrhoidal tags, with one such tag being inflamed and tender. A warm sitz bath and continued medication were recommended. In July 1995, the veteran reported scattered arthralgias which continued and had been treated with medication. In September 1995, the veteran complained of shortness of breath, pain down his left arm and shoulder, and some tightness in his chest. Several days later, the veteran had multiple complaints and could not understand why he could not receive total disability. The veteran complained of dyspnea on exertion and chest pain since he had last been seen six months before. He reported that he had had these episodes twice to three times every month and on exertion. He had last visited an emergency room several days before. The veteran complained that he could not sleep secondary to stress. The veteran continued to seek treatment for chest pain several times between October 1995 and January 1996. In July 1996, the veteran reported having hemorrhoids during a VA examination. He reported that he discontinued working, including traveling, since his last examination. In August 1996, the veteran was examined and denied chest pain, shortness of breath or paroxysmal nocturnal dyspnea. In October 1996, examination revealed large external hemorrhoids. Stool was brown and heme negative, and there were no masses in the rectal vault. In January 1997, the veteran was examined and reported that he had hemorrhoidal- induced pruritus intermittently. Upon examination, large external hemorrhoidal tags were noted but the stool was heme negative with no rectal masses or abnormalities noted. The veteran desired no further surgical intervention but would notify the VA physician if he changed his mind. Conservative medical management for hemorrhoids continued. In February 1997, the veteran underwent a cardiology examination and reported multiple problems, particularly feet pain from medication he was taking for his heart. In May 1997, the veteran underwent another examination for VA purposes. The veteran reported that he had rectal bleeding multiple times, up to about three times per week on average for the past few years. Most often, this was limited to a few drops of bright blood on the toilet tissue after a bowel movement. He reported frequent soiling, up to six times per week with varying amounts of stools, usually of a small volume, at times also with some blood stain. This necessitated changing his underwear more frequently. He denied having experienced true incontinence and denied diarrhea. He also denied excessive mucus but admitted to rare pain on defection, approximately once or twice a month. He denied any history of dehydration, malnutrition or anemia. An examination revealed a well-developed, obese male in no acute distress. No pallor or peripheral lymphadenopathy was noted. Rectal examination revealed multiple external skin tags with hemorrhoids of varying sizes, some large, protruding from the anus and some redundant tissue was noted as well. Digital rectal examination was very tender as was anoscopy which, in addition, revealed internal hemorrhoid. No thrombosed hemorrhoids or fissures were noted at the time of the examination. The examiner’s impressions were as follows: 1. Internal hemorrhoids, multiple, which are small and medium sized, and at present, are not thrombosed and are reducible. 2. External hemorrhoids of varying sizes, some large and with some associated redundant tissue which are not thrombotic at this time. (These, in answer to the questions [referenced in the Board’s remand], are not reducible). 3. History of multiple hemorrhoidectomy surgeries in the past, the most recent being February 1994. 4. History of anal fissure in the past. The examiner also made the following statement in his report: As per the stated history, [the veteran] does have recurrent bleeding, the frequency of which is noted in the foregoing dictation, but no resultant anemia is evident at this time, although he appears to have been anemic at one time (specifically in January, 1995), though it is entirely possible that the anemia at that time was explained sufficiently on the grounds of his diverticulosis, diverticular bleeding or the surgery he underwent. By a July 1997 rating action, the RO denied service connection for tinnitus. In October 1997, additional medical records from the Dorn VAMC were associated with the claims file. These records reflect, in pertinent part, that on September 4, 1997, the veteran underwent a cardiology examination, apparently following a stress test which showed “inf apical reversibility.” The veteran was scheduled for a heart catheter. (The catheterization was conducted on September 10, 1997, and revealed, in part, that the saphenous vein graft to the right coronary artery was totally occluded, the saphenous vein graft to obtuse marginal was occluded at insertion, and the right coronary artery was totally occluded with some distal filling). In October 1997, the veteran was afforded a mental status examination. He indicated being a traveling salesman from 1975 to the past year. He left this employment reportedly because his feet were burning, and he was getting “worn out.” Over the past year, he spent his time around the house. By a December 1997 rating action, the RO, in part, increased the disability rating for a service-connected disability of arteriosclerotic heart disease status post coronary artery bypass graft with cardiomegaly to 100 percent, effective from September 4, 1997. In a written statement dated in January 1998, the veteran asserted, in pertinent part, that he was in the military police and had to fire .45 caliber pistols yearly which he believed caused the tinnitus which had been present over the years. He had always mentioned, during his hearing checkups, that his ears had constant squeaking noises like crickets. According to the veteran, at that time he did not know that this condition was called tinnitus. He heard these noises constantly while awake and used an electric fan at night to help him go to sleep. II. Analysis 1. Claim concerning service connection for tinnitus Under applicable criteria, service connection will be granted for disability resulting from personal injury suffered or disease incurred in or aggravated by service. 