Citation Nr: 0001242 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-47 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an increased rating for right ear hearing loss, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for otitis media, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from October 1942 to September 1945. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). The issues of increased ratings for right ear hearing loss and otitis media will be addressed in the Remand section of this decision. FINDING OF FACT The veteran has failed to submit evidence to justify a belief by a fair and impartial individual that a claim for service connection for left ear hearing loss is plausible. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for service connection for left ear hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service medical records show that on separation examination in September 1945 hearing in the veteran's left ear was 14/15 on whispered voice testing. The diagnosis was mild catarrhal type deafness in the left ear incurred in military service from flying. On VA examinations in October 1947, December 1948 and January 1951, no complaints of hearing problems in the left ear were noted. The veteran's hearing was tested and it was found that ordinary conversation was heard at a distance of 20 feet in the left ear. Hearing in the left ear was considered normal. Uninterpreted VA audiograms dated in November 1953 and June 1955 are also of record. The audiograms reveal speech discrimination scores of 100 percent in the left ear. On VA audiological evaluation in November 1964*, pure tone threshold levels were: HERTZ 500 1000 2000 3000 4000 LEFT 5 (20) 10 (20) 10 (20) N/A 15 (20) *[Prior to July 1966, the VA reported audiometric test results under American Standard Associates (ASA) values. In July 1966, the VA adopted the International Standards Organization (ISO) standard -- the standard applied in 38 C.F.R. § 3.385. The scores in parentheses represent the conversion from the ASA to the ISO values.] Speech recognition was 96 percent in the left ear. Private physician's records show that the veteran was seen in May 1994 at which time he reported that hearing in the left ear had not improved since his last office visit. It was noted that audiometric testing showed substantial hearing loss at all frequencies on the left. The assessment was hearing loss, etiology unclear. Audiometric testing approximately two weeks later was interpreted as showing mild to moderate sensory hearing loss at 250-4000 Hertz and severe loss at 6000-8000 Hertz in the left ear. VA audiological evaluations in June 1994, September 1994 and April 1995 revealed mild to severe sensory hearing loss in the left ear. On VA audiological evaluation in January 1996, pure tone threshold levels were: HERTZ 500 1000 2000 3000 4000 LEFT 50 40 40 65 80 Speech recognition was 94 percent in the left ear. The diagnosis was mild to severe, predominately sensorineural, hearing loss in the left ear. In a private physician's statement, dated in February 1996, it was noted that audiometric testing that month showed reduced hearing in the left ear. In November 1996, the veteran testified that he was on flying status until he suffered ear damage. He indicated that he had hearing loss in service and that his hearing has worsened through the years, though the right ear was worse than the left ear. He stated that he was nearly deaf. He wears hearing aides. He indicated that following service he worked as a construction foreman. He denied suffering any head injury or having any unusual noise exposure after service. See November 1996 hearing transcript. On VA audiological evaluation in November 1996, pure tone threshold levels were: HERTZ 500 1000 2000 3000 4000 LEFT 60 50 45 65 80 Speech recognition was 68 percent in the left ear. The diagnosis was mixed moderate to severe hearing loss in the left ear. On VA audiological evaluation in March 1998, the veteran complained of decreased hearing in the left ear. He stated that he first noticed the problem approximately three years ago when he got off an airplane. Audiometric testing revealed pure tone threshold levels of: HERTZ 500 1000 2000 3000 4000 LEFT 70 55 55 75 80 Speech recognition was 50 percent in the left ear. The diagnosis was moderately-severe to severe hearing loss in the left ear. The examiner noted that although the hearing loss in the left ear was predominately sensorineural, a conductive component at 250 and 500 Hertz could not be ruled out. The examiner further stated that there was no evidence in the service record to attribute the hearing loss now present in the left ear to service. It was noted that hearing tests administered several years after discharge from service (e.g. 1953, 1955, 1964) showed normal hearing in the left ear. The first record of decreased hearing in the left ear was in 1994. In fact, the veteran stated that the hearing loss in the left ear occurred approximately three years ago when he got off an airplane. The examiner summarized that the hearing loss now present in the left ear did not appear to be service related. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy at 81. An allegation of a disorder that 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); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). 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). In order for a claim to be well grounded, there must be competent evidence of a 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 in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Accordingly, to establish a well-grounded claim, there must be competent evidence of incurrence or aggravation of a disease or injury in service, of a current disability and of a nexus between the inservice injury or disease and the current disability. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a disabling disease or injury was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § § 1110 (West 1991 & Supp. 1995); 38 C.F.R. § 3.303 (1995). Service connection may also be granted on a presumptive basis for certain diseases, including sensorineural hearing loss, if the disability becomes manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the applicable presumptive period, direct service connection may be established by evidence demonstrating that a disease or injury was in fact incurred or aggravated during active service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 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. The medical evidence in this case fails to establish that the veteran has hearing loss in the left ear that can be linked to service. In this regard, the Board notes that while the evidence shows that the veteran has left ear hearing loss for VA purposes, the VA examiner who performed the March 1998 examination opined that the left ear hearing loss was unrelated to service. The physician noted that the first record of left ear hearing loss was in 1994, approximately 49 years after discharge from service. The veteran has failed to present any competent medical evidence to support his contention that the current left ear hearing loss is related to any injury sustained in service. In view of the absence of competent medical evidence demonstrating a nexus between the left ear hearing loss and any incident in service, the claim for service connection is not plausible and, therefore, not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). In reaching the decision as to this claim, the Board has considered securing the results of the auditory brainstem response (ABR) test scheduled in April 1998 as noted on the March 1998 VA examination report. Notably, however, there is no indication that these test results would address the key issue of etiology of the post service left ear hearing loss, instead of a determination of the level of the post service disability. See Brewer v. West, 11 Vet. App. 228, 236 (Section 5103(a) duty to advise a claimant of the evidence necessary to complete the application arises only if the resulting evidence would likely render the claim plausible). Accordingly, even under Robinette, the Board concludes that it would not be required to remand the case for further development. The Board rejects the veteran's statements linking any left ear hearing loss to service as probative of a well-grounded claim. Such opinions involve medical causation or medical diagnosis as to the effect that the claim is "plausible" or "possible" as required by Grottveit. As the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) held in Espiritu v. Derwinski, 2 Vet.App. 492 (1992), lay persons are not competent to offer medical opinions, so the assertions of lay persons concerning medical causation cannot constitute evidence of a well-grounded claim. Given the veteran's failure to submit a well-grounded claim, the Board need not reach the benefit of the doubt doctrine. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for left ear hearing loss is denied. REMAND The veteran's seeks increased ratings for service-connected right ear hearing loss and otitis media. The Board notes that by regulatory amendment effective June 10, 1999, changes were made to the schedular criteria for evaluating diseases of the ear and other sense organs, as set forth in 64 Fed.Reg. 25202-252101 (1999) (to be codified at 38 C.F.R. §§ 4.85, 4.86, 4.87). Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply, absent Congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also Marcoux v. Brown, 9 Vet. App. 289 (1996). In this regard, the amended provisions of § 4.86, which govern exceptional patterns of hearing impairment, provides that (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately; and (b) When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table Via, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Tables VI-VII are unchanged. See 64 Fed.Reg. 25209. Based on review of the most recent VA audiological evaluation in March 1998, the veteran's disability picture appears to fall within the purview of exceptional patterns of hearing impairment, and thus may warrant consideration under the amended criteria of 38 C.F.R. § 4.86. See 64 Fed.Reg 25209. Thus the RO has not had an opportunity of initially adjudicating the veteran's entitlement to an increased rating for right ear hearing loss under the recently finalized regulatory changes. Under the new regulations, as discussed above, a 10 percent rating for chronic suppurative otitis media, mastoiditis, or cholesteatoma is warranted during suppuration or with aural polyps. Additionally, hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull are to be rated separately. 64 Fed. Reg. 25202-25210 (to be codified at 38 C.F.R. § 4.87). Chronic nonsuppurative otitis media with effusion (serous otitis media) is to be rated pursuant to hearing impairment. Id. The Board notes that the record contains evidence of tinnitus starting in September 1994. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who have treated him for right ear hearing loss and otitis media since March 1998, the date of the most recent medical evidence of record. After securing any necessary authorizations, the RO should request copies of all indicated records which have not been previously secured and associate them with the claims folder. Failures to respond or negative replies should be noted in writing and also associated with the claims folder. 2. The RO should schedule the veteran for a VA audio-ear disease examination to determine the extent of his right ear hearing loss and otitis media. All necessary tests should be conducted, including an audiogram. The examiner should express an opinion as to whether the veteran has tinnitus and if so, whether it is related to his service- connected otitis media. The rationale for all opinions expressed should be provided. The claims folder and a separate copy of this remand should be made available to and reviewed by the examiner in conjunction with the examination. The RO should inform the veteran of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 3. After the above examination is conducted, the RO should review the claims folder to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO should readjudicate, in light of the additional evidence, the claims for increased ratings for right ear hearing loss and otitis media pursuant to the old and amended regulations. 38 C.F.R. §§ 4.85, 4.86, 4.87. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case, which reflects RO consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals