Citation Nr: 0002304 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 99-02 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The appellant's dates of active military service have not been verified in any form that the Board is able to confirm. He reportedly served on active duty from February 1 to May 4, 1980, and from May 19, 1980 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) from a December 1998 rating decision by the Department of Veterans Affairs (VA) regional office (RO) in Atlanta, Georgia, which denied service connection for the above disorder. FINDINGS OF FACT 1. The appellant's service medical records could not be found, despite reasonable attempts to locate them. 2. At the request of VA, the appellant was scheduled for an examination by a private, fee-based provider, but refused to attend his appointment. 3. There is no medical evidence of incurrence of hearing loss in service, or of manifestation to a degree of ten percent within a year of service, or of nexus between any current hearing loss and any disease or injury in active service. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for a bilateral sensorineural hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background By rating decision in December 1998, service connection for a bilateral high-frequency sensorineural hearing loss was denied as not well grounded. Despite extensive efforts to locate the appellant's service medical records, none could be found. The National Personnel Records Center was contacted twice, but was unable to find records pertaining to the appellant. The appellant reportedly had no records in his possession. Although the Army National Guard was contacted at an address provided by the appellant, no records were forthcoming. The RO included a statement with the claims file indicating that it had exhausted all efforts to obtain the needed military information and that it thus considered further efforts to be futile. There is no evidence of record by which the Board is able to confirm the dates of active service or the character of service of this appellant. VA treatment records of the appellant show that he was seen initially in February 1998 with complaints of bilateral progressive hearing loss for the past 10 years. He denied any ringing, pain, or difficulty with balance/vertigo. He stated that he worked in a trailer at a construction site and that the noise level was extremely high, but that he only occasionally wore hearing protection. Examination revealed that the tympanic membranes were intact and that there was markedly decreased bilateral hearing in the right ear, worse than the left. The assessment was sensorineural hearing loss. He was advised to wear noise protection at all times on the job and was referred to audiology for testing and hearing aids. An audiology consultation in April 1998 revealed puretone air conduction thresholds in the right ear of 40 decibels at 500 Hertz, 55 decibels at 1000 Hertz, 50 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 35 decibels at 4000 Hertz. Puretone air conduction thresholds in the left ear were 50 decibels at 500 Hertz, 50 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 30 decibels at 4000 Hertz. The examiner remarked that there was normal middle ear mobility and pressure, right and left, but that absent contralateral acoustic reflexes were not consistent with the type and degree of the hearing loss. She reported bilateral sensorineural hearing loss of "cookie bite" configuration and decreased word recognition ability which was not consistent with the degree of hearing loss. Her recommendation was auditory brain (evoked) response (ABR) due to abnormal audiometric findings; ear, nose, and throat follow-up if indicated following ABR; and hearing aids following medical clearance and eligibility update. In May 1998, the appellant responded to an RO request for additional information regarding his claim for a hearing problem. He stated that he had been treated for a hearing problem in on base in San Francisco in the early 1980's, but had had no further treatment. In May 1998, the RO was notified by a health provided identified as "QTC," under contract with VA to provide independent medical examinations for veterans. An appointment was scheduled on May 20 for bilateral hearing loss testing. Despite repeated telephone conversations, the appellant refused to keep these appointments, stating that he had also been scheduled to be seen for a VA appointment on May 28. Accordingly, QTC cancelled the appointments. The appellant was seen at a VA ear, nose, and throat clinic on May 28, 1998. The appellant reported noise exposure as a radio operator for several years in the Army, in helicopters, and in the mechanized infantry, all duties in which hearing protection was impractical or not available. He said that he had more recently been working with large generators. Examination disclosed that the tympanic membranes, canals, pharynx, nose, and neck were all within normal limits. Audiological testing had shown bilateral cookie-bite hearing loss with discrimination of 68 in the right ear and 84 in the left ear. The assessment was bilateral sensorineural hearing loss, etiology unclear. The examiner indicated that only part of the abnormality was due to noise. He suggested magnetic resonance imaging (MRI), followed by a return to the ear, nose, and throat clinic. II. Legal Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The initial question which must be answered is whether the appellant has presented 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). To be well grounded, a claim must be "plausible;" that is, it must be one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of § 5107(a). Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition in Epps v. Brown, 9 Vet. App. 341, 344 (1996). A claim which is not well grounded precludes the Board from reaching the merits of a claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim of entitlement to service connection requires medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence, of in- service incurrence or aggravation of a disease or injury; and medical evidence of a nexus or link between the claimed in- service disease or injury and the present disease or injury. Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, 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) (1998). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition in service or during an applicable presumption period and still has that condition. Such evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Id. Certain disabling conditions that become manifest to a degree of 10 percent within a year of service may also be presumed service connected, including organic diseases of the nervous system. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (1999). For 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 above frequencies 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). Although the appellant refused to report for the examination scheduled to evaluate his initial claim, there is evidence of VA outpatient audiology records showing that his auditory thresholds meet the requirement for showing current hearing loss disability in both ears. Such evidence, which may not be adequate for rating purposes, is sufficient at least for purposes of showing a current disability. However, there is no evidence showing incurrence of a hearing loss disability in service or within a year of separation from service. Nor is there any medical evidence connecting a current hearing loss disability with any disease or injury in service. Recent VA examiners have been unable to assign an etiology for the appellant's current hearing loss. Even if service medical records were available, without a clear etiology for the current disorder, the nexus element could not be met. Therefore, despite the fact that the appellant has presented evidence of a current disability, this evidence is thus insufficient by itself to support a plausible claim. Individuals for whom medical examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. §§ 3.326(a), 3.327(a), 3.655 (1999). Since the appellant did not report for scheduled examinations as required by VA, evidence expected from these examinations which might have been material to the outcome of this claim could not be considered. The Board finds that this claim is not well grounded. Until the appellant presents a well-grounded claim for service connection, VA has no duty to assist him in developing facts pertinent to his claims, including providing him a medical examination at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Grivois v. Brown, 6 Vet. App. 136, 139-40 (1994) (noting that "implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which . . . require adjudication"); see also Slater v. Brown, 9 Vet. App. 240, 243-244 (1996). See also, Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998); Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application if on notice that relevant evidence exists or may be obtainable. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim (see Robinette v. Brown, 8 Vet. App. 69 (1995)), which depends further upon the Department having notice that relevant evidence may exist or could be obtained (see Franzen v. Brown, 9 Vet. App. 235 (1996)). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's "duty" is just what it states, a duty to assist, not a duty to prove a claim). Nothing in the record suggests the existence of evidence that might render plausible the claim that is not currently well grounded. The appellant has stated that he was only treated on one occasion in service and that he had never received further treatment. The RO has undertaken extensive efforts to locate service medical records, all without success. There is no indication of additional pertinent records that could be obtained that might render the claim plausible, and the claim must be denied. ORDER Service connection for bilateral sensorineural hearing loss is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals