Citation Nr: 0005321 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-35 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active air service from April 1987 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Los Angeles Regional Office (RO) January 1996 rating decision which denied service connection for bronchitis, sinusitis, a low back disability and bilateral hearing loss, and granted service connection for a left knee scar, assigning it a noncompensable rating. The RO notified the veteran of this decision by February 1996 letter. At his January 1999 hearing, the veteran withdrew the substantive appeal of the claim for a compensable evaluation for his service-connected left knee scar. Thus, the Board will proceed below in accordance with the veteran's express wishes. 38 C.F.R. § 20.204 (1999). FINDINGS OF FACT 1. The veteran had bronchitis prior to his military service; the severity of his bronchitis did not increase during service; no competent medical evidence has been presented to establish a link or nexus between his bronchitis and service. 2. No competent medical evidence has been presented to show that the veteran currently has sinusitis. 3. No competent medical evidence has been presented to link the veteran's low back disability and his military service; nor was degenerative disc disease of the lumbar spine evident within a year following his separation from service. 4. Bilateral hearing loss was not evident during the veteran's military service; nor was it evident to a compensable degree within one year following his separation from service; no competent medical evidence has been presented to show that he currently has a bilateral hearing disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for bronchitis. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted a well-grounded claim of entitlement to service connection for sinusitis. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran has not submitted a well-grounded claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran has not submitted a well-grounded claim of entitlement to service connection for bilateral hearing loss. 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 is whether he has presented evidence that his claims of service connection are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meritorious on its own or capable of substantiation. Id. at 81. An allegation alone is not sufficient; the appellant must submit evidence in support of his claim that would justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). 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 a nexus shown between the in- service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for disability resulting from chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). Service connection may 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 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). Bronchitis The veteran contends that, while he had bronchitis prior to service, it was aggravated beyond its normal progression during his period of service. He further contends that he continues to have bronchitis, and argues that service connection is warranted for bronchitis. Every veteran shall be taken to be 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's service medical records reveal that a clinical evaluation of his lungs and chest revealed normal findings at the time of his September 1986 service entrance medical examination. In an accompanying Report of Medical History, he noted that he had pain or pressure on his chest and a chronic cough. It was noted that he had recurrent bronchitis about one or two times a year. In August 1987, he was seen with complaints of a cough, productive of green sputum. He was assessed as having bronchitis. A November 1987 clinical record shows that he reported that he had a cough for the previous two weeks. The clinical assessment was viral upper respiratory infection. In January 1991, he was seen with complaints of chest pain. He was assessed as having a cough due to smoking and chest wall pain. On October 1993 clinical evaluation, his lungs and chest were normal. On VA medical examination in December 1994, clinical evaluation of the veteran's respiratory system revealed normal findings. He was diagnosed as having a history of bronchitis several times in service, asymptomatic on that examination. VA outpatient treatment records, dated from June 1997 to September 1998, show that the veteran was assessed as having bronchitis in June 1998. At the January 1999 hearing, the veteran testified that, in 1998, he had pneumonia which he believed was related to bronchitis. He also testified that he had bronchitis on a couple of occasions as a child. He reported that he had not sought medical treatment for bronchitis during the 10 years prior to entry into military service. On the basis of the foregoing evidence, the Board is of the opinion that the veteran has not presented evidence of a well-grounded claim of service connection for bronchitis. The service medical records show that it was noted that he had recurrent bronchitis about one or two times a year at the time of his service entrance medical examination. Thus, there is clear and unmistakable evidence which demonstrates that he had bronchitis prior to service. However, as noted above, service connection may still be warranted if his preexisting bronchitis was aggravated by service. In this case, the service medical records do not show that the severity of his bronchitis increased during his period of service. Rather, they show that he was assessed as having bronchitis on only one occasion in August 1987, and that that his lungs and chest were shown to be clinically normal by October 1993. The Board also observes that the postservice VA medical records demonstrate that the veteran was assessed as having bronchitis on one occasion. However, these records do not, in any way, establish any link or nexus between his bronchitis and his period of service. Thus, a nexus between the veteran's bronchitis and his period of service has not been established. Consequently, his claim of service connection for bronchitis cannot be viewed as well grounded. Caluza, 7 Vet. App. at 506. Sinusitis The veteran contends that he has sinusitis and that it began during his period of service; thus, he argues that service connection is warranted for sinusitis. The veteran's service medical records show that a clinical evaluation of his sinuses revealed normal findings at he time of his September 1986 service entrance medical examination. In the accompanying Report of Medical History, he indicated that he had not had sinusitis. In May 1987, he was seen with complaints of a sore throat. Examination of his nose revealed erythematous mucosa. He was assessed as having rhinopharyngitis. An April 1993 record shows that he was seen with complaints of copious nasal discharge. He was assessed as having sinusitis. In July 1993, he reported that he was unable to breathe out of his nose. He was assessed as having probable allergic rhinitis. In October 1993, a clinical evaluation of his sinuses revealed normal findings. Later that month, he was seen with complaints of congestion and purulent sputum. He was assessed as having sinusitis. January and April 1994 records show that he was seen with complaints of sneezing and congestion. He was assessed as having rhinitis and allergic rhinitis. An August 1994 hearing conservation examination, he reported that he had sinus problems. On VA medical examination in December 1994, the veteran was diagnosed as having normal sinuses. VA outpatient treatment records, dated from June 1997 to September 1998, include a June 1997 record wherein it was noted that the veteran had had allergic rhinitis. At his January 1999 hearing, the veteran testified that he was first treated for sinusitis in service. He also testified that he had not been given a service separation medical examination. He stated that he treated his sinusitis with medication, and also he reported that it had been a while since he last had a serious sinus infection. Based on the foregoing, the Board finds that the veteran has not presented evidence of a well-grounded claim of service connection for sinusitis. There is no competent medical evidence of record which establishes that the veteran currently has sinusitis, much less that it is of service origin. In particular, while his service medical records show that he was assessed as having sinusitis on occasion, they do not show that his sinusitis was a chronic condition. Rather, they show that he was last diagnosed as having sinusitis in October 1993, nearly a year prior to his service separation. In addition, the VA examination report shows that he was diagnosed as having normal sinuses. Moreover the VA outpatient treatment records do not include any clinical finding or a diagnosis of sinusitis. As such, there is no competent medical evidence of record which establishes that the veteran currently has sinusitis which is of service origin. While the Board is sympathetic to the beliefs of the veteran, his claim of service connection for sinusitis may not be viewed as well grounded under these circumstances. Caluza, 7 Vet. App. at 506. Low Back Disability The veteran contends that his low back disability is the result of in-service low back injury; he maintains that service connection is warranted for a low back disability. In the case of any veteran who served for 90 days or more during a period of war and arthritis 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 or aggravated by 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, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran's service medical records show that a clinical evaluation of his spine and lower extremities revealed normal findings at the time of his September 1986 service entrance medical examination. In the accompanying Report of Medical History, he indicated he had not had arthritis or recurrent back pain. A March 1990 record shows that he was seen with complaints of a sore back. He reported he twisted his back while carrying heavy weight. Examination of the back revealed a full range of motion. He was assessed as having muscular low back pain. In October 1993, clinical evaluation of his spine and lower extremities revealed normal findings. In August 1994, X-ray studies of his lumbar spine were normal. Later that month, he was assessed as having a history of low back pain. On VA medical examination in December 1994, the veteran was diagnosed as having chronic low back pain possibly due to pelvic obliquity. VA outpatient treatment records, dated from June 1997 to September 1998, show that the veteran was assessed as having degenerative disc disease of the lumbar spine, chronic low back pain and lumbosacral radiculopathy on occasion. In September 1997 and January 1998, it was noted that he had low back pain ever since an injury in 1989. At the January 1999 hearing, the veteran testified that he injured his low back while carrying a heavy piece of equipment in December 1989. He stated that he was placed on light duty for a few weeks following the injuryn and continued to experience low back pain for the remainder of his military service. He indicated that he was pretty sure that he sought medical treatment for his low back disability within the one year following his service separation. He reported that he continued to experience low back pain every day, and that he had not had any low back injury since his service separation. On close scrutiny of the record, the Board concludes that the veteran has not presented evidence of a well-grounded claim of service connection for a low back disability. His service medical records show that he was treated for low back pain on two occasions, but they do not show he incurred a chronic low back disability. Rather, an August 1994 X-ray examination of his lumbar spine revealed normal findings. In addition, while VA examination report shows that he was diagnosed as having chronic low back pain in December 1994, it does not demonstrate that his low back pain was of service origin. Instead, it reveals that it was possibly related to pelvic obliquity. Likewise, although VA outpatient treatment records show that he was assessed as having various low back disabilities, including degenerative disc disease of the lumbar spine, such diagnoses were rendered no earlier than 1997, more than two years after his service separation. Moreover, none of these records demonstrate that the variously diagnosed low back disabilities were of service origin. The Board is aware that the records include notations that the veteran had low back pain ever since an injury in 1989. However, these notations appear to simply reflect his own recitation of complaints, rather than a medical determination. A bare transcription of lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995) Thus, the medical evidence of record does not demonstrate a causal link or nexus between the veteran's low back disability and service, and the degenerative disc disease of his lumbar spine is not shown to have been evident to a compensable degree within the one year presumptive period. Therefore, his claim of service connection for a low back disability is not well grounded. Caluza, 7 Vet. App. at 506. Bilateral Hearing Loss The veteran contends he has bilateral hearing loss due to in- service noise exposure; thus, he maintains that service connection is warranted for bilateral hearing loss. In the case of any veteran who served for 90 days or more during a period of war, an organic disease of the nervous system (sensorineural hearing loss) becoming manifest to a degree of 10 percent or more within one year from the date of separation from such service, shall be considered to have been incurred in or aggravated by 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, 1137 (West 1991 & Supp. 1999); 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 amounts to a disability for VA compensation purposes is governed by 38 C.F.R. § 3.385, which states that 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. If the record shows evidence of in-service acoustic trauma and in-service audiometric results indicate an upward shift in tested thresholds, and if post-service 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 post-service findings to injury in service, or whether they are more properly attributable to intercurrent causes. Hensley, 5 Vet. App. at 159. The veteran's DD Form 214 reflects that he served as an electronic computer and switching systems journeyman for over 7 years of active service. The veteran's service medical records show that his auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10, 5, 15, 10 and 5 decibels, respectively, in the right ear, and 5, 5, 25, 20 and 15 decibels, respectively, in the left ear, on September 1986 service entrance audiological evaluation. In June 1988, his auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 0 decibels at each of the above- tested frequencies, on the right, and 0, 0, 0, 5 and 5 decibels, respectively, in the left ear. In March 1989, his auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10, 5, 10, 10 and 10 decibels, respectively, in the right ear, and 10, 0, 15, 20 and 15 decibels, respectively, in the left ear. In October 1993, his auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10,10, 15, 15 and 20 decibels, respectively, in the right ear, and 10, 15, 15, 25 and 15 decibels, respectively, in the left ear. On August 1994 hearing conservation examination, the veteran reported that he did not know if his hearing had worsened or if he had a hearing loss of any kind. On VA audiological evaluation in December 1994, the veteran's auditory thresholds at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 5, 5, 15, 20 and 20 decibels, respectively, in the right ear, and 5, 10, 25, 30 and 30 decibels, respectively, in the left ear. Speech discrimination was 96 percent correct in the right ear, and 100 percent correct in the left ear. The examiner commented that the veteran's hearing was within normal limits in both ears. VA outpatient treatment records, dated from June 1997 to September 1998, do not show that the veteran received any treatment for bilateral hearing loss. At the January 1999 hearing, the veteran testified that an examiner at the time of his service separation audiological examination advised him that he had lost 25 percent of his hearing in some ranges. He also stated that he repaired computers and was on a flight line during service. He reported being exposed to a lot of noise on a daily basis in service, and that hearing protection was not always available. He also stated that he had not sought treatment for bilateral hearing loss after service, but had trouble hearing people, televisions and radios. In view of the foregoing, the veteran has not presented evidence of a well-grounded claim of service connection for bilateral hearing loss. His service medical records are essentially negative for any symptom or clinical finding of bilateral hearing loss. In addition, his post-service VA audiological evaluation report does not show that he has a bilateral hearing disability under the criteria established at 38 C.F.R. § 3.385. Thus, the medical evidence of record does not demonstrate a current bilateral hearing disability which is of service origin. His claim of service connection for a bilateral hearing loss cannot be viewed as well grounded under such circumstances. Caluza, 7 Vet. App. at 506. Additional Matters The Board has carefully considered the veteran's contentions regarding the etiology of his bronchitis, claimed sinusitis, low back disability and claimed bilateral hearing loss. As a layman, he is not qualified to render such opine as to medical diagnoses, etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In denying the veteran's claims, the Board has considered the matter of resolution of the benefit of the doubt. Yet, the benefit-of-the-doubt rule only applies when a claim is well grounded. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Such is not the case here where the veteran's claims of service connection for bronchitis, sinusitis, a low back disability and bilateral hearing loss are not well grounded. ORDER Service connection for bronchitis is denied. Service connection for sinusitis is denied. Service connection for a low back disability is denied. Service connection for bilateral hearing loss is denied. J. F. Gough Member, Board of Veterans' Appeals