Citation Nr: 0002858 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-04 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from January 1949 to October 1952. The record shows that his decorations included the Presidential Unit Citation with one star. It also shows that he participated in several campaigns in addition to operations against enemy forces in south and central Korea. The Board of Veterans' Appeals (Board) received this case on appeal from a January 1998 decision of the RO, which, in part, denied the veteran's claims of service connection for bilateral hearing loss and post-traumatic stress disorder (PTSD). The veteran subsequently timely perfected an appeal as to these issues. However, in October 1999, the veteran submitted a withdrawal of his appeal as to the claim of service connection for PTSD. The appeal as to that issue is therefore withdrawn and the only issue currently before the Board on appeal is as listed on the previous page. See 38 C.F.R. §§ 20.202, 20.204 (1999). The veteran claims that he is entitled to service connection for tinnitus. However, this issue has not been adjudicated by the RO and is thus referred to the RO for initial consideration. FINDING OF FACT No competent evidence has been presented to show that the veteran currently has bilateral hearing disability due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for bilateral hearing loss has not been presented. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background A careful review of the veteran's service medical records shows that, on entrance examination in January 1949, the veteran's ears were reported to be normal and his hearing was reported to measure 15/15, bilaterally. The veteran indicated that he had never had running ears. On discharge examination in September 1952, the veteran's ears were reported to be clinically normal. His hearing was reported to measure 15/15, bilaterally. Received in September 1997 was the veteran's Certificate of General Discharge, which revealed that his Military Occupational Specialty (MOS) was a mortar gunner. On a VA audio examination in December 1997, the veteran reported that he had had difficulty with hearing, especially for the previous four to five years. He indicated that he had had hearing loss in his left ear when he was in service in 1951. He reported that, in 1951, he had sustained a concussion from an explosion. He reported that he had been unable to hear for approximately five days and that he had had hearing loss in his left ear since that time. The veteran reported that hearing in his right ear had returned following the explosion. He indicated that he had been a gunner and had been exposed to mortar fire on many occasions as well as grenades and explosives. He reported that he had had significant occupational noise exposure for 15 to 16 years while using a chain saw to remove trees. He reported that he was a recreational hunter. The veteran was reported to have bilateral tinnitus that had its onset in 1951. He was reported to have a periodic humming sound that had negligible severity and effect on his daily life. The veteran indicated that the noise was noticeably loud and seemed to be mid-pitched. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 50 65 LEFT 50 55 55 50 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 64 percent in the left ear. The veteran was diagnosed as having normal hearing in the lower and mid frequencies, bilaterally. In the right ear, he was reported to have a mild nerve loss at 2000 Hertz and a moderate sensorineural hearing loss for the remaining frequencies at 3000 to 8000 Hertz. In the left ear, the veteran was reported to have moderate to severe sensorineural hearing loss across the frequency range. The examiner indicated that the veteran reported having hearing loss in the left ear at an early age. During a hearing before the undersigned Member of the Board in October 1999, the veteran reported that his current bilateral hearing loss and tinnitus were the direct result of high noise exposure in service. He reported that, in 1951, he received a concussion from an explosion and was unable to hear for several hours as a result of the explosion. He reported that he had had a humming in his ears. He indicated that, as a gunner in service, he had been exposed to mortar fire, grenades and other explosives on a continuous basis. The veteran reported that he had had people tell him that he had had trouble with hearing, but that he had not sought treatment or evaluation for it until 1997. He indicated that, following his discharge from service, he had worked for 10 to 12 years in the tree removal business and had used a chain saw. II. Analysis Service connection may be granted for a disability resulting from a disease or injury which was incurred or aggravated during active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). The regulations also provide that service connection may be granted for any 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) (1999). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may establish direct service connection for hearing loss if evidence shows that a hearing loss is causally related to an injury or disease incurred during active service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The threshold question to be answered is whether the veteran has presented a well-grounded (i.e., plausible) claim. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order to show that a claim for service connection is well grounded, there must be competent evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). Although the claim need not be conclusive, it must be accompanied by evidence, not just allegations, in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). The evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.304(d) (1999). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.304(d) (1999). This provision does not establish a presumption of service connection, but eases the burden of demonstrating the occurrence of some inservice incident to which the current disability may be connected. Collette, 82 F.3d at 392; see also Caluza, 7 Vet. App. at 507 (holding that 38 C.F.R. § 1154(b) relaxes the evidentiary standards as to the service incurrence requirement to well ground a claim). The veteran contends, in essence, that he currently has bilateral hearing loss due to acoustic trauma in service. He claims that, as a mortar gunner in service, he was exposed to mortar fire, grenades and explosives and had lost his hearing for several hours after sustaining a concussion from an explosion. However, the service medical records show that, on discharge examination in September 1952, the veteran's ears were reported to be clinically normal and his hearing measured 15/15, bilaterally. There was no report of complaint, treatment or diagnosis of a hearing loss disability. On VA examination in December 1997, the veteran was shown to have a current hearing loss disability pursuant to 38 C.F.R. § 3.385 (1999). The Board is cognizant of the veteran's assertions regarding his current bilateral hearing loss disability. However, he has presented no objective evidence of a nexus between any currently demonstrated hearing loss disability and a disease or injury incurred in or aggravated by service. Although the examiner on VA examination in December 1997 reported that the veteran had tinnitus that had its onset in 1951, there was no indication that the veteran's bilateral hearing loss disability was incurred in or aggravated by service. The service medical records, in fact, reported that the veteran's hearing was normal. Also, there is also no demonstrated continuity of symptomatology of bilateral hearing loss since service. In fact, as noted hereinabove, the service medical records reported no complaint, treatment or diagnosis of a hearing loss disability and the veteran, himself, acknowledged that he had not received treatment or evaluation of his ears until 1997. Lay assertions concerning questions of medical diagnosis or causation cannot constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1992); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent competent medical evidence of linkage to service, even considering the precepts of 38 U.S.C.A. § 1154(b) concerning combat veterans, the veteran's claim of service connection for bilateral hearing loss must be denied as not well grounded. Caluza, supra (claim of service connection denied as not well grounded when the veteran failed to present evidence as to medical causality, even with consideration of 38 U.S.C.A. § 1154(b)). In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. VA, however, may be obligated under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required in this case. The veteran has not put VA on notice that competent evidence exists that supports his claim that he currently has bilateral hearing loss due to disease or injury which was incurred in or aggravated by service. Consequently, the RO has met its burden under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) by informing the veteran of the evidence necessary to complete his application for benefits. By this decision, the Board is informing the veteran of the evidence necessary to make his claim well grounded. ORDER Service connection for bilateral hearing loss is denied, as a well-grounded claim has not been submitted. D. C. Spickler Member, Board of Veterans' Appeals