Citation Nr: 0003656 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-14 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from June 1993 to April 1997. This appeal arose from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDING OF FACT The veteran has not presented a claim of entitlement to service connection for bilateral hearing loss that is plausible or capable of substantiation. CONCLUSION OF LAW The veteran's claim for service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for bilateral hearing loss. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that the veteran's claim for service connection for bilateral hearing loss is not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In order to establish a disability due to impaired hearing according to the standards set forth by VA, the law provides that the veteran must meet the following requirements: The auditory threshold in any of the frequencies, 500, 1000, 2000, 3000 or 4000 Hertz must be 40 decibels or greater; or the auditory thresholds for at least three of the frequencies, 500, 1000, 2000, 3000 or 4000 Hertz must be 26 decibels or greater or scores using the Maryland CNC Test must be less than 94 percent. 38 C.F.R. § 3.385 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for a benefit to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the present case, the service medical records show that, in July 1993, the veteran complained of sore ears and ear pain. The assessments were respectively upper respiratory infection/pharyngitis and viral sequela. In October 1993, he complained of congested ears and was assessed with an upper respiratory infection and viral bronchitis. In early May 1994, the veteran again reported that he felt like his ears were full and was assessed with an upper respiratory infection. Subsequently towards the later part of May 1994, the veteran reported that both of his ears were affected with lowered hearing ability over the prior three to four days. The assessment was upper respiratory infection with right otitis media. In July 1994, the veteran was noted to have been referred for evaluation of a Significant Threshold Shift (STS). After undergoing a forty-hour noise free retesting, an STS was still found to be present. A light or no duty "chit" was issued for the veteran. Audiogram evaluations, dated in June 1994, July 1994, July 1995, October 1995, July 1996, December 1996, and March 1997, do not reveal that the veteran had a hearing loss disorder consistent with 38 C.F.R. § 3.385. The veteran, in September 1994, complained that his right ear felt plugged. No pertinent diagnosis was made. In October 1994, he complained of right ear pain over the prior two days. The assessment was viral pharyngitis with right mild otitis externa. He complained of a bilateral earache in November 1994. The assessment was bilateral serous and viral upper respiratory infection. The veteran, in February 1995, complained of earaches and was assessed with a viral syndrome. In another treatment record from February 1995 he was reported to have bilateral swollen tympanic membranes. A July 1995 fifteen-hour noise free retest indicated that an STS was still present. In July 1995 he was placed on a detailed surveillance program after he failed three straight annual audiograms with respect to his ears at 3000 Hertz. In a July 1995 treatment record, the veteran complained of three straight failed annual audiograms. He denied other problems or recent history of ear problems. He was noted to work in the fire watch division aboard ship, but had not noticed any problems. The assessment was left ear sensorineural hearing loss and normal right ear. In October 1995, an audiologist assessed the veteran as having hearing that was within normal limits. In an August 1996 Report of Medical History, the veteran reported experiencing ear trouble and hearing loss. The veteran, in January 1997, complained of a bilateral earache and was assessed with otitis externa. Later that month he was assessed with right ear otitis media. The veteran, in his March 1997 Report of Medical History reported experiencing hearing loss. In the Physician's Summary Section, the examiner assessed the veteran with mid range hearing loss. However, in his March 1997 separation examination report, the veteran was reported to have normal ears and not to have a hearing loss as defined by VA standards. In August 1997, the veteran was afforded a VA examination. Examination of the right ear revealed a 30 decibel loss at one frequency. The left ear showed a 30 decibel loss at 4000 Hertz, and a 35 decibel loss at 3000 Hertz. Speech recognition was 96 percent bilaterally. Proceeding as it must on the current record, the Board finds that the veteran's claim is not well grounded. Although the service medical records show that the veteran was treated for ear problems, audiological studies performed at that time did not demonstrate that a hearing loss disorder as defined for VA purposes at 38 C.F.R. § 3.385. Similarly, post-service medical records, including an August 1997 VA examination, show no findings or diagnosis of hearing loss disorder for VA purposes pursuant to 38 C.F.R. § 3.385. The Board has also considered the veteran's and his spouse's September 1997 Central Office hearing testimony. However, their testimony does not demonstrate that the veteran currently suffers from a hearing loss as defined in law by VA regulation. The nexus factor need not be considered where there is no competent evidence of record demonstrating the veteran has hearing loss for VA purposes. Simply put, without a current disability, i.e., a diagnosis of hearing loss consistent with the provisions of 38 C.F.R. § 3.385, the veteran's claim for service connection for bilateral hearing loss must be denied as not well grounded. As a well-grounded claim requires competent evidence that the claimant actually has the disability in question, the Board must conclude that the veteran has failed to fulfill his statutory burden. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the appellant has submitted no medical opinion or other competent evidence to support his claim that he has a hearing loss that is consistent with VA regulations, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim was well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. In reaching this decision the Board considered whether the reasonable doubt doctrine is applicable, however, that standard, found in 38 U.S.C.A. § 5107(b), is only utilized after all of the evidence has been considered and only when, after such consideration, the evidence is in equipoise. Kessler v. West, 13 Vet. App. 9, 22 (1999); Schoolman v. West, 12 Vet. App. 307, 311 (1999). Because the appellant has not established a well-grounded claim, the Board cannot review the merits of the evidence, and, thus, the benefit of the doubt standard is inapplicable. ORDER Service connection for bilateral hearing loss is denied. DEREK R. BROWN Member, Board of Veterans' Appeals