Citation Nr: 0000687 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 94-22 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for primary lateral sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from June 1949 to June 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Boise, Idaho, Regional Office (RO). The veteran filed a claim dated in September 1991 for service connection for bilateral hearing loss. In an October 1991 rating decision, the RO denied the veteran's claim. The veteran filed a timely notice of disagreement dated in March 1992, and a statement of the case was issued in April 1992. A substantive appeal was filed in July 1992. Following the submission of additional evidence, the RO again denied service connection for bilateral hearing loss in a rating decision dated in September 1992. A supplemental statement of the case was issued in September 1992 and in February 1993. The issue was certified for appeal by the RO in April 1993. In a July 1997 decision, the Board remanded the issue of service connection for bilateral hearing loss for a medical examination. In a May 1998 supplemental statement of the case, the RO again denied the veteran's claim for service connection for bilateral hearing loss. The issue has now been returned to the Board for consideration. Additionally, the issue of entitlement to service connection for primary lateral sclerosis is before the Board on appeal of a May 1998 rating decision from the VARO, which denied entitlement to service connection for primary lateral sclerosis. In May 1999, the Board requested the opinion of an Independent Medical Expert (IME). See 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1999). The opinion was received in December 1999; the veteran's representative was afforded an opportunity to respond and filed a response dated January 3, 2000. FINDINGS OF FACT 1. Competent medical evidence of a nexus between the veteran's current bilateral hearing loss and any incident of service has not been presented. 2. The medical evidence indicates that primary lateral sclerosis may not be disassociated from nocturnal leg cramps first observed during service. CONCLUSIONS OF LAW 1. The claim for service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Primary lateral sclerosis was incurred in service. 38 U.S.C.A. § 1110, 1111, 1131, 1132, 5107 (West 1991); 38 C.F.R. § 3.102, 3.303, 3.304(b) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially review the factual background of this case. The relevant law and VA regulations will then be discussed. Finally, the Board will analyze the veteran's claims and render a decision. Factual Background Service medical records reflect that upon enlistment examination dated in June 1949, the veteran's systems were clinically evaluated as normal. Whispered voice testing revealed hearing of 15/15 bilaterally. Upon reenlistment examination dated in June 1952, the veteran was clinically evaluated as normal with the exception of enucleated tonsils. Whispered voice testing revealed hearing of 15/15 bilaterally. Upon reenlistment examination dated in June 1958, audiometric testing yielded the following results (following conversion from American Standards Association (ASA) units to International Standards Organization (ISO) units): HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 15 15 20 20 25 20 10 20 LEFT 20 15 10 25 20 15 25 25 Whispered voice testing revealed hearing 15/15 bilaterally. The veteran's systems were clinically evaluated as normal with the exception of enucleated tonsils, left herniorrhaphy, scars, and birthmarks. A clinical record dated in December 1960 reflects a complaint of pain in the right ear. Upon examination a small growth on the external surface of the right ear canal was noted. An impression of furuncle was noted. Upon periodic examination dated in May 1965, audiometric testing yielded the following results (following conversion from ASA units to ISO units): HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 15 10 15 15 15 20 LEFT 15 10 15 15 15 30 Occasional non-incapacitating cramps in the legs were noted as well as occasional non-incapacitating pain in the right ear. The examiner noted no otorrhea was observed. Upon isolated duty examination dated in January 1966, non- disabling nocturnal leg cramps were noted. Audiometric testing revealed pure tone thresholds, in decibels, as follows (following conversion from ASA units to ISO units): HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 30 20 25 35 30 35 LEFT 25 20 20 35 30 45 Upon retirement examination dated in November 1968, the veteran's systems were clinically evaluated as normal with the exception of enucleated tonsils and a herniorrhaphy scar. Audiometric testing revealed pure tone thresholds, in decibels, as follows (following conversion from ASA units to ISO units): HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 20 15 15 35 30 40 LEFT 20 15 15 25 25 30 The veteran complained of cramps in his legs. The veteran indicated he was not and had not suffered from hearing loss, ear trouble, or running ears. Relevant post-service outpatient treatment records dated from April 1972 to June 1992 reflect complaints of right-sided clumsiness, stumbling, weakness, and giveaway. A diagnosis of primary lateral sclerosis and spinal/spinocerebellar degeneration was noted in May 1988. Clinical records reflect notations of right foot drop and obvious right leg circumduction with arm swing. Atrophy in the right forearm, quadriceps, and calf was also noted. A clinical record dated in December 1991 reflects the veteran's tympanic membranes and ear canals were noted as "okay" as well as a notation of no constant tinnitus. Relevant VA outpatient treatment records dated from February 1992 to November 1992 reflect continued complaints of atrophy and weakness on the right side of the body. In a letter dated in October 1997, the Element Chief of Neurology Service at USAF Medical Center stated the veteran had been diagnosed with the syndrome of primary lateral sclerosis. The physician further stated the cause of primary lateral sclerosis was not known; however, it was in a group of neurodegenerative diseases where the cause was thought to antedate the onset of symptoms by several years. The physician stated the veteran noted the first symptoms of this syndrome (nocturnal leg cramps) in the 1960's when he was still on active duty. Finally, the physician stated that since the cause or exacerbating environmental conditions of primary lateral sclerosis were not known, it was impossible to say whether this condition was due to or exacerbated by military service. The physician further stated the possibility could not be excluded. Upon VA audio examination dated in September 1997, the veteran complained of difficulty understanding conversations and reported his right ear was better than his left ear. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 40 40 40 LEFT 20 50 45 50 45 An impression of mild and moderate wide range bilateral sensorineural hearing loss was noted. Speech recognition scores were noted as excellent bilaterally. The report further reflects an Auditory Brainstem Response (ABR) test was also conducted. An impression of a normal ABR was noted. Upon VA audio-ear disease examination dated in October 1997, the examiner noted the veteran denied having tinnitus, vertigo, or ear pain. The examiner further noted the veteran was a radio operator in the service, did not have significant noise exposure, and had a positive family history for hearing loss. Upon physical examination, the tympanic membranes were noted as clear and mobile bilaterally and the canals were noted as normal in appearance. The examiner opined the veteran's sloping high frequency sensorineural hearing loss was more likely than not related to presbycusis and did not have a pattern that was highly consistent with a purely noise induced loss. In an addendum to his report, the examiner noted the results of the ABR test further confirmed his opinion. In a letter dated in May 1998, a private physician noted atrophy in the veteran's right arm, hand, and leg. The physician also noted fasciculations as well as atrophy in the right forearm and hand. Motor strength showed significant weakness distally in the right upper extremity although proximal strength was noted as good. The physician opined that the veteran appeared to have a motor neuron disorder and may have developed more amyotrophic lateral sclerosis rather than primary lateral sclerosis. The examiner further noted "[i]t is quite obvious that his disease has progressed very, very slowly." In a letter dated in November 1998, the private physician noted a primary diagnosis of primary lateral sclerosis. At his RO hearing in December 1998, the veteran testified that he experienced leg pain and cramps during service. (Transcript, pages 1, 4). The veteran testified that in the early 1970s coworkers noted he was limping. The veteran further testified at that time he did not feel that anything was wrong with him. (Transcript, page 4). The veteran testified that in the mid 1970's he was told by a physician that his right leg was shorter than his left leg. (Transcript, page 4). The veteran also testified that he experienced foot drop on the right side and he wore a brace on his right leg. (Transcript, page 5). The veteran testified that he had no strength on the right side of his body, that he had difficulty sleeping on the right side, and that he awakened during the night because of pain. (Transcript, pages 5-7). In June 1999, the Board requested an independent medical opinion as to the issue of entitlement to service connection for primary lateral sclerosis. The requested opinion was received by the Board in December 1999 from the Chairman of the Department of Neurology at the Medical University of South Carolina. The IME opined that in view of the prolonged course and primarily central or upper motor neuron involvement, he agreed with the diagnosis of primary lateral sclerosis. The IME further stated that the veteran has a slowly progressive degenerative disease which is now characterized by weakness, increased reflexes, wasting of muscles (atrophy) and fasciculations. It was noted that leg cramps began in 1965 and are documented in records of May 1965, January 1966, and November 1968 as well as being mentioned on the veteran's discharge physical. The IME opined that these were almost surely an initial manifestation of the primary lateral sclerosis with defective central motor control. Thus, he concluded that it was most likely, on the basis of available evidence, that this rare disorder of primary lateral sclerosis began in approximately 1965, while the veteran was on active duty. Relevant Law and Regulations Service connection Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d)(1999). The veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto. 38 U.S.C.A. § 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). Service connection may be granted for sensorineural hearing loss and for primary lateral sclerosis if manifested to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Additional law and regulation pertaining to hearing loss claims will be discussed where appropriate below. Well grounded claims The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and VA is under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (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 evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). One element of a well-grounded claim is a presently existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board notes that the Court has held that there is a duty to assist a veteran in the completion of his application for benefits under 38 U.S.C.A.