Citation Nr: 0003028	
Decision Date: 02/07/00    Archive Date: 02/10/00

DOCKET NO.  98-18 370	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama



THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for low back pain.

3.  Entitlement to service connection for left arm condition.

4.  Entitlement to service connection for inguinal hernias.



REPRESENTATION

Appellant represented by:	The American Legion





INTRODUCTION

The veteran served on active duty from January 1955 to 
December 1956 and from January 1962 to August 1962.

This matter comes before the Board of Veterans' Appeals 
(Board) from a September 1998 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama, which denied service connection for 
hearing loss; for low back pain; for left arm condition; and 
for inguinal hernias.


FINDINGS OF FACT

1.  No medical evidence has been presented or secured to 
render plausible a claim that the veteran currently has 
bilateral hearing loss or that a current bilateral hearing 
loss, if any, is the result of a disease or injury incurred 
in active service.

2.  No medical evidence has been presented or secured to 
render plausible a claim that the veteran currently has an 
underlying back condition or other current disability that is 
manifested by low back pain or that a low back disability, if 
any, or a current complaint of low back pain is the result of 
a disease or injury incurred in active service.

3.  A fracture deformity of the left elbow with 10 percent 
loss of extension was noted on an induction examination 
January 1955 at the time the veteran entered onto active 
duty.

4.  No medical evidence has been presented or secured to 
render plausible a claim that a current left arm condition, 
if any, is the result of a disease or injury incurred in 
active service or that a preexisting fracture deformity of 
the left elbow underwent an increase in severity during 
service.

5.  The veteran underwent surgeries for a right inguinal 
hernia in 1983 and a left inguinal hernia in 1994.

6.  No medical evidence has been presented or secured to 
render plausible a claim that a current residual disability, 
if any, of surgical repairs for inguinal hernias in 1983 and 
1994 is the result of a disease or injury incurred in active 
service.


CONCLUSION OF LAW

The claims for service connection for hearing loss; for low 
back pain; for left arm condition; and for inguinal hernias 
are not well grounded, and therefore there is no statutory 
duty to assist the appellant in developing facts pertinent to 
these claims.  38 U.S.C.A. § 5107(a) (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In general, establishing service connection for a disability 
requires the existence of a current disability and a 
relationship or connection between that disability and a 
disease or injury incurred in service.  38 U.S.C.A. § 1110 
(West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. 
Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 
2 Vet. App. 141, 143 (1992).  Alternatively, under 38 C.F.R. 
§ 3.303(b), service connection may be awarded for a 
"chronic" condition when (1) a chronic disease manifests 
itself in service and is identified as such in service (or 
within the presumption period under 38 C.F.R. § 3.307) and 
the veteran presently has the same condition; or (2) a 
disease manifests itself during service (or during the 
presumptive period) but is not identified until later, there 
is a showing of continuity of symptomatology after discharge, 
and medical evidence relates the symptomatology to the 
veteran's present condition.  Rose v. West, 11 Vet. App. 169, 
171 (1998); see Savage v. Gober, 10 Vet. App. 488, 495-98 
(1997).  Service connection for a disability may also be 
established based on aggravation of disease or injury which 
preexisted service when there is an increase in disability 
during service unless the increase is due to the natural 
progress of the disease.  38 C.F.R. § 3.306(a) (1999).

Establishing service connection for a disability based on 
aggravation requires (1) evidence sufficient to show that a 
disease or injury preexisted service; (2) evidence showing an 
increase in disability during service sufficient to raise a 
presumption of aggravation of the disability; and (3) a lack 
of clear and unmistakable evidence to rebut the presumption 
of aggravation which may include evidence showing that the 
increase in severity was due to the natural progress of the 
disability.  38 C.F.R. § 3.306(b) (1999).  Concerning Item 
(1), a disorder may be shown to have preexisted service if it 
is noted at entrance into service or where clear and 
unmistakable evidence rebuts a legal presumption of sound 
condition at entrance for disorders not noted at entrance.  
History provided by the veteran of the preservice existence 
of conditions recorded at the time of the entrance 
examination does not, in itself, constitute a notation of a 
preexisting condition.  38 C.F.R. §§ 3.304(b)(1) (1999); 
Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. 
Brown, 7 Vet. App. 238, 246 (1995).

The appellant has 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) (West 1991).  A well-grounded claim is "a 
plausible claim, one that is meritorious on its own or 
capable of substantiation."  Robinette v. Brown, 8 Vet. 
App. 69, 73-74 (1995); Murphy v. Derwinski, 1 Vet. App. 78, 
81 (1990); see also Johnson v. Brown, 8 Vet. App. 423, 426-27 
(1995) (applying well-grounded claim requirement in context 
of service connection for cause of veteran's death).  If the 
appellant has not presented a well-grounded claim, then the 
appeal fails as to that claim, and the Board is not obligated 
under 38 U.S.C.A. § 5107(a) to assist him any further in the 
development of that claim.  Murphy, 1 Vet. App. at 81; see 
Morton v. West, 12 Vet. App. 477 (1999).  The type of 
evidence required to make a claim well grounded depends upon 
the issue presented by the claim.  If the determinative issue 
turns on a question of medical causation or diagnosis, 
competent medical evidence is required to state a plausible 
claim.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing 
Murphy, 1 Vet. App. at 81).  The appellant cannot meet his 
initial burden under 38 U.S.C.A. § 5107(a) simply by relying 
on his own opinion as to medical causation; lay persons are 
not competent to offer medical opinions.  Grottveit, 5 Vet. 
App. at 93 (citing Espiritu v. Derwinski, 2 Vet. App. 492 
(1992)).

Evidence submitted in support of a claim "must . . . be 
accepted as true for the purpose of determining whether the 
claim is well grounded . . . [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).  
Competency of evidence differs from weight and credibility.  
The former is a legal concept determining whether testimony 
may be heard and considered by the trier of fact, while the 
later is a factual determination going to the probative value 
of the evidence to be made after the evidence has been 
admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno 
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may 
affect the credibility of testimony, it does not affect 
competency to testify.").

The existence of a current disability is the cornerstone of a 
claim for VA disability compensation.  38 U.S.C.A. § 1110, 
1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328 
(1997) (holding that Secretary's and Court's interpretation 
of sections 1110 and 1131 of the statute as requiring the 
existence of a present disability for VA compensation 
purposes cannot be considered arbitrary and therefore the 
decision based on that interpretation must be affirmed); see 
also Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 
2 Vet. App. 141, 143 (1992).  The veteran has the burden to 
bring evidence to render plausible the existence of the 
disability for which he is claiming service connection in 
order to establish a well grounded claim.  Until he does, the 
VA does not have the duty to assist him in developing facts 
pertinent to his claim, including assisting him by affording 
him a medical examination at VA expense.  38 U.S.C.A. 
§ 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136, 
139-40 (1994) (noting that "implausible claims should not 
consume the limited resources of the VA and force into even 
greater backlog and delay those claims which . . . require 
adjudication.").

For claims for service connection for hearing loss or 
impairment, VA has specifically defined what is meant by a 
"disability" for the purposes of service connection.  38 
C.F.R. § 3.385 (1999).  "[I]mpaired hearing will be 
considered to be a disability when the auditory threshold in 
any of the frequencies 500, 1000, 2000, 3000, 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).

In addition to the service medical records, private medical 
records dating from the 1970's to the 1990's are in the 
claims file.  In this case, no medical evidence has been 
presented or secured to render plausible a claim that the 
veteran currently has bilateral hearing loss, including a 
hearing loss that meets the requirements of section 3.385 of 
VA regulations, or that a current bilateral hearing loss, if 
any, is the result of a disease or injury incurred in active 
service.  Accordingly, the Board concludes that the claim for 
service connection for bilateral hearing loss is not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).  

Similarly, no medical evidence has been presented or secured 
to render plausible a claim that the veteran currently has an 
underlying back condition or other current disability that is 
manifested by low back pain or that a current low back 
disability, if any, or a current complaint of low back pain 
is the result of a disease or injury incurred in active 
service.  Some complaints of low back pain associated with 
treatment for kidney and/or ureteral stones are shown in the 
private medical records dated in the 1980s.  The veteran has 
asserted his own belief that his current low back pain is the 
result of a motor vehicle accident in active service.  
However, because no medical evidence has been presented or 
secured to render plausible a claim that a current low back 
disability, if any, or a current complaint of low back pain 
is the result of a disease or injury incurred in active 
service, the Board concludes that the claim for service 
connection for low back pain is not well grounded.  
38 U.S.C.A. § 5107(a) (West 1991).  

A fracture deformity of the left elbow with 10 percent loss 
of extension was noted on an induction examination January 
1955 at the time the veteran entered onto active duty.  
However, no medical evidence has been presented or secured to 
render plausible a claim that a current left arm condition, 
if any, is the result of a disease or injury incurred in 
active service or that a preexisting fracture deformity of 
the left elbow underwent an increase in severity during 
service.  Concerning the latter, the Board notes that, on a 
January 1962 examination report, an examiner noted the same 
10 degree limitation of extension as was noted in January 
1955.  Accordingly, the Board concludes that the claim for 
service connection for a left arm condition is not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).  

Private medical records show that the veteran underwent 
surgeries for a right inguinal hernia in 1983 and a left 
inguinal hernia in 1994.  No medical evidence has been 
presented or secured to render plausible a claim that a 
current residual disability, if any, of surgical repairs for 
inguinal hernias in 1983 and 1994 is the result of a disease 
or injury incurred in active service.  Accordingly, the Board 
concludes that the claim for service connection for inguinal 
hernias is not well grounded.  38 U.S.C.A. § 5107(a) (West 
1991).

Although the RO did not specifically state that it denied 
service connection for the claims on the basis that they were 
not well grounded, the Board concludes that the appellant is 
not prejudiced by the Board's denial of the claim on this 
basis because, in assuming that the claims were well 
grounded, the RO accorded the appellant greater consideration 
than the claims warranted under the circumstances.  Bernard 
v. Brown, 4 Vet. App. 384, 392-94 (1993); see Edenfield v. 
Brown, 8 Vet. App 384 (1995) (en banc) (when the Board 
decision disallowed a claim on the merits where the Court 
finds the claim to be not well grounded, the appropriate 
remedy is to affirm, rather than vacate, the Board's 
decision, on the basis of nonprejudicial error); VAOPGCPREC 
16-92 at 7-10 (July 24, 1992).

Where a claim is not well grounded, VA does not have a 
statutory duty to assist a claimant in developing facts 
pertinent to the claim, but VA may be obligated under 
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed 
to complete his application.  This obligation depends on the 
particular facts of the case and the extent to which the 
Secretary has advised the claimant of the evidence necessary 
to be submitted with a VA benefits claim.  Robinette v. 
Brown, 8 Vet. App. 69, 78 (1995).  Here, unlike the situation 
in Robinette, the appellant has not put the VA on notice of 
the existence of any specific, particular piece of evidence 
that, if submitted, could make the claims for service 
connection well grounded.  See also Epps v. Brown, 9 Vet. 
App. 341 (1996).  Accordingly, the Board concludes that VA 
did not fail to meet its obligations under 38 U.S.C.A. 
§ 5103(a) (West 1991).


ORDER

Service connection for hearing loss; for low back pain; for 
left arm condition; and for inguinal hernias is denied.



		
	KATHLEEN K. GALLAGHER
	Acting Member, Board of Veterans' Appeals