Citation Nr: 0003897 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 95-41 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for chronic right shoulder disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active military service from November 1984 to January 1990 and subsequent service in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Oakland Regional Office (RO) February 1995 rating decision which denied service connection for right shoulder bursitis, bilateral hearing loss, and tinnitus. FINDINGS OF FACT 1. There is no current medical diagnosis of chronic right shoulder disability, and competent medical evidence does not show that any claimed right shoulder disability is related to service or right shoulder pain treated during service. 2. The veteran's auditory thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 5, 0, 0, -5, and 10 decibels, respectively, in the right ear, and 5, 5, 0, 5, and 35 decibels, respectively, on the left; his speech recognition ability is 100 percent correct, bilaterally. 3. There is no current medical diagnosis of tinnitus, and competent medical evidence does not show that the claimed tinnitus is related to active service or any noise exposure therein. CONCLUSIONS OF LAW 1. The veteran has not presented a well-grounded claim of service connection for chronic right shoulder disability. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's hearing is not a disability within the meaning of the applicable regulatory criteria. 38 C.F.R. § 3.385 (1999). 3. The veteran has not presented a well-grounded claim of service connection for tinnitus. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be allowed for a chronic disability, resulting from an injury or disease, incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. § 1131 (West 1991). Service connection may also be allowed on a presumptive basis for arthritis and sensorineural hearing loss, if the pertinent disability becomes manifest 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). For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required when the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). The U.S. Court of Appeals for Veterans Claims (the Court) has held that lay observations of symptomatology are pertinent to the development of a claim of service connection, if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The Court established the following rules with regard to claims addressing the issue of chronicity. Chronicity under the provisions of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). A lay person is competent to testify only as to observable symptoms. A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1994). However, service connection may be granted for a post-service initial diagnosis of a disease that is established as having been incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (1999). The threshold question is whether the veteran has presented evidence that his claim is well grounded. See 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would justify a belief by a fair and impartial individual that the claim is plausible. 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 a current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves a question of medical diagnosis or causation, competent medical evidence to the effect that the claim is plausible is required to establish a well-grounded claim. Libertine v. Brown, 9 Vet. App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994). Thus, lay statements regarding a medical diagnosis or causation do not constitute evidence sufficient to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). The veteran's DD Form 214 shows that his military occupational specialty during active service was cavalry scout. The only available medical records during his active service period consist of a Physical Profile record dated in July 1988, showing that he was placed on temporary physical profile until September 1988 due to right shoulder pain. The veteran contends that right shoulder bursitis was initially diagnosed and treated during active service; he indicated that his complete service medical records, documenting treatment for right shoulder disability, are missing. When complete service medical records are unavailable, the obligation of the Board to explain its findings and conclusions and to consider carefully the benefit of the doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The veteran's medical records during Army Reserve service include a December 1990 periodic medical examination report; at that time, he reported a history of painful or "trick" shoulder or elbow, but no pertinent clinical findings were recorded on examination. No report or clinical findings referable to any right shoulder symptomatology or disability, hearing loss, or tinnitus were noted on quadrennial medical examination for reserve purposes in April 1992; on examination, left ear hearing acuity at 4,000 Hertz was 35 decibels (the thresholds at all other pertinent frequencies were 15 decibels or less). On VA medical examination in April 1994, the veteran indicated that he was exposed to artillery noise in service resulting in bilateral hearing loss and tinnitus, noting that high frequency hearing loss was initially documented in service. He indicated that he experienced right shoulder pain while performing push-ups in service in 1988; reportedly, right shoulder bursitis was diagnosed and treated on one or two occasions with cortisone injections. He indicated that he continued to experience right shoulder impairment, but denied receiving ongoing treatment. On examination, range of motion of the right shoulder was reduced and the lateral deltoid was tender to palpation, but there was no evidence of external deformity and X-ray study of the shoulder was normal. History of right shoulder bursitis with complaints of pain and impaired motion was diagnosed. On VA audiological examination in April 1994, auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 5, 0, 0, -5, and 10 decibels, respectively, in the right ear, and 5, 5, 0, 5, and 35 decibels, respectively, in the left ear; speech recognition ability was 100 percent correct, bilaterally. It was indicated by the audiologist that the veteran's hearing was normal, bilaterally. Medical records from California Chiropractic reveal that the veteran sustained low back trauma while moving "a lot of boxes" in July 1995, resulting, in pertinent part, in right shoulder pain. On initial examination on July 14, 1995, he reported having right shoulder crepitus and indicated that right shoulder bursitis was initially diagnosed in service; he did not report any history of injury or surgery involving the right shoulder. Rotator cuff syndrome was diagnosed and prognosis for recovery was indicated as "favorable." On examination on September 5, 1995, it was indicated that right shoulder abduction was still reduced and right rotator cuff (syndrome) was diagnosed; he was instructed on appropriate exercises to increase the range of motion and decrease pain. On follow-up examination on September 29, 1995, no subjective complaints or objective findings referable to the right shoulder were indicated. Based on the foregoing, the Board finds that the claims of service connection for chronic right shoulder disability, bilateral hearing loss, and tinnitus are not well grounded. As indicated above, the veteran's complete service medical records are unavailable; thus, the Board has a heightened obligation to explain its findings and conclusions. See O'Hare, 1 Vet. App. at 367. The veteran is competent to indicate that he received medical treatment due to right shoulder pain in service, and that he was exposed to noise during service resulting in decreased ability to hear and ringing in the ears (tinnitus); his credibility in that regard is not challenged, and his contention regarding in- service treatment for right shoulder pain is supported by July 1988 Physical Profile record; although he was placed on temporary physical profile due to right shoulder pain in service, there is no indication that the pain was caused by a chronic disability. Moreover, the claims file contains portions of medical records from his service in the Army Reserve and includes a December 1990 periodic medical examination report (dated within a few months after separation from active service). Although he reported a history of recurrent shoulder or elbow pain on examination in December 1990, chronic disability involving that shoulder was not identified on medical examination. The Board notes that the veteran complained of right shoulder pain and impaired range of motion on VA medical examination in April 1994 and during private treatment between July and September 1995; although the VA examiner suggested in April 1994, that the veteran complained of right shoulder pain and impaired motion, only a history of right shoulder bursitis was indicated; objective evidence of disability or impairment involving the shoulder was not shown by X-ray evidence. Although he is shown to have had chiropractic treatment for right shoulder pain in 1995 and having a history of diagnosis of right shoulder bursitis during service, the treating physician did not suggest that symptoms/impairment referable to the right shoulder in 1995 were in any way related to the reported diagnosis of right shoulder bursitis in service. Moreover, although right shoulder rotator cuff syndrome was diagnosed in July and on September 5, 1995, chronic right shoulder disability was not evident during follow-up treatment on September 29, 1995, or indeed at any time thereafter. Absent evidence of current disability involving the right shoulder, the claim must be denied as not well grounded. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability there can be no valid claim). With regard to the claimed 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, 158 (1993). Impaired hearing will be considered to be a disability for VA service connection compensation purposes when the auditory threshold level in any of the frequencies 500, 1,000, 2,000, 3,000 and 4,000 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. Although the veteran's military occupational specialty (cavalry scout) during active service is not inconsistent with exposure to the noise of artillery fire, the medical evidence of record does not show that any such exposure resulted in hearing loss disability or tinnitus. The Board notes that a 35-decibel loss at 4,000 Hertz in the left ear was noted on medical examination during his reserve service in April 1992 and on VA audiological examination in April 1994; however, such decreased hearing acuity does not constitute a disability for which service connection may be granted under 38 C.F.R. § 3.385. Most importantly, VA audiological examination was performed in April 1994 and hearing loss or tinnitus were not diagnosed at that time (the Board notes that hearing loss with constant tinnitus was indicated on VA medical examination in April 1994 but the reader was referred to review audiological examination report; such report failed to confirm the presence of hearing loss or tinnitus disabilities). Thus, absent evidence of current hearing loss or tinnitus disability, as defined by law above, the claims must be denied as not well grounded. See Brammer, 3 Vet. App. 223 (in the absence of proof of a present disability there can be no valid claim). The Board is mindful of the veteran's own contentions that he has chronic right shoulder, hearing loss, and tinnitus disabilities, and that such disabilities were incurred during service. However, he is a lay person and as such is not competent to make a medical diagnosis or provide the etiological link between in-service right shoulder symptoms or noise exposure and any current right shoulder disability and hearing loss with tinnitus. See Grivois, 6 Vet. App. at 140, citing Espiritu, 2 Vet. App. at 494. Although he is competent to indicate that he was treated for right shoulder pain in service and that he was exposed to artillery noise while in service, competent medical evidence is required for the showing of a nexus between any in-service symptomatology and/or trauma and current chronic disability. See Libertine, 9 Vet. App. at 522. 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, VA does not have a duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The Board finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence or availability of any medical evidence that has not already been obtained that would well ground his claims. Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Service connection for chronic right shoulder disability is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. J. F. Gough Member, Board of Veterans' Appeals