Citation Nr: 0003436 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-28 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from June 1966 to June 1970, in the United States Marine Corps. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a June 1995 rating decision, in which the RO denied the veteran's claim seeking service connection for bilateral hearing loss. The veteran filed an NOD in April 1996, and the RO issued an SOC in May 1996. The veteran filed a substantive appeal during that same month, May 1996. In November 1996, the veteran testified before a hearing officer at the VARO in Pittsburgh. Supplemental statements of the case (SSOC) were issued in December 1996 and September 1999. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service medical records do not reflect complaints or findings indicative of bilateral hearing loss. 3. The veteran's first documented post-service diagnosis of bilateral hearing loss was in January 1995. 4. There is no competent evidence of record relating the veteran's current bilateral hearing loss to active service. 5. The veteran's assertion that his bilateral hearing loss had its onset as a result of service is not supported by evidence that would render the claim of service connection for that disability plausible under the law. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim of service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the veteran's service medical records reflects that, during an enlistment medical examination in February 1966, and a separation medical examination in May 1970, no audiological testing was conducted, nor were results thereof reported. The veteran's DD Form 214MC indicates that he received several awards and decorations for service in Vietnam, including the Combat Action Ribbon. The veteran's service medical records do not reflect any complaints by the veteran that he suffered from hearing loss. An audiological examination, dated in August 1968, administered under the ASA-1951 standard, reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 5 LEFT 5 10 10 15 15 Adjustment of these scores to the ISO standard currently applied under VA regulations produces pure tone thresholds of: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 20 10 LEFT 20 20 20 25 20 In May 1995, the veteran filed a claim of service connection for hearing loss. In his VA Form 21-526 (Veteran's Application for Compensation or Pension), he reported that he believed his hearing loss was the result of his service in Vietnam, and that he had worked around aircraft and been exposed to nightly mortar and rocket attacks as well as small arms fire. In addition to his application, the veteran submitted an undated audiological test from GSI, in which his puretone thresholds were not numerically noted in Hertz units, but were reported in frequency waves on a graph. Approximations of those frequencies into numerical scores reflected, in the left ear, puretone thresholds in the 40-70 dB ranges for the 500-4000 Hertz (Hz) frequency range. For the right ear, puretone thresholds were recorded in the 5-20 dB ranges for the 500-4000 Hz frequency range. In June 1995, the RO received medical records from the VA Medical Center (VAMC) in Butler, dated from December 1994 to April 1995. In particular, an audiological evaluation, dated in January 1995, revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 25 25 LEFT 10 20 20 45 50 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. The examiner noted that the veteran had reported a gradual decrease in hearing over the past three years, in his left ear. The assessment was normal hearing in the right ear from 250 to 4000 Hz, with a mild sensorineural hearing loss at 8000 Hz, and normal hearing in the left ear from 250 to 2000 Hz, with a moderate sensorineural hearing loss at 3000 to 8000 Hz. In addition to the audiological evaluation, a hearing examination was conducted in April 1995. The veteran again reported a three-year history of hearing loss, without symptoms of vertigo or tinnitus. On clinical evaluation, both the veteran's ear canals were normal. The examiner's assessment was asymmetrical hearing loss. In April 1996, the veteran submitted a statement to the RO, in which he noted that he had been reading about the effects of hearing loss, and believed his exposure to noise in service had destroyed a large number of sensory hair cells in each of his ears. In addition, the veteran indicated that, as he aged, additional hair cells would be dying off, further compounding his decreased sense of hearing. Furthermore, the veteran noted that, while in Vietnam, he had been assigned perimeter guard duty around an airbase. He reported that he and the other soldiers were driven by trucks out to their assigned posts and past the flightline. He noted that the noise from the helicopters and jet aircraft was deafening. Furthermore, the veteran submitted a videocassette from Miracle Ear entitled "Hearing Loss & You." The video discusses hearing loss, in particular nerve deafness, and how the disorder could gradually diminish a person's ability to hear certain sounds. In November 1996, the veteran testified before a hearing officer at the VARO in Pittsburgh. He reported that he first began to notice a hearing loss while in the Army Reserves. He stated that, during an Army Reserve audiological evaluation, a doctor had informed him that he suffered from hearing loss. He said the doctor had subsequently asked whether the veteran had been stationed near an airfield, and when the veteran answered in the affirmative, the doctor reportedly linked his hearing loss in part to the aircraft noise associated with his duty around the airfield. The veteran testified that he had asked the doctor not to report the hearing loss because such a report would result in the veteran's not being allowed to re-enlist, and thereby adversely affect his plans to retire from the military. The doctor reportedly abided by the veteran's wishes. In addition, the veteran testified that no report of his hearing loss was ever made on any subsequent Army Reserve audiological evaluation. He further reported that, after he was separated from active service, he had worked in a supermarket, a bank, and a number of other jobs. With respect to his Army Reserve service, the veteran reported that he had been in the Army Reserve for 16 years, and his hearing had been tested every four years. In addition to his testimony, the veteran also submitted a booklet entitled "A Guide to Preventing Hearing Loss." In particular, it was noted in the booklet that extended exposure to loud noise, such as factory noise, jet engines, guns, etc., could damage hair sensory cells in the ear. In December 1996, the veteran submitted a statement to the RO, as well as various documents with respect to his Army Reserve service. He noted that, in many instances, health personnel had aided soldiers in passing their physicals, especially if the soldiers had served in Vietnam, to help them stay in the Army Reserve and National Guard. The veteran requested that the VA obtain his Army Reserve and National Guard medical records, so that he could prove that the hearing in his left ear had gradually started to fail and deteriorate during that period. With respect to the documents submitted, in particular, a Report of Medical History, dated in July 1989, noted no hearing loss complaints. The second page of a Report of Medical Examination, undated, and identified by the veteran as also having been completed in July 1989, included an audiological test. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 10 20 LEFT 25 5 20 10 25 In July 1999, in connection with a claim for PTSD, the veteran was medically examined for VA purposes. During the course of his examination, with respect to his social, vocational, and medical history, the veteran was reported to have worked in a bank as well as other jobs over the years, including a steel mill for eight years during the 1980's. The veteran was noted to have last worked in the produce section of a supermarket. In September 1999, the RO issued an SSOC, in which it denied the veteran's claim for service connection for bilateral hearing loss. In its discussion and analysis, the RO noted that it had not attempted to obtain the veteran's Reserve medical records "because they are not relevant to the issue of service incurrence of a hearing loss. Even if a hearing loss is shown on the original entrance into the Reserves in 1976, this is still 6 years after the discharge from active duty and would not show service incurrence." Subsequent to this appeal being certified and transferred to the Board for appellate review, the veteran sent an additional copy of the aforementioned videocassette from Miracle Ear, entitled "Hearing Loss & You," which was received at the Board in January 2000. Attached thereto was a personal memorandum, in which the veteran indicated that he had been informed, by an unidentified individual, that the previous copy of the videocassette had become separated from his claims file and inadvertently destroyed. The Board notes that the veteran is apparently mistaken in that regard, since, as discussed above, the previously submitted videocassette is, in fact, a part of the record on appeal. The undersigned has viewed both of them, and they are identical, although the first contains several passages in which the sound portion is inaudible. Also attached to the videocassette submitted in January 2000 was an excerpt clipped from a publication of The Times/Beaver Newspapers, Inc., Pennsylvania, dated in December 1999. Therein, a statement by the author, L.M. Boyd, indicates: "If your hearing has been damaged by loud noises, you'll never be able to fix it, says a medical specialist." In February 2000, the veteran submitted to the Board a pamphlet from the producer of the aforementioned videocassettes, Miracle Ear, entitled "Your Guide to Hearing Problems . . . and Hearing Solutions." Therein, he had emphasized, by underlining, several passages, essentially to the effect that hearing loss can result from exposure to loud noise, including jet engines, and that hearing loss can develop gradually over time. II. Analysis The present appeal arises from an original claim for service connection and, therefore, the Board's threshold question must be whether the veteran has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If he has not, the claim must fail and there is no further duty to assist in its development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied, Epps v. West, 118 S. Ct. 2348 (1998). