Citation Nr: 0000375 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-08 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from April 1944 to April 1946 in the Navy, and from October 1948 to June 1952 in the Army. This appeal arises from an August 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a January 1997 statement the veteran reported that he suffered from a constant ringing in his ears, caused by the same inservice trauma as claimed for his right ear hearing loss claim. It appears that no claim for service connection for tinnitus has been developed or adjudicated by the RO. This issue, therefore, is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is no medical evidence of a nexus between any currently diagnosed right ear hearing loss and an inservice injury or disease or any other incident of service. CONCLUSION OF LAW The veteran's claim for service connection for a right ear hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes the veteran submitted a statement in August 1999, subsequent to the last supplemental statement of the case (SSOC) issued by the RO in June 1999. See 38 C.F.R. § 19.31 (1999). When the Board addresses a question not considered by the RO, the Board must consider whether the claimant had notice of that issue and whether the claimant would be prejudiced by lack of such notice. See Barnett v. Brown, 8 Vet. App. 1 (1995); Curry v. Brown, 7 Vet. App. 59, 66 (1994); Bernard v. Brown, 4 Vet. App. 384, 393-395 (1993). As the veteran's contentions in the August 1999 statement are essentially identical to those proffered at his September 1998 personal hearing and in the various statements he has submitted while advancing his claim, the Board finds the veteran is not prejudiced by the Board's consideration of that statement, which has not been previously considered by the RO. Thus, the Board finds a remand for RO consideration and issuance of an SSOC as to this statement is not necessary. Id. The Board notes that the National Personnel Records Center (NPRC) responded to a request for the veteran's Army service medical records (SMR's) with a notice that the records were not available. The RO has indicated the possibility that these records were lost in a fire in 1973 at that facility. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a statutory duty to assist the veteran in obtaining military records. See Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990). Furthermore, in Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), the Court held that the duty to assist is heightened when the service medical records are presumed destroyed and includes an obligation to search alternative forms of medical records which support the veteran's case. Under the regulations governing VA's duty to assist, "[w]hen information sufficient to identify and locate necessary evidence is of record, the Department of Veterans Affairs shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal Agency ...." 38 C.F.R. § 3.159(b). If VA cannot or will not request the records, it has, at a minimum, an obligation to advise the appellant of their relevance to his claim. See Spurgeon v. Brown, 10 Vet. App. 194, 197 (1997). In Hayre v. West, No. 98-7046, slip op. at 7 (Fed. Cir. Aug. 16, 1999), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit) held that a single request for pertinent service medical records (SMR) specifically requested by a veteran and not obtained by the RO does not fulfill the duty to assist. The Court also held that inherent in the duty to assist is a requirement for VA to notify the veteran if VA is unable to obtain pertinent SMR's specifically requested by him or her, so that he or she may know the basis for the denial of his or her claim; may independently attempt to obtain the SMR's; may submit alternative evidence and/or timely appeal. Hayre, at 10-11. The Board notes that the RO has made several attempts, including alternative searches, to obtain these records, all to no avail. The veteran also was notified that alternative searches were necessary to locate his Army SMR's, as indicated by the Request For Information Needed to Reconstruct Medical Records completed by the veteran. As these searches have exhausted all possible venues for obtaining these records, and as the veteran contends his ear trauma occurred during his Navy, rather than his Army service, and has testified he received no medical treatment for his ears while in the Army, the statutory duty to assist has been fully met. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159. Accordingly, the veteran's claim must be adjudicated based on the evidence now of record. Service connection for hearing loss is circumscribed by 38 C.F.R. § 3.385 (1999), as follows: For 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, 1,000, 2,000, 3,000, or 4,000 Hertz, is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies, 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Based on the evidence of record, and applying 38 C.F.R. § 3.385, the veteran clearly did not experience documented hearing loss for VA purposes during his active duty Navy career. However, the lack of any evidence of hearing loss disability at separation is not fatal to the veteran's claim. Laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The key issues are whether the veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and whether there is medical evidence linking the current hearing loss disability to the veteran's period of active service. As noted by the Court: Where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results reflecting an upward shift in test thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting 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 the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The veteran's SMR's contain no evidence of complaints of or treatment for any ear or hearing problems during his Navy service. His April 1946 separation physical examination report indicates that, upon examination, hearing in both his ears was noted to be 15/15 (normal) during whispered and spoken voice testing. While the veteran has indicated in his September 1998 substantive appeal that he did not receive a separation physical examination upon his discharge from the Navy, the Navy separation examination report notes a chest X- ray was performed. A separate report of this chest X-ray appears in the veteran's SMR's. No medical evidence has been introduced indicating the manifestation of a right ear hearing loss to a compensable (10 percent) degree within one year of the veteran's discharge from either Navy or Army active duty service. See 38 C.F.R. § 3.309(a); Opinion of the Under Secretary for Health, Characterization of High Frequency Sensorineural Hearing Loss (Oct. 1995). On an April 1946 service report the veteran indicated he had taken a three (3) month vocational or trade course in a machine shop. In a January 1948 statement, the veteran indicated he had been working for a private building contractor. No evidence of complaints of or treatment for a right ear hearing loss appears of record prior to January 1996. While a private hearing examination dated "1-19-96 & 1-31-97" appears to indicate right ear hearing loss which meets the criteria of 38 C.F.R. § 3.385, the veteran's claim for service connection for that disability is still not well grounded, as there is no medical evidence of record containing a medical opinion relating any right ear hearing loss to the veteran's active duty service. See Boyer v. West, 11 Vet. App. 477, 478 (1998); Wade v. West, 11 Vet. App. 302, 304-306 (1998); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espirutu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the Court has held, the veteran has an obligation to submit competent medical evidence of a nexus between his present left ear hearing loss and his military service. Lay testimony cannot provide such medical evidence because lay persons are not competent to offer medical opinions. Id. During his September 1998 personal hearing the veteran testified that during his Navy career he was a 1st Loader on a 3 inch "50" gun; that the gun was fired only once (one shell) during his tour onboard the Navy ship, in either March or April 1945; that the gun was 12 inches to 18 inches from his right ear; that when the gun was fired his ear immediately began hurting and draining; that he was provided no sound protection; that a pharmacist's mate put sulfa powder in his ear for "many" days; that the Navy told him they would not take him back with a perforated ear drum; that he had told the recruiter about his perforated ear drum; that he worked in construction for 1946-1948; that he was also rejected by the Air Force due to his perforated ear drum; that he went to a private physician after service who told him he had scar tissue in his right ear; that he was in the Korean War during his Army tour of duty; that he was a field wire lineman while in the Army; that he had no treatment for either his ears or for a hearing loss while he was in the Army; that he fired an M-1 rifle during basic training in the Army; that he fired the rifle right handed; that after his Army service he worked for a finance company, a bank, and as a realtor; that he obtained a hearing aid in the 1990's; and that no physician had told him his right ear hearing loss was related to the perforated right ear drum. The only evidence of record which alleges that the veteran's right ear hearing loss was the result of an inservice injury are the veteran's own statements during his personal hearing and in the various documents he has submitted while advancing his claim. However well-intentioned those statements may be, the Board notes that the veteran, as a lay person, is not qualified to offer opinions regarding the etiology of a hearing loss; such determinations require specialized knowledge or training, and, therefore, cannot be made by a lay person. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995), citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), in which the Court held that a veteran does not meet his or her burden of presenting evidence of a well grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions. Where, as here, the determinative issue involves medical etiology, competent medical evidence that the claim is plausible is required in order for the claim to be well grounded. LeShore v. Brown, 8 Vet. App. 406, 408 (1995). While the veteran has not contended that he was in combat either during World War II or in Korea, even if that were the case, the veteran's claim would still be not well grounded, as the issue is not whether the veteran suffered an inservice injury to his right ear, but whether there is medical evidence of record relating his current right ear hearing loss to his active duty service. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). The Court has held that the "term 'service connection," is used in section 1154(b) to refer to proof of incurrence or aggravation of [a] disease or injury in service, rather than to the legal standard for entitlement to payments for disability." See Kessel v. West, No. 98-772, slip op. at 2 (U. S. Vet. App. Sept. 20, 1999); Velez v. West, 11 Vet. App. 148, 153 (1998); Caluza, 7 Vet. App. at 507. The effect of this law is that service connection will not be precluded for combat veterans simply because of the absence of notation of a claimed disability in the official service records. However, the law does not create a presumption of service connection, and service connection remains a question which must be decided based on all the evidence in the individual case. See Smith v. Derwinski, 2 Vet. App. 137 (1992). The veteran must still proffer competent medical evidence of a causal nexus between the claimed disability and service where the question involves medical causation or diagnosis, such as in the instant case. See Wade v. West, 11 Vet. App. 302, 305 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). As noted by the Court in Brock v. Brown, 10 Vet. App. 155 (1997), "the evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) related only to the question of service incurrence, that is, what happened then - - not the questions of either current disability or nexus to service ...." (emphasis in original); Brock, at 162 (quoting Caluza, 7 Vet. App. at 507). 38 U.S.C.A. § 1154(b) also does not constitute a substitute for evidence of the continuation of symptoms subsequent to service. (emphasis in original); Kessel, at 19. Where "the determinative issue is nexus, i.e., the causal linkage between an injury incurred in combat and a current disability, Arms and section 1154(b) are not applicable." Kessel, at 21-22. Consequently, as a well grounded claim for service connection for a hearing loss requires medical evidence of a nexus between an inservice injury or disease and the current disability in order to be plausible, as noted above, and no such evidence has been submitted, the veteran's claim for service connection for a bilateral hearing loss must be denied as not well grounded. The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make the veteran's service connection claim "plausible." See generally McKnight v. Gober, 131 F.3rd 1483, 1484-85 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). ORDER Service connection for a right ear hearing loss is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals