Citation Nr: 0003159 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-17 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for residuals of left rib injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from April 1944 to April 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) denied entitlement to service connection for hearing loss and residuals of injury to the left ribs. The veteran has raised several claims that have not been adjudicated by the RO, including service connection for a heart disorder, head injury, back disorder, eye disorder, nervous disorder, and a prostate disorder, and entitlement to a total disability rating for compensation purposes based on individual unemployability. All of such issues are referred to the RO for appropriate action. FINDINGS OF FACT 1. The record contains no competent medical evidence that the veteran has current disability from hearing loss which is related to any disease or injury he incurred during his active military service. 2. The record contains no competent medical evidence that the veteran has current disability from residuals of injury to the left ribs which is related to any disease or injury he sustained during his active military service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hearing loss is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of entitlement to service connection for residuals of injury to the left ribs is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Also, 38 U.S.C.A. §§ 1101, 1110, 1112, and 1137 provide that where a veteran has served 90 days or more during a period of war or after December 31, 1946, and develops sensorineural hearing loss to a degree of disability of 10 percent or more within one year of separation from such service, such disease shall be presumed to have been incurred in service. The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have 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 which is meritorious on its own or is capable of substantiation. See Murphy v. Derwinski, Vet. App. 78, 81 (1990). The three elements of a well-grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. For the reasons discussed below, the Board finds that the veteran's claims for service connection for hearing loss and residuals of injury to the left ribs are not well grounded. Although the RO did not specifically state that it denied the veteran's claim for service connection for hearing loss on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet. App. 384 (1995) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied this claim on the merits, the Board concludes that denying the claim because it is not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of the claim included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. Where a claim is not well grounded it is incomplete, and the Department of Veterans Affairs (VA) is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the appellant of the necessary evidence in its notice of rating decision and in the statement of the case. The discussion below informs the veteran of the types of evidence lacking, and which he should submit for a well-grounded claim. Unlike the situation in Robinette, in this case the veteran has not advised VA of the existence of any particular evidence which, if obtained, would render his claim well- grounded. I. Hearing Loss The veteran contends that he has current disability from hearing loss as a result of a blow to the head he claims to have sustained in a fall during his active military service. His representative asserts that the hearing loss is due to noise exposure as a military policeman. The service medical records do not show that the veteran sustained a head injury during his active military service. At the time of a physical examination for separation from service, the veteran's hearing for whispered voice was 15/15 in both ears. No significant diseases, wounds, or injuries were noted. The veteran has submitted records of treatment by a private physician which span a period from 1956 to 1990. Such records do not show complaints, diagnoses, or treatment of hearing loss. The VA outpatient treatment records contained in the claims file are similarly devoid of indications of complaints, diagnoses, or treatment of hearing loss. The veteran has reported that he wears hearing aids. Hearing loss disability is specifically defined at 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired 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. Without such findings, the Board must conclude that the record does not contain competent evidence of current hearing loss disability. In testimony and written statements, the veteran has attributed his claimed current disability from hearing loss to an in-service fall on ice during which he struck his head. The Board has considered his testimony and the records. The veteran is competent to testify that he sustained injuries after slipping on ice during his active military service. However, in the absence of evidence that he has the expertise to render opinions about the etiology of his claimed hearing loss, his assertions that his claimed hearing loss is related to an in-service injury are afforded no probative weight. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board finds that the record contains no competent medical evidence that the veteran has current disability from hearing loss or that such hearing loss is related to any disease or injury during his active military service. The Board concludes that the claim for service connection for hearing loss is not well grounded. II. Left Rib Fracture Service medical records show that the veteran was treated for left side rib pain in February 1945. His chest was strapped. Five days later, he complained of right side rib pain. On examination, some tenderness was noted. He was treated with strapping. At the time of a medical examination for separation from service in April 1946, an examiner noted that the veteran had not had any significant injuries and had no musculoskeletal defects. The Board has reviewed the entire record, including the transcript of the veteran's testimony at the RO and records of private and VA medical treatment since the veteran's separation from service. A thorough review of the record yields no competent medical evidence that the veteran has current disability which is a residual an injury to his left ribs during his active military service. The first and third elements of the Caluza analysis are not satisfied. The Board concludes that the claim for service connection for residuals of injury to the left ribs is not well grounded. ORDER Service connection is denied for hearing loss and residuals of injury to the left ribs. MARY GALLAGHER Member, Board of Veterans' Appeals