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals), which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). See also Morton v. West, 12 Vet.App. 477, 480 (1999). The U.S. Court of Appeals for Veterans Claims has also held that, in order to establish that a claim for service connection is well grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a connection or link) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. §5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Under applicable criteria, service connection may be granted for a disability resulting from disease or injury which was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). Regulatory criteria provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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). Where a veteran served 90 days or more during a period of war, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). After a thorough review of the evidence, the Board finds the veteran has not submitted a well-grounded claim of service connection for bilateral hearing loss. In reaching this conclusion, we are cognizant that the veteran's service medical records do not reflect an audiological test during his entrance or separation medical examinations. An audiological test, however, in August 1968, did reflect normal hearing. With respect to post-service medical evidence, the first documented finding of bilateral hearing loss was in January 1995, when, upon VA examination, the veteran was reported to suffer from sensorineural hearing loss in the left ear, and to have a speech discrimination score of 92 percent in the right ear. We have taken into consideration the veteran's reports of hazardous noise exposure in service, and also reviewed the additional information submitted by the veteran, pertaining to the development of hearing loss. However, in this instance, we find that the veteran has not submitted competent medical evidence relating his bilateral hearing loss to his active service, in Vietnam or elsewhere. Thus, we must find that the veteran's claim is not well grounded, as he has not satisfied the threshold requirement for a well- grounded claim as set forth by the Court in Caluza, supra. The Board also finds that, based upon the record before us, the medical evidence does not support a finding that either right or left hearing loss was manifested to a compensable degree within the one-year presumption period following the veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309 (1999). Furthermore, we are cognizant that the veteran requested that his Army Reserve and National Guard medical records be obtain by the RO so that he could demonstrate, through those records, that his hearing gradually deteriorated after his separation from active service, and thus was related to service. The Board is mindful that the veteran testified at his personal hearing that his Army Reserve records did not document any finding of hearing loss, because he had asked the various examiners who had tested his hearing during that period not to report such a finding. According to the veteran's account, the examiners complied with his request, given that a documented finding of hearing loss would have barred him from future re-enlistment. The veteran did, however, submit a July 1989 Army Reserve audiological evaluation, which was conducted some 19 years after he separated from active service. The evaluation did not reveal a finding of hearing loss in either the right or left ear. We must point out that evidence of a gradual loss of hearing following service, especially in light of the July 1989 Army Reserve audiological test and no other supportive clinical evidence linking the veteran's hearing loss to service, would not be beneficial to the veteran's claim. Therefore, after careful review of the record, the Board can find no reason that a remand of the veteran's appeal, to obtain his Army Reserve and/or National Guard medical records, would be judicially expedient or otherwise result in a different finding. Such a remand would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet.App. 203, 207 (1999) (en banc); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). As is noted above, the veteran has contended that his hearing loss was in part due to loud noise from small arms fire, as well as rocket and mortar explosions, in Vietnam. Moreover, the videotapes and the pamphlet he has submitted indicate that acoustic trauma can cause hearing damage. It does not appear the RO has made a determination as to whether the veteran had "engaged in combat with the enemy," nor did the RO discuss the applicability of 38 U.S.C. § 1154(b); see also 38 C.F.R. § 3.304(d). Under those provisions, the Secretary is required to accept as sufficient proof of service connection satisfactory lay or other evidence, with respect to an injury or disease claimed to have been incurred during combat, even in the absence of official records to corroborate incurrence of the claimed injury or disease, provided that the evidence is consistent with the circumstances, conditions, or hardships of such service, and to resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). The Court has held that "[s]ection 1154(b) necessarily focuses upon past combat service and, for this reason, it does not constitute a substitute for evidence of current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service." Kessel v. West, 13 Vet.App. 9, 17 (1999) (emphasis in original). Thus, the mere fact that, as contended by the veteran and shown in the submitted videotapes, exposure to loud noises can cause hearing loss, does not fulfill the requirement that, in each individual claim, there must be medical nexus evidence linking the in-service acoustic trauma to the currently claimed hearing loss, which was documented