Citation Nr: 0001913 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 98-16 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for residuals of a laceration to the forehead. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to March 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the claims as not well grounded. It is noted that the RO denied other claims in the November 1997 rating decision. However, the veteran's Notice of Disagreement and Substantive Appeal only addressed the hearing loss and laceration claims. Therefore, these are the only issues over which the Board currently has jurisdiction. 38 C.F.R. §§ 20.200-20.202, 20.301 (1999). The veteran provided testimony at a personal hearing conducted before the RO in October 1998, a transcript of which is of record. FINDINGS OF FACT 1. No competent evidence is on file which relates the veteran's current hearing loss disability to his period of active duty, to include noise exposure therein. 2. Although there is evidence to support a finding that the veteran sustained a laceration to the forehead during service, there is no competent medical evidence that he has any current residuals as a result of the laceration. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 2. The claim of entitlement to service connection for residuals of a laceration to the forehead is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). The threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App 91. 92-93 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim must fulfill three elements: (1) a current disability in the form of a medical diagnosis; (2) appropriate lay or medical evidence of a disease or injury in service or, if appropriate, within an applicable presumptive period; and (3) medical evidence of a link between the disability and the claimed in-service injury or disease. See Caluza, 7 Vet. App. at 506. Alternatively, the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence of post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997. Service connection may also be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same disease. See 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.303(b), 3.309(a); Savage, 10 Vet. App. at 495. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence is necessary to establish a well-grounded claim. Lay assertions of medical causation or a medical diagnosis cannot constitute evidence to render a claim well grounded. Grottveit, 5 Vet. App. at 93. I. Hearing Loss Background. The veteran's ears were clinically evaluated as normal on his November 1942 service examination. His hearing was found to be 15/15 bilaterally on voice testing. The service medical records show no treatment for or a diagnosis of hearing problems during the veteran's period of active duty. On his March 1946 discharge examination, the veteran was found to have no disease or defects of the ears. His hearing was found to be 40/40 bilaterally on watch testing; 20/20 bilaterally on coin click testing; and 15/15 bilaterally on both whispered and spoken word testing. The veteran underwent a VA audiological evaluation in May 1997. At that time, the veteran reported that he had noise exposure during World War II from working in an engine room. It was also noted that he had hearing aids. The audiological evaluation, itself, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 30 40 45 45 55 46 LEFT 40 45 55 55 70 56 Speech recognition scores were 92 percent bilaterally. Based on these results, the examiner diagnosed moderate sensorineural hearing loss, bilaterally. The veteran also underwent a VA general medical examination in May 1997, which made no pertinent findings regarding his hearing loss. Similarly, an April 1997 private medical statement from a Dr. P. Dugel made no pertinent findings regarding the veteran's hearing loss either. The RO sent correspondence to the veteran in July 1997, requesting, in part, all evidence regarding his hearing loss since the time of his discharge to the present. In August 1997, the veteran responded that he believed his hearing loss was due to the noise exposure he experienced while serving in the military during World War II. For example, he reported that his primary job was working in the engine room, and that he would serve as an anti-aircraft gun loader during battle. He further reported that he wore no ear plugs or protective hearing devices at that time. Therefore, he felt that his hearing loss was connected to his military service. Also, he stated that after discharge his hearing loss had increased significantly over the years. Finally, the veteran stated that there was no additional military or medical history available other than what had already been presented and should be on file. Also submitted in August 1997 was a statement from the veteran's spouse who noted that she and the veteran had been married for fifty years. She further stated that since their marriage, the veteran's hearing loss had increased gradually until it had become quite debilitating. Moreover, she stated that they both believed the hearing loss could be traced to the veteran's military service. In a November 1997 rating decision, the RO denied service connection for hearing loss, among other things, as not well grounded. The RO found that there was no record of treatment in service for bilateral hearing loss, and that in order to make the claim well grounded the veteran had to provide evidence which demonstrated that the claimed condition was incurred in or aggravated by military service. The veteran appealed the above decision to the Board. At his October 1998 personal hearing, the veteran testified, in part, about the noise exposure he experienced while on active duty, to include his duties in the engine room and on the anti-aircraft gun. The veteran testified that he first noticed his hearing loss about 15 to 20 years earlier; about 20 years after his discharge from service. His spouse testified that she first noted the veteran's hearing problems about 10 to 15 years earlier. The veteran also testified that after his discharge, he worked as an aircraft mechanic for about 6 months, and did a little flying. Thereafter, he went to work for the telephone company, and underwent several examinations in conjunction with this employment. However, he testified that he had not experienced any ear infections, or any type of post-service acoustic trauma. Additionally, the veteran testified that he was told he was a candidate for hearing aids after taking a hearing test approximately 3 years earlier. Following his hearing, the veteran submitted four lay statements from individuals who served with him during his period of active duty. Among other things, these individuals confirmed the veteran's account of noise exposure during active service, including his duties in the engine room and working with the anti-aircraft gun. In a May 1999 Supplemental Statement of the Case, the RO confirmed and continued the denial of service connection for hearing loss as not well grounded. In a December 1999 statement, the veteran's representative noted that the veteran testified at his personal hearing that he underwent several examinations in conjunction with his employment at the telephone company. Therefore, the representative contended that the claim should be remanded to obtain those records. Legal Criteria. In addition to the rules of service connection cited above, service connection may also be established for certain diseases that were initially manifested, generally to a compensable degree of 10 percent or more, within a specified presumption period after separation from service. This presumption period is generally within the first post-service year. See 38 U.S.C.A. §§ 1110, 1112(a), 1116, 1131, 1133(a), 1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307. This presumption includes organic diseases of the nervous system such as sensorineural hearing loss. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. Analysis. In the instant case, the Board finds that the veteran's claim of entitlement to service connection for hearing loss is not well grounded. Initially, the Board finds that the test for well groundedness, as outlined by Savage, supra, does not apply in the instant case. The veteran was not treated for or diagnosed with hearing problems during his period of active duty. Moreover, the evidence on file first, including the veteran's own statements, show that hearing loss was first noted many years after the veteran's discharge from active duty. Clearly, a chronic hearing loss was not noted during service and, inasmuch as the veteran did not note hearing loss until many years after his discharge, continuity of symptomatology since service is not applicable. The veteran's account of noise exposure during service, as well as the lay statement in support thereof, are presumed credible for the purpose of determining whether his claim is well-grounded. Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Further, the medical evidence shows that the veteran has a current hearing loss disability pursuant to 38 C.F.R. § 3.385. However, no competent medical nexus evidence is on file which relates the veteran's current hearing loss disability to his period of active duty, to include his noise exposure therein. Without such an opinion, the Board must find that the veteran's claim is not well grounded. Caluza at 506. The only evidence to support the claim are the contentions of the veteran and his spouse. Issues of medical diagnosis or medical causation require competent medical evidence in order to have probative value. See Grottveit at 93. Nothing on file shows that either the veteran or his spouse has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, their contentions cannot well ground the claim. Grottveit at 93; Caluza at 504. For the reasons stated above, the Board finds that the claim is not well grounded, and must be denied. As the veteran has not submitted the evidence necessary for a well-grounded claim, a weighing of the merits of the claim is not warranted, and the reasonable doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Laceration Background. The veteran's head and face were clinically evaluated as normal on his November 1942 service examination. However, the evidence does indicate that the veteran had a small scar on his forehead at the time of his entry into service. The service medical records show no treatment for a laceration of the forehead during the veteran's period of active duty. On his March 1946 discharge examination, the veteran's head and face were clinically evaluated as normal. The veteran underwent a VA general medical examination in May 1997. At this examination, the veteran reported, in part, that he sustained a laceration over the right forehead, close to the hairline, in World War II. The veteran stated that he had three to four stitches placed at that time. Following