Citation Nr: 0001313 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-06 853A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefits sought on appeal. The veteran served on active duty from April 1943 to December 1945. FINDINGS OF FACT 1. There is no medical evidence that establishes a causal nexus between the veteran's current bilateral hearing loss and his military service. 2. There is no medical evidence that establishes a causal nexus between the veteran's right ankle disability and his military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim of entitlement to service connection for a right ankle disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Applicable Law. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also be allowed on a presumptive basis for organic diseases of the nervous system, including sensorineural hearing loss, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 1991). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). The United States Court of Appeals for Veterans Claims (Court) has held that intermittent or temporary flare-ups of a pre-existing injury or disease during service do not constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The threshold question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. 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. See 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements for the claim for service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such 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 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Thus, the claimant is required to establish a nexus between the claimed disability and his/her active military service, even if a continuity of symptomatology has been established under 38 C.F.R. § 3.303(b). See Clyburn v. West, 12 Vet. App. 296 (1999) (distinguishing the factual circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995), and Hampton v. Gober, 10 Vet. App. 481 (1997)). II. Bilateral Hearing Loss. Before service connection may be granted for hearing loss, the loss must be of a particular level of severity. For purposes of applying the laws administered by the VA, impaired hearing will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. However, in Hensley v. Brown, 5 Vet. App. 155 (1993), the Court stated that 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that when audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 160. In this case, the veteran's service medical records contain the veteran's entrance and discharge examinations which included findings of 15/15, bilaterally on the whispered and spoken voice tests; no hearing complaints or abnormalities were noted in the remaining service medical records. In addition, the post-service medical evidence includes an October 1997 VA examination report which includes a history provided by the veteran that his hearing problems began after an in-service exposure to exploding bombs at a distance of 50 to 70 feet. He also reported exposure to bomb blasts and aircraft engine noises during his service as a firefighter, as well as occupational noise exposure as a cabinet maker. Upon examination, the pure tone thresholds, in decibels, for the left ear were 10, 40, 55, 60, 60, and for the right ear which were 25, 55, 60, 55, 65, both measured at 500, 1000, 3000, 2000, and 4000 Hertz, respectively. His speech discrimination was 68 percent for the left ear, and 62 percent for the right ear. The diagnosis was moderate to moderately-severe sensorineural hearing loss, bilaterally. Moreover, in further support of his claim, the veteran submitted statements from Alfred Burgess, Alson E. Free, and Harry F. Ekelman. These individuals collectively recalled a January 1944 bombing incident involving an enemy aircraft and at least two of the individuals recalled the veteran's close proximity to the explosion. The Board has carefully considered the statements regarding the January 1944 bombing incident as well as the veteran's contentions that he has had a hearing loss since that time. However, even assuming that the bombing incident occurred as described by the individuals above, and acknowledging the sincerity of the veteran's statements, where the determinative issue involves a question of medical diagnosis or causation, competent (medical) evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Libertine v. Brown, 9 Vet. App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. at 140, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, lay statements regarding a medical diagnosis or causation do not constitute evidence sufficient to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Grottveit, 5 Vet. App. at 93. After a review of the claims file, the Board finds that the evidence of record does not contain any competent evidence that the veteran's bilateral hearing loss is related to his period of service. Specifically, the veteran has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between his period of service and his current hearing disability. A well- grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the alternative, the Board observes that, as the earliest evidence of record that the veteran suffers from hearing loss is contained in the October 1997 VA examination report, which is more than fifty years after his discharge from service, the veteran has failed to demonstrate a continuity of symptomatology following his discharge from service. 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). More importantly, in the absence of competent medical evidence to support the claim of service connection for bilateral hearing loss, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and thus, the claim must be denied. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.385 (1999). III. Right Ankle Disorder. The veteran's service medical records include a notation on induction that the veteran had a 6 inch scar on the medial aspect of the right ankle following laceration and operation for an infection in 1936. However, the service medical records are devoid of any indication that the veteran was examined and/or treated for any right ankle complaints or problems during his service. The post-service medical evidence includes a February 1988 VA examination report which notes the veteran reported he injured his right ankle and leg when he fell from a cliff in 1935, and that such ankle injury was aggravated during his service. He also complained of right hip, leg and ankle pain with soreness and slight numbness above the big toe. Upon examination, the examiner noted the presence of a heavy fibrotic scar on the medial side of the right foot, which was well healed at the time of the examination. He walked with a limp favoring his right leg. His diagnosis was history of traumatic injury to the right leg and ankle with osteomyelitis, postoperatively healed residual scar tissue, limitation of motion of the right ankle and knee, and symptomatic atrophy of the right lower extremity. After a review of the record, the Board finds that the veteran has not submitted medical evidence showing that he currently has a right ankle disorder which was aggravated during his service, or which is otherwise related to his period of service. Specifically, his service medical records are negative for any evidence of right ankle complaints or treatment/examination during service, and he has not provided any medical evidence asserting that the veteran's preexisting right ankle disorder was aggravated in military service. 38 U.S.C.A. § 1153 (West 1991). The veteran has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between the currently claimed right ankle disorder and his period of service. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, in the absence of competent medical evidence to support the claim of service connection for a right ankle disorder, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and thus, the claim must be denied. 38 U.S.C.A. § 5107 (West 1991). IV. Conclusion. As a final consideration, the Board notes that as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claims of service connection, the VA is under no duty to assist the veteran in developing the facts pertinent to the claims. See Epps v. Gober, 126 F. 3d 1464, 1468 (1997). Giving the benefit of the doubt to a claimant does not relieve the claimant of carrying the burden of establishing a "well grounded" claim, and thus, there is nothing in the text of section 5107 to suggest that the VA has a duty to assist the claimant until he or she meets his or her burden of establishing a "well grounded" claim. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. The Board acknowledges that the claims file contains undated correspondence from the Social Security Administration (SSA). However, the record also indicates that the veteran retired in 1987 and he has not indicated that the basis of the award was either of the claimed disabilities. As the claims file does not contain any indication that the veteran's SSA records, if obtained by the VA, would support a conclusion that the veteran's bilateral hearing loss and/or right ankle disorder are related to his period of active service, the VA is under no duty to obtain such records. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present well-grounded claims of service connection, and the reasons for which his claims failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Evidence of a well-grounded claim not having been submitted, service connection for bilateral hearing loss is denied. Evidence of a well-grounded claim not having been submitted, service connection for a right ankle disorder is denied. S. L. KENNEDY Member, Board of Veterans' Appeals