Citation Nr: 0001819 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 95-05 956 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES Entitlement to service connection for left ear hearing loss. Entitlement to service connection for visual loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from August 1965 to May 1968 and from February 1969 to January 1993. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a July 1994 RO rating decision that denied service connection for bilateral hearing loss and visual loss, and granted service connection for avascular necrosis of the left hip and assigned a zero percent rating for this condition. A December 1994 RO rating decision denied service connection for hypogammaglobulinemia and the veteran submitted a notice of disagreement with this determination in February 1995. In March 1999, a statement of the case was sent to the veteran and his representative. They did not perfect the appeal with this issue by submitting a substantive appeal and it is not a matter for appellate consideration. 38 U.S.C.A. § 7105 (West 1991). A February 1997 Board decision granted an increased evaluation of 10 percent for the avascular necrosis of the left hip and remanded the issues of service connection for bilateral hearing loss and visual loss to the RO for additional development. A March 1999 RO rating decision granted service connection for right ear hearing loss and this matter is no longer an issue for appellate consideration. This issue of entitlement to service connection for visual loss will be addressed in the remand portion of this decision. FINDING OF FACT The veteran has not submitted competent (medical) evidence showing the presence of left ear hearing loss. CONCLUSION OF LAW The claim for service connection for left ear hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim for service connection for left ear hearing loss; that is, evidence which shows that this claim is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such a claim, his appeal must, as a matter of law, be denied, and there is no duty on VA to assist him further in the development of the claim. Murphy at 81. "The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court")" has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. 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 as secondary to a disability which has already been service-connected. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis) ...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony), ...; and of a nexus between the inservice injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). Where sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). Service medical records show that the veteran underwent various audiometric tests. The reports of these tests and the other service medical records do not show left ear hearing loss. The service medical records are negative for left ear hearing loss. In February 1997, the Board remanded the case to the RO for additional development, including a VA audiological evaluation to determine the nature and severity of any left ear hearing loss. On the authorized audiological evaluation in October 1998, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 5 0 10 10 20 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. The report of this evaluation does not show left ear hearing loss and a VA ear examination in October 1998 did not show left ear hearing loss. A claim for service connection for a disability is not well grounded where there is no medical evidence of the claimed disability. Caluza, 7 Vet. App. 498. Statements from the veteran are to the effect that he has left ear hearing loss due to exposure to loud noises in service, but this lay evidence is not sufficient to demonstrate the presence of the claimed disability. Espiritu v. Derwinski, 2 Vet. App. 498 (1992). In this case, there is no competent (medical) evidence showing that the veteran currently has left ear hearing loss. Hence, his claim for service connection for this disability is not plausible, and it is denied as not well grounded. The Board notes that the RO denied the claim for service connection for left ear hearing loss on the merits and finds no prejudice to the veteran in appellate denial of the claim as not well grounded. Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER The claim for service connection for left ear hearing loss is denied as not well grounded. REMAND In the February 1997 remand the Board requested the scheduling of the veteran for a VA eye examination to determine the nature and extent of his eye problems, and to obtain opinions as to the etiology of any eye disorders found. The veteran underwent the requested eye examination in October 1998 and the examiner noted that the veteran had been given a consultation to return to the medical facility in order to have disc photos and formal Humphrey visual field evaluation. The examiner noted that an addendum to the report of this eye examination would be prepared following review of the Humphrey visual field and optic nerve photos. The reports of the Humphrey visual field and optic nerve photos are not included in the claims folders, and this relevant evidence should be obtained and reviewed by the examiner who conducted the February 1997 eye examination for expressions of opinions as requested in the February 1997 Board remand. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991); Stegall v. West, 11 Vet. App. 268 (1998). . In view of the above, the case is REMANDED to the RO for the following actions: 1. The reports of any Humphrey visual field and optic nerve photos should be obtained for inclusion in the veteran's claims folders. 2. After the above development, the veteran's claims folders with the report of the veteran's VA eye examination in October 1998 should be returned to the examiner who conducted this examination or other appropriate physician for the preparation of an addendum that includes opinions as to the etiology of the veteran's current eye disorders. 3. After the above actions, the RO should review the claim for service connection for visual loss. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his representative. The veteran and his representative should be afforded an opportunity to respond to the supplemental statement of the case before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. R. E. Smith Acting Member, Board of Veterans' Appeals