Citation Nr: 0001700 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-13 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a disability manifested by loss of sense of taste as a result of VA medical treatment. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from July 1950 to May 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 1996 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which found that entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for a disability manifested by loss of sense of taste as a result of VA medical treatment was not well grounded. Appeal is also taken from an August 1999 RO decision that denied service connection for tinnitus. FINDINGS OF FACT 1. There has been no establishment by competent evidence of any possible nexus between currently demonstrated tinnitus and the veteran's military service or a service-connected disability. 2. The veteran underwent a left tympanic mastoidectomy at a VA facility in September 1995 that was performed in connection with treatment for his service-connected hearing loss. 3. In an August 1998 statement, John F. Boxell, M.D., provided an opinion that there is a plausible relationship between the veteran's ear surgery and later complaints of altered taste. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim regarding service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1999). 2. The claim of entitlement to service connection for a disability manifested by loss of taste is well grounded. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. § 3.358 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); Savage v. Gober, 10 Vet. App. 489 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Tinnitus The veteran is claiming service connection for tinnitus. It is noted that service connection is in effect for bilateral, sensorineural hearing loss, rated as 50 percent disabling. Service connection for the hearing loss was granted on the basis of a relationship between this disability and acoustic trauma sustained during service. The veteran had contended that his tinnitus is also related to this acoustic trauma, the noise aircraft engines on the flight deck of an aircraft carrier. It has also been contended that the tinnitus is related to the sensorineural hearing loss for which service connection has already been established. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold question to be answered concerning this issue is whether or not the veteran has presented evidence of a well-grounded claim; that is, one which is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the pertinent facts and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998). In order for a claim to be well grounded, there must be competent evidence of current disability, evidence of the incurrence or aggravation of a disease or injury during service, and a nexus between the in-service injury or disease and the current disability. That means that for a claim of service connection, there must be evidence of a current disability, disease or injury during service and a link between the two. Furthermore, the evidence needed to establish service connection for any particular disability, must be competent. That is, an injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to an injury or symptoms during service, or to a service-connected disability, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). A well grounded claim may also be established where a chronic disease is shown in service or during an applicable presumptive period or where continuity of symptomatology is demonstrated during service. Savage v. Gober, 10 Vet. App. 489 (1997). Review of the service medical records shows no complaint or manifestation of tinnitus. The earliest manifestation of this disorder was found on an October 1993 VA audiologic evaluation. At that time, the veteran stated that the tinnitus had started ten to twelve years earlier. That was several decades after his military service that concluded in 1954. He has had consistent complaints of tinnitus since that time. It should be emphasized that to be deemed well grounded, a claim for service connection must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). When, as in the present case, a condition is not shown in service or for many years later, competent medical evidence is required to link the current condition with remote events of service or with a service connected disability; otherwise, the service connection claim is not well grounded. Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993). Review of the medical evidence of record fails to disclose such competent medical evidence. Absent an opinion that there is a medical nexus between tinnitus and service, or the veteran's service connected hearing loss, the claim is not considered plausible and must be denied. Although where claims are not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO fulfilled its obligation under section 5103(a) in the Statement of the Case in which the appellant was informed of the reasons of the denial of his claim. There is no indication of record that there is evidence pertinent to this case that has not yet been obtained. II. Benefits under 38 U.S.C.A. § 1151 for A Disability Manifested by Loss of Taste A claim for benefits under 38 U.S.C.A. § 1151 is comparable to a claim for service connection, with the exception that it is VA hospital, surgical or medical care, not the period of service, that is the key period in question. When any veteran suffers an injury or aggravation of an injury as the result of VA hospitalization, medical, or surgical treatment, or the pursuit of a course of vocational rehabilitation, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability or aggravation were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. In determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b). In determining whether any additional disability resulted from VA hospitalization or treatment, the following considerations will govern: (1) It is necessary to show that additional disability is actually the result of such disease or injury, or aggravation of an existing disease or injury, suffered as the result of hospitalization or medical treatment, and not merely coincidental therewith. The mere fact that aggravation occurred will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or aggravation of an existing disease or injury suffered as the result of hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(1) and (2). (2) Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those that are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). The Board initially notes that 38 U.S.C.A. § 1151 related claims filed prior to October 1, 1997 do not require claimants to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S.Ct. 552 (1994). But see 38 U.S.C.A. § 1151 (West 1991 & Supp. 1997) (a showing of negligence or fault is necessary for recovery for claims filed on or after October 1, 1997). However, the appellant still has the burden of submitting cognizable evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible or capable of substantiation, that is, he must submit competent evidence of additional disability or death which came as the result of VA treatment. 38 U.S.C.A. § 5107(a). Where the determinative issue involves a question of medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, supra at 93. A claimant cannot meet his burden simply by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In sum, the critical elements of a well grounded claim under 38 U.S.C.A. § 1151 are: 1) that the veteran has the disability at issue, 2) that he had VA hospitalization, medical or surgical treatment, and 3) evidence of a nexus between the disability and the VA hospitalization, medical or surgical treatment. If any of these elements is not satisfied, the claim is not well grounded. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). Review of the record shows that the veteran underwent a left tympanomatoidectomy at a VA medical facility in September 1995. Records from his private physician, John F. Boxell, M.D., dated in December 1996, show that he had complaints of altered taste following the September 1995 surgery. In a statement, dated in August 1998, Dr. Boxell noted that the chorda tympani is the "taste nerve" that courses the middle ear. He indicated that infection, perforation, or local irritation of the chorda tympani in the region of the middle ear could cause a metallic taste or altered taste to occur. As this medical opinion, is presumed truthful for the purpose of determining whether the claim is well grounded, it, in combination with the consistent contentions that have been advanced by the veteran, is sufficient to render the claim plausible. ORDER The claim for service connection for tinnitus is denied. The claim of entitlement to service connection for a disability manifested by loss of taste is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a disability manifested by loss of taste is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Inasmuch as VA's duty to assist the veteran has not been properly fulfilled, the claim is remanded for the following: 1. The RO should arrange for the veteran to undergo a VA special examination limited to ascertain whether he currently has a disability manifested by loss of, or an altered, sense of taste, and if so, whether that disability is related in any way to the surgery that was performed at the VA medical facility in September 1995. If there is no evidence of disability manifested by loss of taste or if there is no medical possibility of the development of such based on the aforesaid surgical procedure, the physician should clearly and unequivocally indicate so. The claims file should be made available to the examining physician for review prior to the examination. The specialist should provide complete rationale for all conclusions reached. 2. The RO should ensure that the above examiner provides an adequate response to the specific opinion requested. If not, the report must be returned to the physician for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 3. The RO should then readjudicate the veteran's claim for service connection for a disability manifested by loss of taste, with application of all appropriate laws and regulations, and any additional information obtained as a result of this remand. The RO should also consider carefully and with heighten mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). 4. The veteran is hereby informed that he has a right to present any additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is further advised that failure to cooperate may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). When this action is completed, the claim should be reviewed by the RO. Should the decision remain adverse, the veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to this Board for further appellate consideration. The appellant need take no action until he is notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals