Citation Nr: 0006092 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-19 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefits sought on appeal. The veteran, who had active service from November 1966 to August 1968, appealed that decision to the BVA, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The veteran has failed to submit competent medical evidence which shows that any currently diagnosed hearing loss has a nexus or relationship to service, or that the hearing loss of the right ear which preexisted service chronically worsened or increased in severity during service. 2. The veteran has failed to submit competent medical evidence which shows that any diagnosis of tinnitus has a nexus or relationship to service. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran essentially contends that he has hearing loss and tinnitus that are related to various acoustic traumas he was exposed to during service. In this regard, the VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred in service, if they become manifest to a compensable degree within one year after separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). However, the threshold question that must be answered in this case is whether the veteran has presented well-grounded claims for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between an inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The United States Court of Appeals for Veterans Claims (Court) has established rules for the determination of a well-grounded claim based on the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b). The Court has held that the chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of § 3.303(b) if the condition is observed during service or any applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 493 (1997). The rules concerning chronicity and continuity of symptomatology, however, still require competent medical evidence to relate the veteran's present disability to his or her post service symptoms. See Savage, 10 Vet. App. at 497- 98. With respect to the veteran's claim for service connection for hearing loss, the veteran's September 1966 service induction examination indicates that he entered service with a high frequency hearing loss of his right ear. Service medical records contain no further reference to complaints, treatment or diagnosis of hearing loss, and the veteran's July 1968 separation physical examination contains no information pertaining to hearing loss. The Report of Medical History portion of the separation examination indicates that the veteran denied having hearing loss. The medical evidence associated with the claims file following service contains no reference to treatment or diagnosis of hearing loss. While the veteran has submitted statements from his brother and brother-in-law concerning his hearing loss, the Board would note that in a VA Form 21- 4142(JF) (Authorization and Consent to Release Information to the Department of Veterans Affairs), the veteran indicated that the "claim for hearing loss has not been confirmed by a doctor at this time." Thus, as the record stands, there is no medical evidence that demonstrates that the veteran currently has hearing loss. Even assuming that hearing loss is currently present, there is no medical evidence which offers an opinion that any currently diagnosed hearing loss has a nexus or relationship to service and any acoustic trauma the veteran was exposed to during service. Also, with respect to the veteran's right ear, given that hearing loss was noted upon entering service, competent medical evidence would be needed to demonstrate that the preexisting right ear hearing loss chronically worsened or increased in severity during service. In the absence of such medical evidence pertaining to either ear, the veteran has not submitted evidence of a well-grounded claim, and his claim must be denied on this basis. With respect to the claim for service connection for tinnitus, the veteran's service medical records contain no evidence of complaints, treatment or diagnosis of tinnitus. In addition, medical records dated following service contain no diagnosis of tinnitus. A record dated in September 1998 from Dr. Dallas Richards indicates that the veteran reported a history of tinnitus that started when he was in service and that he had continued to experience tinnitus since that time. Dr. Richards indicated that the veteran had mentioned the ringing in his ears to a previous physician, but on reviewing those records, Dr. Richards indicated that there was no mention of tinnitus. Dr. Richards also noted that the veteran had mentioned tinnitus to him in the past, but he also failed to document that complaint in his records. Therefore, as the record stands, there is no medical evidence which contains a clear diagnosis of tinnitus, and certainly no medical record which contains a diagnosis of tinnitus which is related to service and any acoustic trauma the veteran was exposed to during service. As such, the veteran has failed to submit evidence of a well-grounded claim for tinnitus and his claim must be denied on this basis. While the veteran clearly believes that he has hearing loss and tinnitus which are related to service and acoustic trauma he was exposed to during service, the Board notes that the veteran, as a layperson, is not qualified to offer opinions regarding the etiology of these disorders since such determinations require specialized knowledge or training. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995), citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), in which the Court held that a veteran does not meet his or her burden of presenting evidence of a well- grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions. Where, as here, the determinative issue involves medical etiology, competent medical evidence that the claims are plausible is required in order for the claims to be well grounded. See LeShore v. Brown, 8 Vet. App. 406, 408 (1995). The Board is aware of no circumstances in this matter that would put the VA on notice that relevant evidence which exists, or could be obtained, that, if true, would make the veteran's service connection claims "plausible." See generally McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). Simply put, what is missing from the veteran's claim is competent medical evidence which demonstrates not only that the veteran currently has hearing loss and tinnitus, but competent medical evidence which also relates those disorders to service. In the absence of such evidence, the veteran's claims are not well grounded. The Board does note the veteran's contention that he should be afforded a VA examination in connection with his current claim. In this regard, the Board notes that the veteran was initially scheduled for such an examination and that the examination was canceled because the veteran was unable to report for that examination because of his employment. However, in the absence of evidence of a well-grounded claim, the VA has no duty to assist the veteran in developing the facts pertinent to his claim, including affording him a VA examination. As such, a VA examination was not called for in this case. ORDER Evidence of a well-grounded claim not having been submitted, service connection for hearing loss is denied. Evidence of a well-grounded claim not having been submitted, service connection for tinnitus is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals