Citation Nr: 0000643 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 96-25 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from December 1943 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The veteran failed to report for a hearing scheduled in August 1996. See 38 C.F.R. § 20.704(e) (1999). FINDING OF FACT There is no competent evidence of record that the veteran's current bilateral hearing loss disability had its onset during service, was compensably manifested within the initial post-service year, or is otherwise related to the veteran's period of service. CONCLUSION OF LAW The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service records reflect that the veteran was an electrician's mate in the Navy. His service medical records show no complaints or abnormal findings regarding his ears or hearing. The report of physical examination for separation dated in January 1946 shows that whispered and spoken voice hearing was 15/15 bilaterally, without noted disease or defect. A report of VA outpatient evaluation dated in July 1992 indicates that the veteran had a moderate to severe sensorineural hearing loss bilaterally for which he had purchased hearing aids. In August 1994, the RO received the veteran's claim of entitlement to service connection for hearing loss, claimed to have been incurred while working in an engine room during service. He reported post-service treatment with a private physician in 1965. In November 1994, the veteran reported for a VA examination. He reported a long history of hearing loss and of noise exposure, the latter noted to include two years of service during World War II and several years working in a shipyard without hearing protection. Audiometric testing revealed pure tone thresholds, in decibels, as follows: Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 75 85 70 80 75 LEFT 65 75 75 75 85 Speech recognition ability was 72 percent in the right ear and 48 percent in the left ear. The impression was severe, bilateral sensorineural hearing loss for which the veteran wore hearing aids. In March 1999, the RO requested the veteran to provide a release for the records of Dr. H., by whom he reported treatment for hearing problems in 1965; the veteran did not return the release forms. Pertinent Criteria In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, it shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). "[A] person who submits a claim for benefits under a law administered by the Secretary shall have 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); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." For a claim of service connection to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In any case, a claim for service-connection for a disability must be accompanied by evidence that establishes that the claimant currently has the claimed disability. Absent proof of a present disability there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). For the purposes of determining whether this claim is well grounded, the Board must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). Analysis Initially, the Board notes the March 1999 report of an RO Decision Review Officer's conference with the veteran's daughter, indicating that the veteran had recently suffered a stroke and that she was assisting him. There is no indication that the veteran has been declared incompetent or is otherwise incapable of pursuing his claim. In any event, the daughter was made aware of the type of evidence that might be useful, was advised that forms would be sent for the release of Dr. H.'s records, and was also advised of the best way to well ground the veteran's claim. Thus, while there is evidence that the veteran has been ill, there is no indication that his appeal can not go forward. The Board acknowledges the existence of a current hearing loss disability as defined in 38 C.F.R. § 3.385 (1999). The Board also accepts as true, for the purpose of determining well groundedness, the veteran's statement of having worked in an engine room during service, thereby having been exposed to noise. There is, however, no competent evidence of a medical nexus between the currently shown hearing loss and the veteran's period of service. With regard to the above, the Board notes that service medical records are negative for notation of any complaints or findings of hearing loss or any ear problems. Additionally, the veteran's hearing was normal on the service discharge examination, although only whispered and spoken voice testing was done. Nor is there any competent evidence showing a compensable hearing loss within the initial post- service year. See 38 C.F.R. §§ 3.303(a), 3.307, 3.309. The Board acknowledges that the veteran has reported treatment by a private physician in 1965, about 20 years after service, for hearing problems. However, he has not provided a release for the RO to request pertinent records. The Court has held that if the veteran wants the VA to consider documents not in the possession of the Federal government, he must 1) furnish them to the VA, or 2) request the VA to obtain them, provide an appropriate release for such purpose, and demonstrate how the documents are relevant to the claim. Counts v. Brown, 6 Vet. App. 473 (1994). In any case, the veteran has identified treatment many years after his discharge and has not indicated that Dr. H. causally linked hearing loss to the veteran's period of service. To be well grounded, there must be medical evidence or opinion tending to show a nexus, or link, between an in- service disease or injury and the current hearing loss. Despite the veteran's belief in such a link, medical evidence is required to show a relationship between the current medical diagnosis and service. In this case, there is no medical evidence showing complaints or symptoms of, or treatment for, hearing loss for many years following the veteran's separation from active service. Nor is there any opinion of record from a competent medical professional that the veteran's hearing loss, first identified after service, is related to his active service in any manner. The record does not reflect that the veteran himself is competent to provide the requisite nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent such, the veteran's claim is not well grounded and is denied. The Board recognizes that the Court has held that there is some duty to assist the veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where his claims appear to be not well- grounded where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996). In the instant case, however, the veteran has not identified any available medical evidence that has not been submitted or obtained that will support a well-grounded claim. ORDER Service connection for bilateral hearing loss is denied. JANE E. SHARP Member, Board of Veterans' Appeals