38 U.S.C.A. § § 1110, 1131 (West 1991). A claimant for benefits under a law administered by the Secretary of the United States Department of Veteran Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well-grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In order for a claim for service connection to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service injury or disease and the current disability (medical evidence.) The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran’s claim concerning service connection for tinnitus is not well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). In several written statements and his hearing testimony, the veteran has repeatedly claimed that he has tinnitus which is the direct result of his in- service exposure to noise on firing ranges. This evidence is insufficient to establish service connection, however. The United States Court of Veterans Appeals (Court) has held that lay persons cannot provide testimony where an expert opinion is required. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, the claims file lacks a specific medical conclusion that the veteran’s alleged tinnitus had its onset in service. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). Of course, the veteran may file a claim to reopen, this time submitting an opinion from a medical doctor that his tinnitus is related to service. In making this statement, however, the Board intimates no opinion as to the ultimate disposition warranted for any future claims the veteran may make. As it currently stands, the veteran’s claim concerning service connection for tinnitus is not well-grounded. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). As a claim that is not well-grounded does not present a question of fact or law over which the Board has jurisdiction, the claim concerning service connection for tinnitus is denied. 2. Claims concerning increased ratings The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a). A claim for an increased evaluation is well-grounded if the claimant asserts that a disorder for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran asserted that his bilateral hearing loss and hemorrhoids are worse than currently evaluated, and he has thus stated well-grounded claims. The appellant having satisfied his initial burden, the Department has a duty to assist him in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995). The Court has held that the duty to assist includes obtaining available records which are relevant to the claimant’s appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). The Department has obtained VA treatment records and has accorded the veteran several examinations and two hearings. The RO has satisfied its duty to assist. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on 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 v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. a. Compensable rating for bilateral hearing loss The veteran’s bilateral hearing loss is currently evaluated as noncompensably disabling under Diagnostic Code 6100. The evaluation of hearing impairment is based on examinations using controlled speech discrimination tests together with results of a puretone audiometry test. 38 C.F.R. § 4.85 (1998). The results are charted on Table VI and Table VII. The assignment of a disability evaluation for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). At the veteran’s latest VA examination, the average puretone decibel loss for his right ear, achieved by adding hearing loss at 1000, 2000, 3000, and 4000 HZ and dividing by four, was 51. The percent of discrimination was 88. By intersecting the column in Table VI for average puretone decibel loss falling between 50 and 57 with the line for percent of discrimination from 84 to 90, the resulting numeric designation for the right ear is II. The average puretone decibel loss for the veteran’s left ear was 50. The percent of discrimination was 92. The resulting numeric designation for the left ear is I. Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of II for the right ear and I for the left ear, the point of intersection on Table VII requires assignment of a noncompensable rating under diagnostic code 6100. The outcome is identical when analyzing the results of the veteran’s October 1993 audiological examination for VA purposes. There, the average puretone decibel loss for the veteran’s right ear was 46. The percent of discrimination was 92. The resulting numeric designation for the right ear is I. The average puretone decibel loss for the veteran’s left ear was 48. The percent of discrimination was 88. The resulting numeric designation for the left ear is II. With a numeric designation of I for the right ear and II for the left ear, the point of intersection on Table VII once again requires assignment of a noncompensable rating under diagnostic code 6100. The RO has applied the rating schedule accurately, and there is no basis for assignment of a higher evaluation. Based on the evidence available, the evaluation to be applied under the rating schedule is clear, and entitlement to a compensable evaluation for bilateral hearing loss is not shown. Finally, the evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids. An examination to determine this improvement is therefore unnecessary. 38 C.F.R. § 4.86 (1998). b. Increased rating for hemorrhoids Under the applicable criteria, hemorrhoids are evaluated under the provisions of 38 C.F.R. 4.114, Diagnostic Code 7336. Under this code, a noncompensable rating is assigned when internal or external hemorrhoids are mild or moderate. A 10 percent rating is assigned when they are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating, the highest rating under this code, is assigned for hemorrhoids with persistent bleeding and secondary anemia, or with fissures. In this case, the criteria for a 20 percent disability evaluation have not been met. While the veteran has testified that he has experienced daily bleeding, he has not asserted that he also suffers from anemia. In fact, the most recent VA examination report specifically concludes that the veteran did not have anemia. While the VA examiner noted that the veteran was possibly anemic in January 1995, there is no evidence that this was due to his hemorrhoids. Moreover, the examiner noted no current evidence of fissures. The RO has applied the rating schedule accurately, and there is no basis for assignment of a higher evaluation. On the basis of the evidence available, the evaluation to be applied under the rating schedule is clear, and entitlement to a 20 percent disability evaluation for hemorrhoids is not shown. 