§ 5103(a) (West 1991), depending on the particular facts in each case. Beausoleil v. Brown, 8 Vet. App. 459 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. Analysis Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether the veteran has a service- connectable hearing loss is governed by 38 C.F.R. § 3.385 (1999), which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Following a review of the record, the Board concludes service connection is not warranted for bilateral hearing loss. There is no competent evidence of a nexus between the veteran's post-service bilateral hearing loss and any in- service injury or disease, nor is there evidence that sensorineural hearing loss was manifested to a compensable degree within one year of the veteran's discharge from service. Upon VA examination dated in September 1997, the examiner noted an impression of mild and moderate wide range bilateral sensorineural hearing loss. Upon VA audio ear disease examination dated in October 1997, the examiner opined that the veteran's sloping high frequency sensorineural hearing loss was more likely than not related to presbycusis and did not have a pattern that was highly consistent with a purely noise induced loss. The examiner further noted the ABR results confirmed his opinion. The Board recognizes that the veteran's service medical records reflect a hearing loss; however, the hearing loss reflected in audiometric testing during service does not amount to a hearing loss "disability" as defined by the applicable regulation. See 38 C.F.R. § 3.385. The veteran's claim for service connection for bilateral hearing loss is supported solely by his contentions. Although the veteran can attest to his own memory of hearing loss, as a layperson he is not competent to offer medical opinions regarding its etiology or whether it constituted a disability within the meaning of the relevant regulation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of a medical nexus between the veteran's post-service bilateral hearing loss and the veteran's active service, the claim is not well grounded and is denied. The Board has reviewed the record in light of the decisions in Robinette v. Brown, 8 Vet. App. 69 (1995) and Epps v. Brown, 9 Vet. App. 341 (1996). The Board finds that the veteran was provided with adequate notice of the basis for the denial of his claim and of the evidence required to support the claim. By this decision, the Board is further informing the veteran of the type of evidence he must present in order to make his claim well grounded. Entitlement to service connection for primary lateral sclerosis. At the outset, the Board notes the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) in that there is evidence of a current disability; evidence of claimed symptoms during service; and medical nexus opinion evidence. The Board further finds that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). It is the responsibility of the Board to weigh the evidence. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The veteran's claim for service connection is supported by an October 1997 letter from the Element Chief of Neurology Service at USAF Medical Center in which the physician stated the veteran noted the first symptoms of this syndrome (nocturnal leg cramps) in the 1960's when he was still on active duty. The veteran's complaints of leg cramps during active service are verified in his service medical records which reflect complaints of leg cramps on periodic examinations in May 1965 and in January 1966 and upon retirement examination dated in November 1968. The physician further stated primary lateral sclerosis was in a group of neurodegenerative diseases where the cause was thought to antedate the onset of symptoms by several years. Post- service medical records in 1980 show a continuity of complaints of right-sided clumsiness, weakness, and stumbling. A diagnosis of primary lateral sclerosis was noted in May 1988. Additionally, in a May 1998 letter, a private physician stated that it was "quite obvious that [the veteran's] disease ha[d] progressed very, very slowly." The Board recognizes that the October 1997 letter from the Element Chief of Neurology Service at USAF Medical Center reflects that the cause of primary lateral sclerosis is not known and that it was impossible to say whether this condition was due to or exacerbated by military service, although the possibility could not be excluded. However, the veteran's claim is further supported by the December 1999 IME opinion, which has been reported in detail above. In that opinion, the IME opined that on the basis of the available evidence, it was most likely that the veteran's rare disorder of primary lateral sclerosis began in approximately 1965, while he was on active duty. Thus, although the claimed disability was not diagnosed until many years after the veteran left service and its origins are medically uncertain, there is medical opinion evidence in the form of the IME opinion, which was requested by the Board, to the effect that the disease is slow to develop and the cramps experienced by the veteran during service represented the onset of the disease. It therefore appears that there is an approximate balance of positive and negative evidence regarding the merits of the issue. With all reasonable doubt resolved in favor of the veteran, service connection for primary lateral sclerosis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). ORDER Service connection for bilateral hearing loss is denied. Service connection for primary lateral sclerosis is granted. Barry F. Bohan Member, Board of Veterans' Appeals