BVA9502078 DOCKET NO. 93-04 036 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Veterans Affairs Board, Mississippi INTRODUCTION This matter came before the Board on appeal of a May 1992 rating decision of he Jackson, Mississippi, Regional Office (hereinafter RO). The veteran had active military service from April 1952 until January 1954. The case was remanded by the Board for further development in July 1993. It has since been returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that this bilateral defective hearing is related to exposure to artillery fire in service which he was exposed to in the Spring and Summer of 1953, while in combat in Korea. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). 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 appellant has failed to present a well grounded claim seeking service connection for bilateral defective hearing. FINDINGS OF FACT The claim seeking service connection for bilateral defective hearing is not plausible. CONCLUSION OF LAW The claim seeking entitlement to service connection for bilateral defective hearing is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the veteran has presented a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, this appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Under applicable criteria, in order to establish service connection for disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. § 1110. If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post service. 38 C.F.R. § 3.303(b). In addition, where a veteran served ninety (90) days or more of active wartime service, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The DD 214 reveals that the veteran's medals include a combat infantry badge. As such, he is shown to have had combat service. The service medical records are negative for complaints or findings of defective hearing in either ear. On the service discharge examination a normal hearing score was reported for whispered voice. The veteran did not complain of defective hearing and audiometric testing was not done. Among the service medical records is a post service periodic reserve status examination report dated in February 1958. The veteran did not complain of defective hearing at that time. A normal hearing score was again reported for whispered voice. Audiometric testing was not done. On VA audiometric examination in March 1992 a bilateral sensorineural hearing loss was reported. On a VA general medical examination conducted in March 1992 the veteran stated he had a hearing loss since 1954. The ears were noted to be normal. W. H. Boggan, M.D. reported in July 1992 that the veteran had been under his care for a number of years. He did not say exactly how long he treated the veteran but noted that prior to that time the veteran was under the care of another physician. The report reveals that at some point in time the veteran told Dr. Boggan that at the time of discharge (apparently referring to discharge from service) he had some difficulty hearing and some tinnitus and some chronic sinusitis. Dr. Boggan did not indicate that he specifically treated the veteran for defective hearing and he did not express an opinion that it was related to service. In the veteran's application for compensation, he reported a hearing test in the 1960's at the Veterans Administration Medical Center in Jackson, Mississippi. It was noted that he was an employee of that facility. In his notice of disagreement received in June 1992, the veteran again mentioned that he had been examined by a doctor in Jackson, Mississippi, in 1960. The veteran stated that that examination indicated that he had a hearing loss. He requested assistance in obtaining those records. In the July 1993 remand order the Board attempted to obtain these records. In September 1993 the VA medical facility reported that they had no such records of treatment of the veteran in the 1960s. Despite having undertaken additional development here, we must now restudy the record on the basis of the evidence, the law and regulations and precedent decisions of the United States Court of Veterans Appeals (Court). The appellant has presented no competent medical evidence to establish a direct, causal link between bilateral defective hearing, first clinically documented in 1992, and exposure to acoustic trauma in service in the early 1950s. He has offered nothing except his own unsupported opinion that there is such a relationship. As a layperson, however, he is not competent to offer an opinion on such a question involving medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App 91 (1993). In Bethea v. Derwinski, 2 Vet.App. 252 (1992), the Court held that a single-judge disposition of the Court is not binding in another case before a single-judge or panel; however, it may be cited or relied upon for any persuasiveness or reasoning it contains. In this context we cite the single-judge decision in Montgomery v. Brown, 4 Vet.App. 343 (1993). The reasoning is particularly applicable here. If service records do not show a claimed disability and there is no medical evidence to link a current disability with events in service or with a service- connected disability, the claim is not well-grounded. Although the Board has considered and denied the appeal on a ground different from that of the RO, that is, whether the appellant's claim was well-grounded rather than whether he is entitled to prevail on the merits, the appellant has not been prejudiced by this action. In assuming that the claim was well- grounded, the RO accorded the appellant greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). ORDER Evidence of a well-grounded claim seeking service connection for bilateral defective hearing, not having been submitted, the claim is dismissed. BRUCE E. HYMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.