3. Entitlement to TDIU, for the period prior to September 4, 1997. The veteran’s claim concerning entitlement to TDIU for the period prior to September 4, 1997 is well-grounded. It is plausible that his service-connected disorders prevented him from obtaining gainful employment during that period. We are also satisfied that all relevant facts have been properly developed regarding this issue. Therefore, there is no further duty to assist the veteran to comply with the provisions of 38 U.S.C.A. § 5107. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1998). VA regulations provide that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (1998). VA regulations further provide as follows: §4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service- connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (1998). The Board notes that on October 8, 1996, VA published a final rule, effective from November 7, 1996, amending sections of the Schedule for Rating Disabilities in order to update the portion of the rating schedule that addressed mental disorders to ensure that it used current medial terminology and unambiguous criteria, and that it reflected medical advances that had occurred since the last review. These changes included the excision of paragraph (c) from 38 C.F.R. § 4.16, which read as follows: (c) The provisions of paragraph (a) of this section are not for application in cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation. In such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. During the period prior to September 4, 1997, the veteran was not service-connected for any mental disorder, so the excised paragraph (c) does not have a bearing on his claim and will not be considered by the Board. The following regulation also applies to the veteran’s claim: §4.19 Age in service-connected claims. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension. 38 C.F.R. § 4.19 (1998). During the period prior to September 4, 1997, the veteran’s combined disability rating was 70 percent and his coronary artery disease had been determined to warrant a 60 percent disability evaluation. Therefore, he met the schedular disability requirement for consideration under 38 C.F.R. § 4.16(a). Thus, if it is shown that the veteran is unable to follow or secure a substantially gainful occupation as a result of his service-connected disabilities, a total rating may be assigned. On his March 6, 1995, application, the veteran indicated that he had not held a full time job since August 1994. The evidence indicates that the veteran's work as a traveling salesman was hampered by his service-connected hemorrhoid condition, as well as his significant cardiovascular disability. In particular, the May 1995 examination report received from the Social Security Administration indicates that during this time, the veteran’s ability to help his wife with house and yard work was limited by his chest pain. His hemorrhoid disease was also noted to hamper his work as a traveling salesman, and this was also noted during the veteran's May 1995 examination for VA purposes. Although there are findings that the veteran has non-service- connected disabilities that could effect his employability, the Board is convinced that the veteran’s service-connected disabilities rendered him unemployable prior to September 4, 1997. Specifically, the Board notes that no evidence has been associated with the claims folder that refutes the veteran’s position, and none of the recent VA medical records contain a specific opinion that the veteran is, in fact, able to work with the degree of disability described in the recent medical evidence. Considering his extremely limited ability to work from his cardiovascular and hemorrhoidal conditions, the Board concludes that the veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment, during the period prior to September 4, 1997. 5. Entitlement to TDIU, for the period from September 4, 1997. As noted above, by the December 1997 rating decision, the RO granted an increased (100 percent) schedular rating for arteriosclerotic heart disease, status post coronary artery bypass graft, effective from September 4, 1997. The provisions of 38 C.F.R. § 4.16 provide for the award of TDIU when the schedular rating is less than total, “when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities…” 38 C.F.R. § 4.16 (a) (1998). However, a condition for awarding such a benefit is that the schedular rating be less than total. Id. In the veteran's case, the schedular rating for arteriosclerotic heart disease, status post coronary artery bypass graft, was ultimately increased to 100 percent, effective from September 4, 1997. Because the total schedular rating was made effective that date, a TDIU rating may not now be granted for the period from September 4, 1997. This is so because of the condition precedent established by § 4.16(a). Where the law is dispositive of a claim, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Consequently, as the statutory requirements of 38 C.F.R. § 4.16 are not met, the claim for TDIU for the period from September 4, 1997 is denied by operation of law. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for hemorrhoids is denied. Entitlement to TDIU, for the period prior to September 4, 1997 is granted subject to the applicable criteria governing the payment of monetary benefits and the assignment of effective dates. Entitlement to TDIU, for the period from September 4, 1997 is denied. Iris S. Sherman Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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. - 2 -