years after the veteran's active service. In this instance, the Board accepts the premise that the veteran had combat service in the Vietnam conflict, based upon his personal account as well as his documented awards and decorations as a Marine. However, even assuming the applicability of section 1154(b) to the veteran's claim, and assuming that, under section 1154(b), he has submitted sufficient evidence of both the first and second requirements of a well-grounded claim (i.e., exposure to acoustic trauma in service and a present hearing disability), because section 1154(b) does not obviate the third requirement, we find that the veteran is still required to submit medical evidence of a causal relationship between his current hearing loss and his military service. The record contains no such evidence in this case. See Wade v. West, 11 Vet.App. 302, 305-6 (1998). Therefore, any error by the RO in not addressing section 1154(b) was not prejudicial to the veteran. The Board notes, in addition, that the veteran's service representative has contended that the January 1995 VA audiological test submitted by the veteran was inadequate and flawed. On further review of that test, we find no evidence to support this claim. Furthermore, we are cognizant that the evaluation was not requested by the RO, was conducted prior to the veteran filing his claim for service connection for bilateral hearing loss, and appears to have been submitted by the veteran as evidence of his current hearing disability. In any event, even if that test report were to be removed from evidentiary consideration, the veteran would still be required to submit evidence of a well-grounded claim, to include nexus evidence relating his current bilateral hearing loss to service. This has not been done. The veteran's service representative has also, in a Written Brief Presentation submitted to the Board in December 1999, asserted that there are a number of flaws in VA's adjudication procedures, including inadequate implementation of the duty to assist veterans in developing evidence, unspecified violations of due process of law, etc. The Board has given careful consideration to these allegations, and rejects them, for two reasons. First, the assertions of impropriety in claims adjudication are generic in nature, and do not focus on any specific aspects of this veteran's claim. Second, we have carefully reviewed the record in this case, and find that the RO has complied with the law in its development of the claim and its preparation of the matter for appellate review. The veteran has been very specific in asserting that he suffers from bilateral hearing loss as a result of his active service. While the Board does not doubt the sincerity of the veteran's contentions in this regard, and his belief that he suffers from a service-related disability, our decision must be based on competent medical testimony or documentation. In a claim of service connection, this generally means that medical evidence must establish that a current disability exists, and that the disability is related to a period of active military service. Competent medical evidence has not been presented establishing that the veteran's hearing loss is service-related, or that he meets the requirements of the post-service presumption provisions for hearing loss. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, Montgomery v. Brown, both supra. In addition, the veteran does not meet the burden of presenting evidence of a well-grounded claim merely by presenting his own testimony, because, as a lay person, he is not competent to offer medical opinions. See, e.g., Voerth v. West, 13 Vet. App. 117, 120 (1999) ("Unsupported by medical evidence, a claimant's personal belief, no matter how sincere, cannot form the basis of a well-grounded claim."). See Bostain v. West, 11 Vet.App. 124, 127 (1998), citing Espiritu, supra. See also Carbino v. Gober, 10 Vet.App. 507, 510 (1997); aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Routen v. Brown, 10 Vet.App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In other words, without our doubting for a moment the veracity of the veteran's accounts of noise exposure in service, we must be mindful that the etiology of hearing loss is a technical matter, as to which we must have competent medical evidence in the record, specific to the veteran's claim. Under the law, the veteran is free, at any time in the future, to submit new and material evidence to reopen his claim for bilateral hearing loss, regardless of the fact that he currently is not shown to be suffering from a disability that may be service-connected. Such evidence would need to show, through competent medical evidence, a current disability or disabilities, and that such disability, "resulted from a disease or injury which was incurred in or aggravated by service." 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau, Montgomery, supra. In absence of a well-grounded claim, there is no duty to assist the veteran further in its development, and the Board does not have jurisdiction to adjudicate it. Morton, supra; Boeck v. Brown, 6 Vet.App. 14 (1993); Grivois v. Brown, 5 Vet.App. 136 (1994). Accordingly, as a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the claim for service connection for bilateral hearing loss must be denied. See Epps v. Gober, supra. ORDER Entitlement to service connection for bilateral hearing loss is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals