**UNITED STATES COURT OF VETERANS APPEALS**

No. 96-353

[Walter Bruce, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Argued January 14, 1998 Decided August 28, 1998)

*Geralyn R. Lawrence* for the appellant.

*Adam Llewellyn*, with whom *Robert E. Coy*, Acting General Counsel;
*Ron Garvin*, Assistant General Counsel; *R. Randall Campbell*, Deputy
Assistant General Counsel; and *Peter M. Donawick* were on the briefs,
for the appellee.

Before NEBEKER, *Chief Judge*, and HOLDAWAY and STEINBERG, *Judges*.

STEINBERG, *Judge*: The appellant, World War II veteran Walter Bruce,
appeals, through counsel, a December 6, 1995, decision of the Board of
Veterans\' Appeals (BVA or Board) that denied service connection for
bilateral hearing loss and a compensable rating for service‑connected
otomycosis of the left ear. Record (R.) at 6, 13. This appeal is timely,
and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). For the reasons that follow, the Court will affirm the BVA
decision in part and vacate it in part and remand a matter.

**I. Background**

The appellant served on active duty in the U.S. Army from February 1943
to February 1946. R. at 58-59. A February 1943 induction medical
examination reported hearing acuity as 15/15 bilaterally. R. at 17. He
served as a fire‑control instrument operator, which involved directing
and conducting artillery fire (R. at 59), apparently without the use of
earplugs (R. at 148). His discharge examination indicated, in relevant
part, otomycosis in his left ear. R. at 50. (\"Otomycosis\" refers to a
\"fungal infection of the external auditory meatus\". [Dorland\'s
Illustrated Medical Dictionary]{.smallcaps} 1205 (28th ed. 1994).)

In March 1946, immediately after his discharge, the veteran filed an
application with a Veterans\' Administration (now Department of Veterans
Affairs) (VA) regional office (RO) for VA service‑connected disability
compensation or non‑service‑connected pension. In the box where the
application form requested the disability for which compensation was
being sought, he responded: \"Fungus infection in ear ‑ to present -
impairs \[illegible\] hearing - \[illegible\] 1945 -\". Supplemental
(Suppl.) R. at 1-2. The VA rating worksheet for this application listed
the disabilities on different lines as \"otomycosis\" and \"hearing\"
and recorded measured hearing levels that do not suggest any hearing
loss. Suppl. R. at 4. The VARO decision awarding service connection also
listed both \"otomycosis\" and \"hearing\", but on the same line. R. at
62. The March 1946 RO award letter informing the veteran of the RO
decision, however, provided only that he had been awarded service
connection for a \"Hearing Condition\", rated at 0% disabling. Suppl. R.
at 6.

In 1949, an RO reevaluated the veteran\'s original claim, and the
accompanying decision is almost identical to the 1946 RO decision in
listing both \"otomycosis\" and \"hearing\" on the same line and noting
measured hearing levels that do not suggest any hearing loss. R. at 64.
An October 1949 RO letter again informed the veteran only that he had
been awarded service connection for a hearing condition, rated at 0%
disabling. Suppl. R. at 8.

The veteran sought disability compensation in 1962, complaining of a
fungal infection over various parts of his body, including his ears. R.
at 66-69. An examination report diagnosed various skin conditions (R. at
76), but a March 1963 RO decision denied service connection for these
conditions, noting that, although the veteran was \"service connected
for otomycosis\", there was \"no relationship between the skin
condition\[s\] now diagnosed and the otomycosis during military
service\" (R. at 78).

In November 1990, the veteran filed an application for compensation or
pension seeking the following: \"Re-open s/c claim for ear/hearing and
appendicitis & skin. Request hearing examination at VAMC \[illegible\] &
confirm my hearing loss (s/c)\". R. at 83-86. The RO determined in
December 1990 that \"service connection for hearing loss \[was\] not
established as \[it was\] not shown to have been incurred in or
aggravated by military service\" and also that \"there \[was\] no
evidence to show any increased severity in the
service‑connected . . . fungus of the ears\"; hence, the RO denied both
claims pertaining to his ears. R. at 88-89. The veteran asked for
reconsideration and, in support, submitted letters from Drs. Resneck (R.
at 97) and Winder (R. at 100), as well as a January 1991 letter from Dr.
Pou, a private physician, who stated:

> Both ear canals were slightly dry and scaly, but he did have a little
> ear wax. The tympanic membranes appeared normal. There was no evidence
> of any fungus infection at this time.

R. at 91. An April 1991 VA examination report showed average puretone
thresholds of 55 decibels for the right ear and 44 decibels for the left
ear with speech recognition of 92% bilaterally. R. at 111. In addition,
a VA medical examination report received by the RO in May 1991
concluded:

> Hearing may be diminished . . . . The ear canals are clean. The
> eardrums show no perforation or discharge.

R. at 116. Based on the above findings, a May 1991 RO decision confirmed
the March 1963 RO decision and noted that the \"\[m\]ost recent
examination shows no fungus infection at all\" and that \"\[s\]ervice
connection for hearing loss is not shown to have been incurred in or
aggravated by military service\". R. at 123. The veteran timely appealed
to the Board. R. at 125, 133.

In support of the appealed claims for an increased disability rating for
otomycosis and for service connection for hearing loss, the veteran and
his wife testified under oath before the RO in October 1992 about the
origins of these conditions, about the symptoms he was then
experiencing, and about the need for daily self-treatment of his ears.
R. at 144-53. In November 1994, the BVA remanded the case for further
development of the claims, including a \"VA examination\" to determine
the extent and severity of his service-connected otomycosis and of his
non-service-connected hearing loss. R. at 171-73.

In accordance with the Board\'s remand, a February 1995 VA examination
was conducted. R. at 175-82. Records from that examination showed
average puretone thresholds of 59 decibels for the right ear and 46
decibels for the left ear with speech recognition of 80% bilaterally. R.
at 176. In addition, in an ear examination report signed by Dr. Hollier,
it was noted that the veteran had a medical history of left ear
\"swollen periodically \[with\] slight pain and itching\" and complained
of those symptoms; that the veteran\'s auricles, external canals, and
tympanic membranes were all described as \"WNL\" (within normal limits);
that the only \"active ear disease\" recorded was sensorineural hearing
loss; and that he was diagnosed as having bilateral sensorineural
hearing loss \"\[b\]y patients \[sic\] history\". R. at 180-82.
Thereafter, in an April 1995 medical opinion Dr. Gilbert (it is unclear
whether or not Dr. Gilbert was a VA employee) noted the bilateral
hearing loss and opined: \"There is no etiological relationship between
service\[‑\]connected otomycosis of left ear and hearing loss of left
ear\". R. at 184. Subsequently, the RO confirmed its denial of service
connection for bilateral hearing loss and of an increased evaluation for
service‑connected otomycosis of the left ear. R. at 186‑87.

In the December 6, 1995, BVA decision here on appeal, the Board, relying
on the April 1991 and February 1995 VA examination reports, concluded
that the veteran\'s hearing loss was not incurred in or aggravated by
service and thus denied service connection for bilateral hearing loss.
R. at 6. The Board also concluded that the veteran had not submitted
evidence of symptoms sufficient to meet the schedular criteria for a
compensable rating for otomycosis of the left ear and denied the
rating-increase claim. R. at 12.

At the January 14, 1998, oral argument, the Court directed the parties
to file supplemental briefs. The appellant filed his supplement brief on
February 20, 1998, and the Secretary filed his supplemental brief on
April 7, 1998.

**II. Analysis**

As an initial matter, the Court notes that the veteran contends, inter
alia, that VA failed to assist him in the development of a claim, raised
in his testimony before the Board, for service connection for tinnitus.
Appellant\'s Brief (Br.) at 21-22. However, noting in its decision that
the tinnitus issue had been raised by the appellant for the first time
in that appeal, the Board properly referred the matter to the RO for
appropriate action. R. at 5; *see Godfrey v. Brown*, 7 Vet.App. 398, 409
(1995). The Court will now address the veteran\'s remaining two claims.

***A. Service Connection for Hearing Loss***

The appellant contends that the Board improperly refused to recognize
that service connection for hearing loss had previously been granted in
1946 and later reconfirmed in 1949. Appellant\'s Br. at 8-11. As
conceded by the Secretary, the December 1995 Board decision, in denying
the veteran\'s claim regarding his hearing loss, overlooked records
pertaining to the 1946 and 1949 RO determinations. These records create
some confusion, however, because the records from the RO decisions
contain language different from the subsequent notice letters sent to
the veteran informing him of the RO\'s determinations. Both of the RO
decisions list \"hearing\" and \"otomycosis\" on the same line, thereby
suggesting that the veteran\'s hearing condition could be part of the
service‑connected disability that was assigned a 0% rating. R. at 62,
64. The subsequent notice letters, however, mention only that the
veteran had been granted service connection for a hearing condition,
thereby creating confusion as to whether the RO had granted service
connection for otomycosis or for hearing loss, or, alternatively, for
both conditions. Suppl. R. at 6, 8. Subsequent RO decisions noted that
the veteran\'s otomycosis had been service connected. R. at 78, 89, 123,
186‑87.

The Court holds that these inconsistent records do not constitute a mere
clerical error but rather create a true ambiguity as to whether the
veteran had been service connected for a hearing condition in 1946 and
1949. *Cf. Lozano v. Derwinski*, 1 Vet.App. 184, 185 (1991). The Court
held in *Lozano* that an award letter informing the veteran that he had
been granted service connection for his claimed condition, when the RO
decision had in fact clearly denied service connection, constituted a
simple clerical error and could not be relied upon as a basis for
benefits. *Ibid*. In the present case, however, the 1946 and 1949 RO
decisions may reasonably be read as awarding service connection for the
veteran\'s hearing condition (*see* R. at 62, 64), as the 1946 and 1949
notice letters seem to state (*see* Suppl. R. at 6, 8), and thus the
inconsistency in this record cannot be dismissed as a mere clerical
error.

Although the Court could render a decision as a matter of law as to
whether the veteran\'s hearing condition had ever been service
connected, the ambiguity that results from these inconsistent records
convinces the Court that it should avoid making an initial
determination. *See Dudnick v. Brown*, 10 Vet.App. 79, 80 (1997)
(remanding to Board because \"\[i\]t is not \[the\] function of this
Court to make such a determination \[on application of new rating
schedule code\] in the first instance\"). Thus, the Court will remand
the matter for the Board to render a determination as to whether the
1946 or 1949 RO decisions had granted service connection for the
veteran\'s hearing condition. *See* 38 U.S.C. § 5107(b); *Williams
(Willie) v. Brown*, 4 Vet.App. 270, 273-74 (1993) (\"where there is
significant evidence in support of an appellant\'s claim, as there is
here, the Board must provide a satisfactory explanation as to why the
evidence was not in equipoise\"). On remand, the Board is to determine
only whether the 1946 and 1949 RO decisions had granted an award of
service connection, even if done in error, not whether there was
sufficient evidence in the record at the time of the decisions to
support such an award.