examination of the veteran, the examiner's found that the veteran's in-service laceration had healed well. The examiner stated that he was unable to visualize any scar at the present time. Furthermore, there was no disfiguration or any residual problem with regard to this inactive condition. The veteran's May 1997 VA audiological evaluation made no pertinent findings regarding his laceration claim. Similarly, the April 1997 private medical statement from Dr. Dugel made no pertinent findings regarding the veteran's laceration claim either. In a November 1997 rating decision, the RO denied service connection for, among other things, laceration of the right forehead as not well grounded. The veteran appealed this decision to the Board. At his October 1998 personal hearing, the veteran testified, in part, that he sustained a laceration when some one dropped an empty, five gallon bucket on his forehead as he was coming up the hatch in the engine room. It was noted at the hearing that the veteran indicated that the laceration was to the left temple area, around the hair line. It was further indicated that the veteran had a small residual scar or ridged area that was difficult to see. The veteran testified that the laceration healed adequately, and that he had not experienced any residual pain or ulceration as a result of the laceration. Following his hearing, the veteran submitted four lay statements from individuals who served with him during his period of active duty. Among other things, these individuals confirm that the veteran sustained a laceration to the forehead during active service. Specifically, that he was hit in the forehead by a bucket that some one had dropped down the engine room hatch. In a May 1999 Supplemental Statement of the Case, the RO confirmed and continued the denial of service connection for a laceration of the forehead as not well grounded. Among other things, the RO found that the laceration, if existent, was acute and transitory with no demonstrable residuals. Analysis. In the instant case, the Board finds that the claim of entitlement to service connection for residuals of a laceration to the forehead is not well grounded. As an initial matter, the Board finds that the evidence supports the conclusion that the veteran sustained a laceration to the forehead during service, for the purpose of determining whether the claim is well grounded. Meyer, supra; King, supra. However, no competent medical evidence is on file to show that the veteran has any current disabling residuals from his in-service laceration. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As both the Caluza and Savage tests for well groundedness require medical evidence of a current disability, the Board finds that the veteran's claim is not well grounded and must be denied. Since the veteran has not submitted the evidence necessary for a well-grounded claim, a weighing of the merits of the claim is not warranted, and the reasonable doubt doctrine is not for application. See generally Gilbert, supra. VA has neither the duty nor the authority to assist a claimant in the absence of a well-grounded claim. Morton v. West, 12 Vet. App. 477 (1999); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). However, VA may, dependent on the facts of the case, have a duty to notify the veteran of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). In the instant case, the Board finds that the RO has advised the veteran of the evidence necessary to well ground his claims, and the veteran has not indicated the existence of any pertinent evidence that has not already been obtained or requested that would well-ground either his hearing loss or his laceration claim. McKnight v. Brown, 131 F.3d 1483 (Fed.Cir. 1997); Epps, supra. With respect to the medical examinations from the veteran's employment with the telephone company, the veteran testified that he first began to experience hearing problems many years after his discharge from service. Further, the veteran did not indicate that he was ever told he had hearing loss as a result of any of his employment examinations, or that any medical professional ever related his hearing loss to his period of active duty. The Board further notes that it has been contended that the veteran should be considered a combat veteran and be given the benefit of the provisions of 38 U.S.C.A. § 1154(b). Section 1154(b) relaxes the evidentiary requirement as to the evidence needed to establish the occurrence of an event, i.e., "whether a particular disease or injury was incurred or aggravated in service -- that is, what happened then -- not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required." Caluza, 7 Vet. App. at 507. However, in determining that the hearing loss and laceration claims were not well grounded, the Board has presumed that the veteran's account of what occurred during service are true. Thus, the provisions of 38 U.S.C.A. § 1154(b) would provide no additional benefit to the veteran in the instant case. See Brock v. Brown, 10 Vet. App. 155, 162 ("reduced evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, 'that is, what happened then -- not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required'" (quoting Caluza, 7 Vet. App. at 507)); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition"). ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for residuals of a laceration to the forehead is denied. Gary L. Gick Member, Board of Veterans' Appeals