BVA9505216 DOCKET NO. 90-52 349 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES Entitlement to service connection for a low back disorder, bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran has been certified as having served on active duty from May 1943 to October 1943, from November 1943 to November 1944 and from November 1944 to January 1945. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 1990 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus and found that a claim for service connection for a low back disorder had not been reopened. The case was remanded by the Board in January 1992. It was returned to the Board in December 1994. Service connection for a low back disorder was previously denied by the RO in May 1989. The veteran did not appeal this decision. Since that rating action, the veteran has been certified as having an additional period of active duty (November 1943- November 1944), which includes the time during which the veteran claimed to have initially injured his back. Under these circumstances, the Board believes that the claim should be reviewed on a de novo basis. In doing so, we find that we may proceed without prejudice to the veteran. His arguments have been strictly on the merits. See Bernard v. Brown, 4 Vet.App. 384 (1993). It is noted that service connection has recently been denied for post traumatic stress disorder (PTSD). The veteran's representative has apparently disagreed with that denial, but the matter has not been developed for appellate consideration and is not currently before the Board. It is also noted that the veteran and his representative have raised the issue of service connection for skin cancer. That issue has not been adjudicated. A rating decision of October 1994 indicates that the veteran was not claiming service connection for skin cancer, but the veteran's letter dated June 6, 1994, appears to indicate otherwise. The claim should be adjudicated. As it is not inextricably intertwined with the issues before the Board, it is referred to the RO for initial consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sustained an injury of his back while on active duty with the merchant marines. It is pointed out that he was rejected for further service only one month after his discharge from the merchant marines. It is also contended that his hearing loss and tinnitus were incurred during service. It is asserted that the veteran was exposed to the acoustic trauma of gun fire while on active duty. 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. 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 preponderance of the evidence is against the claim for service connection for a low back disorder. It is also the decision of the Board that the claims for service connection for hearing loss and tinnitus are not well-grounded, and the appeal as to these issues is dismissed. FINDINGS OF FACT 1. A low back disorder was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 2. The veteran has not submitted evidence of a plausible claim for service connection for hearing loss and tinnitus. CONCLUSIONS OF LAW 1. A low back disorder was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. The veteran has not submitted evidence of a well-grounded claim regarding service connection for hearing loss or tinnitus. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran has been certified as having served on active duty from May 1943 to October 1943, from November 1943 to November 1944 and from November to January 1945. Service medical records from the veteran's period of active duty are not available, despite numerous attempts by the RO to locate them. The veteran has submitted a copy of a certificate of fitness from the selective service system, dated in February 1945. This document indicates that the veteran had undergone a preinduction physical examination and was found to be rejected for service as physically unfit. The veteran has submitted a copy of a Seaman's Record of Medical Examinations and Hospital Admissions. This indicates that he was seen in Mobile (presumably Alabama) in August 1945. The reason for the examination or admission is not discernible. A report of medical evaluation by Sara Weisenberger, R.N., and Lawrence S. Schoen, Ph.D., dated in June 1987, indicates that the veteran was referred by his private doctor for evaluation of insomnia resulting from complaints of tinnitus. It was reported for clinical purposes that the onset of the tinnitus was 12 to 14 years earlier. The veteran was retired from employment at a steam generator plant. The onset of the tinnitus occurred during this employment. The diagnosis was disorder of initiating and maintaining sleep secondary to tinnitus and chronic back pain. In a letter, dated in July 1988, William B. Thompson, M.D., indicated that the veteran had been followed in his clinic since 1974 with intermittent episodes of low back difficulty that the veteran felt originated from a fall in October 1944 while in New Guinea as a Merchant Marine. The back problems had become progressive to the point that a laminectomy at L4 for spinal stenosis and an excision of an L4 disc protrusion was performed in March 1983. He had two additional surgical procedures, performed in February and May 1985, at L5, and another surgery at the same site in December 1987. A report of a consultation performed by Van Temple, M.D., dated in November 1987, shows an impression of lumbar and bilateral leg pain, worse on the left, secondary to spinal stenosis, segmental, L4 and L5 left, worse than right, secondary to a combination of perineural fibrosis, hypertrophic degenerative spine disease and possible recurrent herniated nucleus pulposus at either level. An examination was performed by VA in January 1989. On general physical examination, the veteran had decreased hearing and continuous tinnitus, bilaterally. On orthopedic examination, he stated that in 1944, while stationed in New Guinea, he fell on a barge landing on his back. His back and legs hurt for about 26 days. He said he was unable to return to his duties as an ordinary seaman. He said he was rejected for service in February 1945 and eventually worked for 38 years operating gauges for a power company until his retirement in 1985. He reported having had disc surgery in 1983, 1985 and 1987 when a spinal fusion was performed. The impression pending X-ray report was history of contusion to the back in service, subsequent disc surgery times four, with fusion and symptoms suggesting neuritis, possible stenosis and traumatic osteoarthritis. X-ray studies showed generalized osteoporosis, narrowing of the L4-L5 and L5 S1 disc spaces, evidence of spondylolisthesis of L4 over L5 and some degenerative changes at the facet joint at the L3-L4 and L4-L5 levels. A hearing was conducted at the RO in November 1990. The veteran testified concerning the circumstances surrounding his back injury in 1944 and that he was frequently exposed to acoustic trauma of gun fire in training exercises while on board his ship. He also stated that he did not remember the reason for which he was rejected for service in February 1945 or the reason for which he was seen at a Mobile, Alabama hospital in August 1945. He did say that he was not treated for his back disorder in service-- there was no doctor aboard--and was not treated until many years later (transcript, p. 7). II. Analysis A. Service Connection for a Back Disorder It is initially noted that the veteran's claim for service connection for a back condition is well grounded; that is, it is not inherently implausible. The veteran received the Merchant Marine Combat Bar for service on a ship which was engaged in direct enemy action. While he does not contend his back injury incurred in combat, his testimony should be considered "satisfactory lay ... evidence of service incurrence ... of such injury" by virtue of combat status under 38 U.S.C.A. § 1154(b) (West 1991). Thus, he has submitted evidence of injury in service and current disability, and his claim is well grounded 38 U.S.C.A. § 5107(a). It is also found that the facts relevant to the issue have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. Id. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran was found to be physically unfit for service in February 1945, one month after his last certified period of merchant marine service ended. However, the record does not show the condition or conditions that caused the unfitness for duty. The veteran himself cannot remember whether his back condition, hearing loss, tinnitus or some other condition caused him to be rejected for military service. Neither can he remember the condition, if any, for which he was seen at a Mobile hospital in August 1945. The record shows that the veteran began receiving treatment for a back condition in 1974. While the fact that he reported having had a back injury in 1944 increases his credibility concerning the incurrence of the injury, the failure to account for a lack of treatment for 30 years casts doubt on whether there is a relationship between the injury in service and the back pathology that eventually led to four surgical procedures. Where a condition noted during service is not shown to be chronic, and a veteran fails to account for a lengthy time period for which there is no clinical documentation of the disorder, he has failed to provide a demonstration of continuity of symptomatology and service connection is not warranted. Mense v. Derwinski, 1 Vet.App. 354 (1991). B. Service Connection for Hearing Loss and Tinnitus The threshold question to be answered concerning this issue is whether or not the veteran has presented evidence of a well- grounded claim; that is, one which is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). If he has not presented such a claim, his appeal must fail and there is no duty on the VA to assist him in the development of his claim because such additional development would be futile. Id. The veteran testified that he believed his hearing loss and tinnitus resulted from the sound of gunfire to which he was exposed as a merchant marine. However, as a layman he is incompetent to give an opinion requiring medical knowledge such as is involved in making diagnoses or explaining the etiology of a condition. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The record shows that he manifested tinnitus 12 to 14 years before he sought treatment for insomnia in 1987. At that time it was reported that the veteran worked in a steam generator plant with an implication that the tinnitus had resulted from that work environment. Hearing loss was not actually demonstrated until the VA examination in 1989 and sensorineural hearing loss has never been diagnosed. It should be emphasized that to be deemed well grounded, a claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Absent some evidence that the veteran manifests a hearing loss and tinnitus that resulted from military service, these claims are not well grounded and must be dismissed. The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER Service connection for a low back disorder is denied. Service connection for hearing loss and tinnitus is dismissed. J. E. DAY 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. 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.