If, on remand, the Board determines that service connection for hearing
loss had been granted by either the 1946 or 1949 RO decision, the Board
is precluded by statute from severing that award even if it appears that
service connection had been granted in error. *See* 38 U.S.C. § 1159.
Section 1159 provides that service connection that has been in effect
for ten or more years may not be severed on or after January 1, 1962,
except upon certain specified conditions. *Ibid.* As the Secretary
concedes, under the plain meaning of the statute, this protection
applies to decisions rendered prior to the statute\'s enactment in 1960,
and none of the specified statutory exceptions pertains to an
erroneously granted benefit in effect for ten or more years. This Court
has previously held that the \"plain meaning \[of a statute\] must be
given effect unless a literal application of \[the\] statute will
produce a result demonstrably at odds with the intention of the
drafters\", *Johnson (Duc Tu) v. Brown*, 9 Vet.App. 369, 371 (1996)
(internal quotations omitted), and we do not believe that extending
section 1159 protection to an erroneous grant of service connection in
1946 or 1949 contravenes the intent of the statute\'s drafters, *see*
Letter from Deputy Administrator Bradford Morse to Chairman Olin Teague
(July 24, 1959), *reprinted in* [H.R. Rep]{.smallcaps}. No. 1529, 86th
Cong., 2d Sess. (1960) (\"bill would require the perpetuation of such
error if it were not discovered until the lapse of 10 or more years
after service connection of the disability\"). Consequently, a
determination by the Board that the veteran\'s hearing condition had
been service connected in the 1940s would require the Board to treat the
veteran\'s present claim as a claim for an increased rating because
service connection would have been in effect for more than ten years.

Additionally, the Court notes that, based on the record from the
February 1995 VA audiologist\'s examination (R. at 175-82), the veteran
currently appears to meet the criteria for a 10% disability rating for
hearing loss and, moreover, appears to have satisfied these criteria
since 1991 (R. at 111, 116). *See* 38 C.F.R. § 4.85, Tables VI and VII
(1997); *Lendenmann v. Principi*, 3 Vet.App. 345, 349 (1992)
(\"disability ratings for hearing impairment are derived by a mechanical
application of the rating schedule\"). Further, regarding the
hearing‑loss claim, the veteran contends, Appellant\'s Br. at 18-21,
that VA violated its duty to assist under 38 U.S.C. § 5107(a) by failing
to comply with the November 1994 Board remand order for a nexus opinion
by an examining physician (R. at 171‑73), because Dr. Gilbert, rather
than the examining physician, provided the medical opinion as to the
lack of relationship between the otomycosis and the veteran\'s hearing
loss. In *Stegall v. West*, \_\_\_ Vet.App. \_\_\_, \_\_\_ No. 97-78,
slip op. at 4 (June 26, 1998), the Court held that \"where . . . the
remand orders of the Board . . . are not complied with, the Board itself
errs in failing to insure compliance\". Accordingly, on remand an
***examining*** physician should be requested to express an opinion,
based on an assumption that the veteran is not already service connected
for hearing loss, as to the likelihood of any relationship between the
veteran\'s otomycosis and his hearing loss and to include in the
examination report a measurement of the veteran\'s current hearing‑loss
levels. Such an examination regarding the veteran\'s current hearing
loss would also form the basis for any current rating if that condition
is found to have been or to be service connected.

***B. Increased Rating for Otomycosis***

The appellant argues that the Board erroneously denied his appeal for an
increased rating for his service‑connected otomycosis, currently rated
0% disabling. Appellant\'s Br. at 15-18. A claim for an increased rating
is generally well grounded when an appellant indicates that he has
suffered an increase in disability. *See Proscelle v. Derwinski*,
2 Vet.App. 629, 631-32 (1992); *cf. Jones (Wayne) v. Brown*, 7 Vet.App.
134, 137-38 (1994). The veteran has asserted that he should be awarded a
higher rating for his otomycosis, and the Court thus holds that this
claim is well grounded.

Disability ratings are to be based, as far as practicable, \"upon the
average impairments of earning capacity resulting from such injuries in
civil occupations\". 38 U.S.C. § 1155; *see* 38 C.F.R. § 4.1 (1997). The
determination of the level of disability due to otomycosis is made under
38 C.F.R. § 4.87a, Diagnostic Code (DC) 6210, which provides for a 10%
rating in the following circumstance:

> With swelling, dry and scaly or serous discharge, itching, requiring
> frequent and prolonged treatment
> \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...10

The assignment of a rating is a factual determination. *Johnson (Brenda)
v. Brown*, 9 Vet.App. 7, 9 (1996); *Lovelace v. Derwinski*, 1 Vet.App.
73, 74 (1990). The Court reviews BVA factfinding under a \"clearly
erroneous\" standard; \"if there is a \'plausible\' basis in the record
for the factual determinations of the BVA, . . . \[the Court\] cannot
overturn them\". *Gilbert v. Derwinski*, 1 Vet.App. 49, 53 (1990);
38 U.S.C. § 7261(a)(4).

Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a
well-grounded claim, the Secretary is required to assist that claimant
in developing the facts pertinent to the claim. *See* 38 U.S.C. § 3.159
(1997); *Littke v. Derwinski*, 1 Vet.App. 90, 91-92 (1990). Under
certain circumstances, \"fulfillment of the statutory duty to assist . .
. includes the conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of the prior
medical treatment, so that the evaluation of the claimed disability will
be a fully informed one.\" *Green (Victor) v. Derwinski*, 1 Vet.App.
121, 124 (1991). \"If a diagnosis is not supported by the findings on
the examination report or if the report does not contain sufficient
detail, it is incumbent upon the rating board to return the report as
inadequate for evaluation purposes.\" 38 C.F.R. § 4.2 (1997). The
appellant argues for a remand to permit another VA examination of his
ears to be conducted. He relies on *Ardison v. Brown*, where the Court
held that the duty to assist requires that, when a claimant submits a
claim for a disease cyclical in the manifestation of its symptoms, such
as tinea pedis (athlete\'s foot), VA must conduct an examination during
the active stage of the disease. *Ardison*, 6 Vet.App. 405, 408 (1994).
In so holding, the Court stated: \"\[I\]t is the frequency and duration
of the outbreaks and the appearance and virulence of them *during the
outbreaks* that must be addressed\". *Id.* at 407 (quoting *Bowers v.
Derwinski*, 2 Vet.App. 675, 676 (citing 38 C.F.R. § 4.1 (1991))).

As to what constitutes competent evidence, \"\[a\]s a general matter, in
order for any testimony to be probative of any fact, the witness must be
competent to testify as to the facts under consideration\". *Layno v.
Brown*, 6 Vet.App. 465, 469 (1994) (citing *Espiritu v. Derwinski*,
2 Vet.App. 492 (1992)). In *Savage v. Gober*, the Court noted that
whether medical evidence was needed to demonstrate the existence of a
disease \"depends on the nature of the veteran\'s present condition,
i.e., whether it is of a type that requires medical expertise to
identify it as the same condition as that in service or during a
presumption period, or whether it can be so identified by lay
observation\". *Savage,* 10 Vet.App. 488, 495 (1997). Lay testimony is
competent only when it regards symptoms of an injury or illness and only
so long as it remains centered upon matters within the knowledge and
personal observations of the witness. *See Layno*, 6 Vet.App. at 470;
*see also Falzone v. Brown*, 8 Vet.App. 398, 403 (1995); *Horowitz v.
Brown*, 5 Vet.App. 217, 221-222 (1993). Thus, for example, lay testimony
is competent to show that an individual had difficulty breathing, *see
Layno*, 6 Vet.App. at 471, or suffered from flat feet, *see Falzone,
supra*. However, when a medical condition is not readily observable and
is not centered upon matters within the knowledge and observation of the
witness, lay testimony as to its existence is not competent, and medical
evidence is then required. *See Savage, supra* (medical evidence
required to find nexus between back condition and arthritis); *Epps v.
Gober*, 9 Vet.App. 341, 344 (1996), *aff\'d*, 126 F.3d 1464 (Fed. Cir.
1997) (requiring medical evidence to show that skin condition caused
blood clots that ultimately resulted in heart condition).

In the present case, the veteran has submitted sworn testimony that his
otomycosis was manifested by discharge, dryness, scaling, and itchiness
(R. at 145-46), and in February 1995 he presented a medical history that
he suffers periodically from a swollen left ear with slight pain and
itching (R. at 180). Moreover, he and his wife testified that he treated
his ears on a daily basis with ear cleaner, peroxide, and Vaseline. R.
at 147. Because this testimony relates to symptoms that are readily
observable, like those of shortness of breath or flat feet, and because
this testimony is centered upon matters within the knowledge and
personal observations of the witnesses, the testimony is competent to
show that the veteran suffered from these symptoms at various times.
*See Layno* and *Falzone*, both *supra*.

The Court notes that the record on appeal might be read as containing
some substantiation of the veteran\'s assertion that he experiences
periodic flare-ups of his otomycosis. A VA medical examination report
filed in May 1991 found no evidence of otomycosis (R. at 116), whereas
Dr. Pou\'s January 1991 private medical examination report, although not
finding evidence of a fungus infection at that time, had found the
veteran\'s ears to be dry and scaly (R. at 91), symptoms that are
specified in DC 6210. The veteran\'s and his wife\'s subsequent
testimony might also be read as suggesting that more recently his ear
condition has required daily attention, and in February 1995 Dr.
Hollier\'s ear examination reported a medical history of the veteran\'s
left ear being \"swollen periodically \[with\] slight pain and
itching\". However, on that February 1995 examination report, Dr.
Hollier also reported that the veteran had then complained of \"\[left\]
ear, swollen, itching, slight pain\" (R. at 180) yet Dr. Hollier found
all aspects of the left ear within normal limits and recorded as
\"active ear disease\" only bilateral sensorineural hearing loss (R. at
180-82). Under these circumstances, the Court can conclude only that the
most recent VA examination was conducted when the veteran\'s otomycosis
was \"active\" within the meaning of *Ardison, supra*.

Accordingly, the Court will affirm the Board\'s denial of the veteran\'s
otomycosis rating‑increase claim because there was no violation of VA\'s
section 5107(a) duty to assist and because the Board\'s decision had a
plausible basis in the record \-- the lack of pertinent symptomatology
found during Dr. Pou\'s January 1991 private examination (R. at 91),
VA\'s May 1991 examination (R. at 116), and VA\'s February 1995
examination (R. at 180-82) \-- *see* 38 U.S.C. § 7261(a)(4); *Johnson,
Lovelace*, and *Gilbert*, all *supra*. Of course, the appellant is
always free to seek an increased rating for his service‑connected
otomycosis by bringing to the attention of VA competent evidence of the
pertinent symptomatology in his left ear under DC 6210.

**III. Conclusion**

Upon consideration of the record and the pleadings of the parties, the
Court affirms the December 6, 1995, BVA decision as to the otomycosis
rating‑increase claim because the appellant has not demonstrated that
the Board committed error ‑‑ in its findings of fact, conclusions of
law, procedural processes, articulation of reasons or bases, or
application of the benefit‑of‑the‑doubt rule ‑‑ that would warrant
reversal or remand under 38 U.S.C. §§ 5107(a), (b), 7104(a), (d)(1),
7261; 38 C.F.R. § 4.87a, DC 6210. As to the claim for service connection
for hearing loss, the Court vacates the Board decision and remands the
matter for further development followed by adjudication on the merits,
consistent with this opinion and in accordance with all other applicable
law and regulation, including section 302 of the Veterans\' Benefits
Improvement Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994)
(found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for
\"expeditious treatment\" for claims remanded by BVA or Court); *see
Allday v. Brown*, 7 Vet.App. 517, 533-34 (1994). On remand, \"the
appellant will be free to submit additional evidence and argument\" on
the remanded claim. *Quarles v. Derwinski*, 3 Vet.App. 129, 141 (1992).
A final decision by the Board following the remand herein ordered will
constitute a new decision that, if adverse, may be appealed to this
Court only upon the filing of a new Notice of Appeal with the Court not
later than 120 days after the date on which the notice of the new Board
final decision is mailed to the appellant.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.