BVA9505003 DOCKET NO. 93-16 746 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hearing loss disability and tinnitus. ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran-appellant served in the active military service from June 1946 to June 1963 and from June 1963 to June 1966. This appeal arose subsequent to a March 1993 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the veteran requested that VA provide him a hearing aid. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during service he developed hearing loss in the left ear which has progressed over the years and that tinnitus started in 1970. He claims that during at least two annual physical examinations in service he was told that he had significant hearing loss at about 5000 Hz and that he remembers seeing an audiogram which reflected a hearing notch in the left ear at around 5000 Hz. He states that an ear, nose and throat (ENT) specialist who examined him in 1978 told him that his hearing loss was service related. He questions the completeness of the medical records reviewed by the VA. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the claims of service connection for hearing loss disability and tinnitus are not well-grounded. FINDING OF FACT The veteran has not submitted medical evidence of any nexus between current hearing loss disability in each ear and tinnitus to any disease or injury incurred during service to justify a belief by a fair and impartial individual that the claims are well-grounded. CONCLUSION OF LAW The claims of hearing loss disability and tinnitus are not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background During the veteran's Army career, he was in the Ordnance Corps and during his years in the Air Force he worked as a physicist. The available service medical records, beginning in 1951, are void of any reference to treatment or diagnosis of hearing loss disability or tinnitus. The records do disclose that on annual physical examinations from 1958 to 1961, hearing measured by whispered and spoken voice was 15/15 in each ear. On audiometric testing in February 1963*, hearing levels were: HERTZ 500 1000 2000 3000 4000 RIGHT 5(20) 5(15) 5(15) -------- 10(15) LEFT -5(10) -5(5) 0(10) -------- 20(25) On audiometric testing in February 1965*, hearing levels were: HERTZ 500 1000 2000 3000 4000 RIGHT -10(5) -10(0) -10(0) -10(0) 0(5) LEFT -5(10) -5(5) -5(5) -5(5) 20(25) On audiometric testing in February 1966*, hearing levels were: HERTZ 500 1000 2000 3000 4000 RIGHT 15(30) 10(20) 5(15) -5(5) 10(15) LEFT 5(20) 10(20) 10(20) 10(20) 30(35) *[Prior to November 1967, the service department reported audiometric test results under American Standard Associates (ASA) values. The Department of Defense adopted the International Standards Organization (ISO) values in November 1967. In July 1966, the VA adopted the ISO standard -- the standard applied in 38 C.F.R. § 3.385. The scores in parentheses represent the conversion from the ASA to the ISO values.] In a December 1992 statement, the veteran reported that in 1978 he was examined by an ENT specialist who informed him that his hearing loss was service related. In a January 1993 statement, the veteran indicated that he was unable to locate the ENT specialist. He did submit copies of audiometric tests under ISO standards dated in 1972, 1976, 1977, and 1979. The results for the left ear show tracings in the area of the 40 decibel threshold at 3000 and 4000 Hertz beginning in 1972. The threshold levels for the right ear were all below 40 decibels at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz and thresholds for at least three of the frequencies were 25 decibels or less. On VA audiological examination in January 1993, the veteran reported that tinnitus started about 10 years previously. He gave a history of exposure to machine gun fire for several days in service after which he noted pain and ringing in his left ear and progressive hearing loss since then. Audiometric testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 50 60 LEFT 25 15 40 50 60 Speech discrimination scores were 90 percent bilaterally. Audiologic evaluation indicated mild to moderately severe sensorineural hearing loss above 1500 Hz in the left ear. The impressions were right and left ear sensorineural hearing loss and bilateral tinnitus. Analysis To establish service connection, a veteran must show either that the disability was present coincident with service or aggravated during service or manifested to a degree of 10 percent or more within the one-year presumptive period and exists today or that a current disability resulted from a disease or injury incurred in service, even if that disease or injury was not manifested during service. See 38 U.S.C.A. §§ 1110, 1112, 1113(b), 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303(a)-(d), 3.307 (1994). Entitlement to service connection for hearing loss disability is subject to the additional requirements of 38 C.F.R. § 3.385 (effective in 1990), providing, in pertinent part, that hearing status shall not be considered service-connected when the thresholds for frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are all less than 40 decibels and at least three of these frequencies are 25 decibels or less. During the pendency of this appeal VA published a final, amended 38 C.F.R. § 3.385. See 59 Fed. Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385). The United States Court of Veterans Appeals (Court) and VA are required to apply a regulation adopted during the pendency of a case when the new regulation is more favorable to a claimant, unless the Secretary of VA has specified to the contrary. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). In Heuer v. Brown, No. 93-993 (U.S. Vet. App. Feb. 7, 1995), the Court found that the Secretary had not so specified and then held that the application of the 1994 amended 38 C.F.R. § 3.385 would not be more favorable to the veteran and thus the 1990 version of § 3.385 was applicable. In other words, in pertinent part, hearing loss does not constitute disability for VA purposes when the thresholds levels at 500, 1000, 2000, 3000, and 4000 Hertz are all less than 40 decibels and at least three of these frequencies are 25 decibels or less. As a preliminary matter, however, one claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Court has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In determining whether a claim is well-grounded the supporting evidence is presumed true. Also, an evidentiary assertion is presumed true insofar as the assertion is within the competence of the person making it. King v. Brown, 5 Vet.App. 19, 21 (1993). And where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded requirement of § 5107(a). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Against this background, the Board must decide whether supporting evidence satisfies the requirements for a well-grounded claim. In the veteran's case, the service medical records do not contain any record of history or treatment for hearing problems, including tinnitus. On the basis of the audiometric testing, under the standards established by the 1990 version of 38 C.F.R. § 3.385, there was no indication of hearing disability for VA purposes during service as all the scores of the test frequencies were below 40 decibels and at least three of these frequencies were 25 decibels or less. After service, left ear hearing disability for VA purposes (40 decibels or greater threshold of the test frequencies) was first documented on audiometric testing beginning in 1972, six years after service. The same tests for the right ear revealed no such hearing disability as thresholds were all below 40 decibels and thresholds for at least three of the frequencies were 25 decibels or less. The left ear hearing disability for VA purposes was then confirmed on VA audiometric testing in 1993. The same test revealed right ear hearing disability, more than 20 years after service, for VA purposes with threshold values of 40 decibels or greater at two test frequencies. The presence of tinnitus was also reported for the first time as was the veteran's history of tinnitus starting 10 years previously. The diagnostic impressions were left and right ear sensorineural hearing loss and tinnitus. This evidence does not establish claims which are meritorious on their own as it opposes, rather than supports, the proposition that hearing loss disability and tinnitus were present coincident with service or that hearing loss disability, identified as sensorineural hearing loss, was manifested to a degree of 10 percent or more within the one-year presumptive period following separation from service. Where as here, there is no evidence of the veteran's hearing disability for VA purposes or tinnitus until years after separation from service, service connection may be established on the basis of medical evidence showing or tending to show that the current hearing loss disability or tinnitus is causally related to injury or disease suffered in service, even if that disease or injury was not manifested during service, as here, See Hensley v. Brown, 5 Vet.App. 155, 158-160 (1993). Stated differently are the claims capable of substantiation, i.e., are the current disabilities, shown years after service, the result of disease or injury incurred in service? On this point , the evidence consists of the veteran's statement that an ENT specialist told him that his hearing loss was related to service. In Robinette v. Brown, No. 93-985 (U.S. Vet.App. Sept. 12, 1994), reconsideration granted in part on other grounds (Oct. 21, 1994) (per curiam), the Court held that the connection between what a layman's account of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence to render the claim well-grounded. The Board, therefore, must reject this statement as probative of a well- grounded claim for hearing loss disability. As for the veteran's evidentiary assertion that he developed hearing loss in service, such an opinion involves medical etiology and competent medical evidence is required to fulfill the well-grounded requirement of § 5107(a). Grottveit. As there is no competent medical evidence linking the veteran's current hearing loss disability or tinnitus to any inservice injury or disease, the claims are not plausible and, therefore, not well-grounded. As the claims are not well-grounded, VA's duty to assist the veteran in developing the facts pertinent to the claims is not triggered. And since the Board's decision does not reach the merits of the claim, it is not deemed a final decision of the Board and allows the veteran to begin, if he can, on a "clean slate". Grottveit at 93. Competent medical evidence tending to show that the veteran's hearing loss disability is related to service would be sufficient to establish a well-grounded claim. ORDER The veteran's application for service connection for a hearing loss disability and tinnitus is dismissed. (Continued on next page) THOMAS J. DANNAHER 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.