Citation Nr: 0000529 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-05 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for residuals of low back injury. 2. Entitlement to service connection for residuals of mid back injury. 3. Entitlement to service connection for residuals of shoulder injury. 4. Entitlement to service connection for residuals of right knee sprain. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 to January 1993. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The veteran's currently manifested chronic lumbar spine strain, chronic dorsal strain, residuals of right knee sprain and tinnitus may not be dissociated from active service. 2. The claims file does not include a current medical diagnosis of residuals of shoulder injury. 3. The claims file does not demonstrate that the veteran has bilateral hearing loss disability within the meaning of governing law. CONCLUSIONS OF LAW 1. Currently manifested chronic lumbar spine strain, chronic dorsal strain, residuals of right knee sprain and tinnitus were incurred in military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 2. The claims of entitlement to service connection for bilateral hearing loss and residuals of shoulder injury are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic disease processes when such are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold question which must be answered as to these claims before the Board is whether the veteran has presented well grounded claims for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran 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); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). Alternatively, the U.S. Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. Hearing Loss The veteran was a Marine whose military occupation included anti-tank assault, where he was exposed to demolition, missiles and small arms fire. As part of his separation examination in December 1992, he was afforded an audiologic examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 0 5 15 LEFT 20 15 0 5 10 The veteran was also afforded a VA audiological examination conducted in August 1997. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 0 5 25 LEFT 15 10 0 5 15 Speech audiometry testing revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left ear. In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the United States Court of Appeals for Veterans Claims (hereinafter, "Court") stated that: Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss . . . however, hearing loss does not constitute a disability for VA purposes when the threshold levels at 500, 1000, 2000, 3000, and 4000 Hz are all less than 40 dB and at least three are 25 dB or less. The post-service audiometric test scores for the appellant's hearing are insufficient to establish defective hearing disability for which service connection may be awarded consistent with 38 C.F.R. § 3.385, since the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are not 26 decibels or greater; and speech recognition scores are not less than 94. Even conceding that appellant was exposed to loud noises during service, nonetheless, he has failed to provide any clinical evidence demonstrating that the requisites of 38 C.F.R. § 3.385, pertaining to proof of defective hearing disability, have been met. He has not presented any competent, credible evidence indicating that a defective hearing disability that meets the requisites of 38 C.F.R. § 3.385 is presently manifested. See also Degmetich v. Brown, 8 Vet. App. 208 (1995), wherein the Court held "[t]his means that a claim for service connection must have been accompanied by evidence that established that the appellant currently had the claimed disability." Thus, given the lack of clinical evidence showing current defective hearing disability that meets the criteria under 38 C.F.R. § 3.385, the claim of entitlement to service connection for bilateral defective hearing disability is not well grounded, and, therefore, denied. 38 U.S.C.A. § 5107(a). Shoulder In January 1992, the veteran complained of left shoulder pain after lifting weights. In August 1992, the veteran presented with complaints of right shoulder pain. His discharge examination was silent as to complaints, findings or diagnoses relating to the shoulders. A post service chiropractic case history from June 1995, while reporting low and mid back symptomatology, failed to indicate any shoulder pathology. In August 1997, the veteran was afforded a VA orthopedic examination. Although the veteran complained of pain in the left shoulder, the examination produced no findings or diagnoses of any shoulder pathology. Moreover, shoulder X- rays were within normal limits. The Board finds that this evidence demonstrates that the shoulder complaints, which the appellant suffered during service, were acute and transitory in nature, with no evidence of any residual pathology. Similarly, there is no medical evidence tending to show that the alleged symptoms in service represented a chronic disability(ies) rather than acute and transitory conditions. Without a medical diagnosis of current disability, the veteran's claim for residuals of a shoulder injury must be deemed not well-grounded and, therefore, denied. 38 U.S.C.A. § 5107(a); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The only other evidence in support of the veteran's claims are his own statements that he has the claimed disability. The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Hence, the veteran's statements do not make his claim well grounded. The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make this claim "plausible." See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete the application for a claim for service connection. Low Back, Dorsal Back, Right Knee and Tinnitus The Board finds that the veteran has presented claims which are "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a) because with respect to each of the claimed disabilities in these regards there is evidence of a current disability along with either evidence of a chronic condition which arose in service with established continuity of symptomatology or medical evidence of an etiological relationship between a disability identified after service to active duty. The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled with respect to these claims. The veteran was seen in May 1990 for muscle strain of the lower back. He was prescribed muscle relaxers. In November 1991, he was seen for complaints of pain just below the shoulder blade, which symptomatology occurred off and on with physical exertion. Tenderness and tightness was noted to the paraspinal muscles between 7-9 ribs. Assessment was paraspinal muscle sprain. In September 1993, the veteran was seen at the Manchin Clinic in Farmington, West Virginia and assessed with lumbosacral, cervical and dorsal sprain. Additional post service treatment records from 1995 through 1997 demonstrate treatment for low and mid back complaints. In August 1997, Edwin J. Morris, D.O. provided correspondence that explained the veteran had been seen since September 1993 for back complaints centering mainly in the middle of his back. Diagnosis was cervical, dorsal and lumbosacral strain which appeared to be chronic. Chiropractic treatment records from June 1995 through October 1996 reflect numerous consults and treatment for lumbar and mid-back complaints, albeit the mid-back complaints were more intermittent. As noted above, in August 1997, the veteran was also afforded a VA orthopedic examination. Although X-rays of the lumbar and cervical spine were within normal limits, the examiner diagnosed chronic lumbar spine sprain. Accordingly, by virtue of the demonstrated continuity of symptomatology, entitlement to service connection for residuals of a chronic lumbar spine sprain is established. With respect to the residuals of mid-back injury, the Board recognizes that, while the condition was not identified on the last VA examination, a chronic dorsal strain is amply demonstrated by the record. Accordingly, in resolving all doubt in the veteran's behalf, service connection for chronic dorsal strain is likewise warranted. 38 U.S.C.A. § 5107. The Board also notes that in March 1992, the veteran sustained a mild right knee strain. At the aforesaid August 1997 VA orthopedic examination, the veteran provided history of his right knee strain, and he was diagnosed with history of sprain of the right knee with mild residuals. Accordingly, the Board concludes that the evidence is in equipoise with respect to whether or not the veteran has a current right knee disability that is related to service. In resolving all doubt in his behalf, entitlement to service connection for residuals of a right knee sprain is warranted. In conjunction with the above mentioned VA audiologic examination, the veteran was diagnosed with bilateral tinnitus. The examiner reported the veteran's exposure to acoustical trauma in service and indicated that tinnitus began two years prior to the veteran's discharge from service. No post service noise exposure was reported as the veteran had been working as an electrician. His tinnitus may not be disassociated from his noise exposure during service. Further, currently diagnosed tinnitus is not shown to be due to disease of the ear and it is consistent with the veteran's report that it has been present since noise exposure during service and competent medical evidence relating hearing loss with noise exposure. In light of the above service connection for bilateral tinnitus is warranted. ORDER Entitlement to service connection for chronic lumbar spine sprain is granted. Entitlement to service connection for chronic dorsal strain is granted. Entitlement to service connection for residuals of shoulder injury is denied. Entitlement to service connection for residuals of a right knee sprain is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals