Citation Nr: 0001381 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 93-17 074A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for a perforated left tympanic membrane. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from December 1990 to January 1992. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Denver Regional Office (RO) November 1992 rating decision which denied service connection for a bilateral hearing loss and a perforated left tympanic membrane. The veteran has relocated to Texas and the Waco RO now has jurisdiction over this claim. These issues were before the Board in December 1997, at which time they were remanded for further development of the evidence. By August 1999 rating decision, the RO granted service connection for the veteran's right knee disability, and assigned a 10 percent disability rating. As the veteran has not disagreed with the rating assigned, such "downstream" issue is not in appellate status. See Holland v. Gober, 10 Vet. App. 433, 435-36 (1997) (per curiam) (citing Hamilton v. Brown, 4 Vet. App. 528, 538 (1993) (en banc), aff'd 39 F.3d 1574 (Fed. Cir. 1994); see also Grantham v. Brown, 114 F 3d. 1156, 1158-59 (1997). FINDINGS OF FACT 1. No competent medical evidence has been submitted which establishes that the veteran currently has a bilateral hearing disability for VA compensation purposes. 2. The veteran incurred a perforated left tympanic membrane prior to his period of service; the severity of his perforated left tympanic membrane did not increase during service; no competent medical evidence has been submitted which tends to show that the veteran currently has a perforated left tympanic membrane disability that is related to service in any way. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement for service connection for a bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted a well-grounded claim of entitlement for service connection for a perforated left tympanic membrane. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before reaching the merits of the veteran's claims, the threshold question which must be resolved is whether or not he has presented evidence that his claims of service connection are well grounded. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Id. at 81. An allegation alone is not sufficient; the veteran must submit evidence in support of his claims that would justify a belief by a fair and impartial individual that the claims are plausible. 38 U.S.C.A. § 5107(a) (West 1991); 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 inservice disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinant issue involves a question of medical causation or diagnosis, 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 sufficient to render a claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore, if there is no showing of the current existence of the disability, the claim is not well grounded. Rabideau v. Derwinski, 2. Vet. App. 141 (1992). Service connection may be granted for a disability resulting from a chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may also 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). For the showing of a 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 where 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, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). I. Bilateral Hearing Loss In the case of any veteran who served for 90 days or more during a period of war, and an organic disease of the nervous system (sensorineural hearing loss) becomes manifest to a degree of 10 percent or more within one year from the date of separation from such service, it shall be considered to have been incurred in such service, even when there is no record of evidence of 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 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1999). 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's impaired hearing constitutes a disability for VA compensation purposes is governed by 38 C.F.R. § 3.385. Prior to December 27, 1994, 38 C.F.R. § 3.385 stated that hearing status shall not be service-connected when the thresholds for the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. Subsequent to the change in regulation, 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 (1999). If the record shows evidence of inservice acoustic trauma and inservice audiometric results indicate an upward shift in tested thresholds, and if postservice audiometric testing results meet the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the postservice findings to injury in service, or whether they are more properly attributable to intercurrent causes. Hensley, 5 Vet. App. at 159. The veteran contends that he has a bilateral hearing loss and that its onset began during his period of service. Thus, he maintains that service connection is warranted for a bilateral hearing loss. The veteran's March 1990 service entrance examination shows that his auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 10, 5, 15, 15 and 15, respectively, in the right ear and 0, 5, 10, 20 and 10, respectively, in the left ear. In an accompanying Report of Medical History, he indicated that he had not had a hearing loss. Private medical records, dated from July to September 1990, from The New York Hospital-Cornell Medical Center, include two audiological evaluation reports. The first report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 0, 0, 0, 10 and 15, respectively, in the right ear, and 15, 5, 10, 15 and 15, respectively, in the left ear. Speech discrimination was 92 percent correct in the right ear, and 100 percent correct in the left ear. The second private audiological evaluation report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 10, 0, 15, 20 and 20, respectively, in the right ear, and 25, 10, 25, 25 and 25, respectively, in the left ear. Speech discrimination was 96 percent correct in the right ear, and 98 percent correct in the left ear. An April 1991 service medical record shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 20, 10, 10, 10 and 10, respectively, in the right ear and 10, 0, 10, 15 and 15, respectively, in the left ear. It was noted that he was routinely exposed to hazardous noise. A July 1991 service medical record shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 10, 5, 10, 30 and 20, respectively, in the right ear and 15, 0, 15, 15 and 15, respectively, in the left ear. Speech discrimination was 100 percent correct, bilaterally. The veteran's September 1991 service separation examination shows that his auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 20, 10, 10, 10 and 10, respectively, in the right ear and 10, 0, 10, 15 and 15, respectively, in the left ear. In the accompanying Report of Medical History, he indicated that he had not had a hearing loss. On VA audiological evaluation in October 1992, the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 0, 0, 0, 10 and 10, respectively, in the right ear, and 0, 5, 10, 15 and 20, respectively, in the left ear. Speech discrimination was 100 percent correct, bilaterally. On VA audiological evaluation in June 1998, the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 20, 15, 15, 15 and 20, respectively, in the right ear, and 25, 25, 25, 20 and 15, respectively, in the left ear. Speech discrimination was 98 percent correct, bilaterally. He was diagnosed as having hearing thresholds which were within normal limits and excellent recognition abilities. The examiner commented that there was no reliable evidence that the veteran's hearing had changed substantially since his enlistment audiogram. On VA ear examination in June 1998, the examiner opined that there was no evidence that the veteran had any noise-induced hearing loss while in the service. At his hearing before the undersigned in October 1999, the veteran testified that the onset of his bilateral hearing loss occurred during his period of service. He also testified that he was employed in a profession which did not damage his ears. He indicated that his bilateral hearing loss had become so severe that he had to resort to lip- reading. The veteran's fiancée testified that she had known the veteran since 1996. She also testified that the volume of televisions and radios had to be loud in order for the veteran to hear them. On the basis of the foregoing evidence, the Board finds that the veteran has not presented evidence of a well-grounded claim of service connection for a bilateral hearing loss. While the veteran's service medical records include a notation that he was routinely exposed to hazardous noise, they are totally devoid of any clinical finding that he had a bilateral hearing disability pursuant to 38 C.F.R. § 3.385. The Board recognizes that 38 C.F.R. § 3.385 was amended during the pendency of the veteran's appeal. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. However, whether considering the old or new version of 38 C.F.R. § 3.385, the provisions are not met. In sum, the postservice VA audiological evaluation reports do not show that he currently has a bilateral hearing disability pursuant to 38 C.F.R. § 3.385. In the absence of a current disability, the veteran's claim of service connection for a bilateral hearing loss is not well grounded. Caluza, 7 Vet. App. at 506. II. Perforated Left Tympanic Membrane Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b) (1999). The veteran contends that, although he perforated his left eardrum prior to his period of service, it was aggravated beyond the normal progression of the disability during this period. He further contends that his left eardrum continues to be perforated. Thus, he maintains that service connection is warranted for a perforated left eardrum. The veteran's March 1990 service entrance medical examination shows that a clinical evaluation of his left ear revealed normal findings. In an accompanying Report of Medical History, he reported that he had had ear trouble. A July 1990 record shows that he was assessed as having a perforated left eardrum. A left tympanoplasty was recommended at that time. The Board notes that these findings were made prior to the veteran's entry into service. Private medical records, dated from July to September 1990, from The New York Hospital-Cornell Medical Center, show that the veteran was assessed as having perforated his left eardrum in July 1990. An August 1990 record shows that he underwent a left tympanoplasty at that time. Later that month, it was noted that his sutures were removed and that the incision was healing well. Private billing records, dated from July to October 1990, from N. D., M.D., also show that the veteran underwent a tympanoplasty in August 1990. The veteran's service medical records show that, in August 1990, it was noted that his postoperative status was uneventful and that his prognosis was good. Later that month, it was noted that he would not be eligible for enlistment until 120 days had passed after his left tympanic membrane surgery. The Board notes that these findings were made prior to the veteran's entry into service. A review of the veteran's service medical records, dated subsequent to his entry into service, reveals that he was seen with complaints of an earache in February 1991. Examination of his left ear revealed that there was drainage from his tympanic membrane. In June 1991, he reported that he was able to hold his nose and blow air out of his left ear. He also reported that he did not have any left ear pain or discharge. The assessment was perforated left tympanic membrane. A July 1991 record shows that he was assessed as having a questionable performance or poor tympanoplasty success on his left ear. It was noted that he should be referred to an ear, nose and throat specialist as soon as possible. In August 1991, an examination of his left tympanic membrane revealed that it was clear and without any lesions. His September 1991 service separation examination shows that a clinical evaluation of his left ear revealed normal findings. In the accompanying Report of Medical History, he reported that he had had ear trouble. It was noted that he had had a tympanoplasty in 1990 with good results. On VA medical examination in October 1992, the veteran reported that he experienced pain in his left ear. However, an evaluation of his left ear was not conducted at that time. Private medical records, dated from June to November 1996, from E. T., M.D., show that the veteran underwent a left tympanoplasty with canalplasty and temporalis fascia graft in August 1996. The postoperative diagnosis was persistent left tympanic membrane perforation. At a follow up examination in September 1996, his left graft was healing well except for some slight thickening. No other abnormalities were found. The diagnosis was status post left tympanoplasty. An October 1996 record shows that his left ear was congested and infected. The pertinent diagnosis was otitis media of the left ear. In November 1996, it was noted that his left ear was clear and sealed. On VA medical examination in June 1998, the veteran's left tympanum and mastoids were normal. No active ear disease or infection was present. The diagnosis was postoperative tympanoplasty times two. It was noted that it was most likely that the veteran's first graft broke down while he was in the military and that this might have occurred even if he had not been in the military. The veteran was afforded another VA medical examination in August 1999, as the examiner had not had the opportunity of reviewing the veteran's claims file when the June 1998 examination was conducted. After a review of the file, the examiner reiterated his opinion that the veteran's preservice graft broke down during his period of service. He also reported that it was only remotely possible that noise exposure had caused the veteran's perforated left tympanic membrane. Examination of the veteran's left ear revealed that he had tympanosclerosis of the left tympanic membrane which was characteristic of childhood infections. A healed perforation was also found. His left eardrum was functional and no retracted areas or perforations were present. The examiner reported that he strongly doubted that the veteran's military service had aggravated his perforated left tympanic membrane. At the October 1999 hearing before the undersigned, the veteran testified that repercussion from waves in a swimming pool had perforated his left eardrum prior to his entry into service. He also testified that the Army had delayed his entry into service for 120 days because a graft had been placed in his left eardrum. He reported that that graft had been successful. He indicated that, about 6 or 7 months after his entry into service, he noticed that he was able to blow air out of his left ear. He reported that he was in the field artillery in service and that he was given earplugs whenever he was on duty. He also reported that a second graft was placed in his left eardrum in 1996 and that it was still intact. He indicated that he had not received any blows to the head since his separation from service. He reported that he had experienced some drainage and infections in his left ear. The veteran's fiancée did not proffer any testimony which pertained to the etiology of the veteran's perforated left tympanic membrane. The Board is of the opinion that the veteran has not submitted evidence of a well-grounded claim of service connection for a perforated left tympanic membrane. While his service medical records show that he was assessed as having a perforated left tympanic membrane, they also show that this disability preexisted his period of service. In fact, his entry into the Army was delayed because he underwent a tympanoplasty. Thus, in this case, clear and unmistakable evidence demonstrates that left tympanic membrane problems existed prior to service. As noted above, service connection may still be warranted if the preexisting disability was aggravated by service. In the instant case, the records do not tend to establish that the severity of his perforated left tympanic membrane increased during his period of service. The VA examiner in August 1999 reviewed the veteran's file, and his final opinion after 2 examinations and a study of the file was that he strongly doubted that military service aggravated the left tympanic membrane problem. There is no other competent, i.e., medical, evidence that links a current left tympanic membrane disability to service. As reported earlier, in the absence of a current disability with medical nexus evidence linking such disability to service, the veteran has not met the requirements for a well- grounded claim. Caluza, 7 Vet. App. at 506. Consequently his claim of service connection for a perforated left tympanic membrane must be denied. III. Additional Matters The Board has carefully considered the testimony of the veteran and his fiancée regarding the etiology of his claimed bilateral hearing loss and perforated left tympanic membrane. However, as laypersons, they are not qualified to render such opinions as to medical diagnoses, etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In denying the veteran's claims of service connection for a bilateral hearing loss and a perforated left tympanic membrane, the Board has considered the matter of resolution of the benefit of the doubt. However, application of the benefit-of-the-doubt rule is only appropriate when the evidence is evenly balanced or in relative equipoise. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49, 53-56. Such is decidedly not the case where, as reported earlier, there is no competent medical evidence of record which establishes that the veteran currently has a bilateral hearing disability for VA compensation purposes or shows that the perforated left tympanic membrane which he incurred prior to his period of service increased in severity during such service. Although the Board has considered and denied the veteran's claims on grounds different from that of the RO, which denied these claims on the merits, the veteran has not been prejudiced by the decision. This is because in assuming that these claims were well grounded, the RO actually accorded the veteran greater consideration than his claims in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Service connection for a bilateral hearing loss ear is denied. Service connection for a perforated left tympanic membrane is denied. M. SABULSKY Member, Board of Veterans' Appeals