Citation Nr: 0000586 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 97-30 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to an increased disability rating for the residuals of a gunshot wound of the right shoulder with acromioclavicular (AC) traumatic arthritis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from November 1964 to November 1967. This appeal arises from rating decisions of the Winston- Salem, North Carolina, Regional Office. The appeal for service connection for hearing loss disability arises from a rating decision of April 1997. The veteran appealed this decision to the Board of Veterans' Appeals (Board) and in an August 1998 decision, the case was remanded to the RO for additional evidentiary development. This issue is again before the Board for consideration. The appeal for an increased disability rating for the residuals of the gunshot wound to the right shoulder arises from a rating decision of January 1998. This decision will address the issue of service connection for hearing loss. The remand that follows will address the increased rating issue. FINDING OF FACT No medical evidence has been presented or secured to render plausible a claim that any current hearing loss is the result of a disease or injury incurred in service. CONCLUSION OF LAW The claim for service connection for hearing loss is not well grounded, and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Hearing loss Service connection may be established for a current disability based on different legal theories of entitlement. "Direct" service connection may be established by showing that a disease or injury had its onset in service or by showing that a current disability is a result of a disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). In general, establishing "direct" service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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 (1999). Service connection may be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Service connection for sensorineural hearing loss may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (1999). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A well-grounded claim for direct service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that 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 showing 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); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. The Board has reviewed all the evidence of record. On the audiological evaluation in November 1964 at entry into service, pure tone thresholds, in decibels, were as follows (based on conversion from ASA standards to ISO-ANSI standards): HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 15 20 LEFT 25 25 15 15 20 On the audiological evaluation in October 1967 for release from active duty, pure tone thresholds, in decibels, were as follows (based on conversion from ASA standards to ISO-ANSI standards): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 LEFT 15 10 10 5 The report of medical history, also dated in October 1967 for release from active duty, notes the veteran indicated that he did not have ear trouble or hearing loss. On the VA audiological evaluation in September 1996, pure tone air conduction thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 25 60 60 LEFT 10 15 55 90 85 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. On the VA audiological evaluation in November 1996, pure tone air conduction thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 20 65 60 LEFT 5 15 50 85 85 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. The audiological case history notes that the veteran reported the onset of hearing loss 15 years previously with gradual progression. On the VA audiological evaluation in January 1999, pure tone air conduction thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 70 75 LEFT 25 25 55 90 90 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 82 percent in the left ear. In the report summary, the examiner indicated that based on a review of the service medical records and the claims file, it was not likely that the veteran's present sensorineural hearing loss was related to service. Here, the veteran was first shown to have hearing loss by VA standards in 1996. See 38 C.F.R. § 3.385 (1999). Therefore, the Board finds that there is sufficient medical evidence of a current disability, and the first element of a well- grounded claim has been satisfied. The veteran's DD-214 indicates that his military occupational specialty (MOS) was infantryman and he was awarded the Combat Infantryman Badge and a Purple Heart. See 38 U.S.C.A. § 1154(b) (West 1991). He has given a history of noise exposure from exposure to artillery and gunfire noise, with explosive devices, throughout his military career. The veteran's statements are consistent with the circumstances of his service. Therefore, the Board finds that there is sufficient lay evidence of incurrence of an injury during service, and the second element of a well-grounded claim has been satisfied. However, the veteran has not satisfied the third element of a well-grounded claim for service connection. He has reported having hearing loss symptomatology since active service. Presuming this history to be credible for the purpose of establishing a well-grounded claim, there is still no medical evidence of record of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 497 (holding that veteran's own testimony that he sustained a back injury in service, walked with a limp ever since, and received heat treatments over the years is presumed credible for the purpose of establishing a well grounded claim because it is not inherently incredible or beyond the competence of a lay person to observe and continuity of symptomatology had therefore been established even if the record did not contain service medical records showing treatment in service for a back problem); see Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (per curiam order noting Board's fundamental authority to decide a claim in the alternative). Medical expertise is required to relate the present disability etiologically to the veteran's post-service symptoms. However, there are no medical opinions contained in any of the veteran's post- service medical records relating his current hearing loss to any inservice finding or event or to the post-service symptomatology. To the contrary, the VA examiner in January 1999 determined that it was not likely that the veteran's hearing loss was related to active service. While the veteran reported that this examiner told him that his hearing loss was related to inservice noise exposure, "hearsay medical evidence" does not constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (1995). Although the veteran may have continuously experienced hearing loss symptomatology since active service, there is no medical evidence in the record at all tending to show that there were underlying chronic disability which caused the symptoms in service and that that underlying disability also has caused all the intermittent complaints of symptomatology experienced since service. Similarly, there is no medical evidence tending to show that the symptoms in service represented chronic hearing loss disability rather than acute and transitory condition. While the veteran has ascribed his current disability to active service, his statements do not constitute competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board is cognizant that the veteran engaged in combat with the enemy; however, there still must be medical evidence tending to show that a nexus, or link, between an inservice disease or injury and the current hearing loss is plausible. See Wade v. Brown, 11 Vet. App. 302, 304-5 (1998); see also Arms v. West, 12 Vet. App. 188 (1999); Kessel v. West, No. 98-772 (U.S. Vet. App. Sept. 20, 1999). As discussed above, there is no such evidence in this case. Because no medical evidence has been presented or secured to render plausible a claim that any current hearing loss disorder diagnosed many years after service had its onset in service or is the result of, or related to, any disease contracted or injury sustained in active military service, the Board concludes that this claim is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground the appellant's claim for service connection for hearing loss. Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to the veteran's claim under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Having found the claim not well grounded, entitlement to service connection for bilateral hearing loss disability is denied. REMAND Residuals of a gunshot wound of the right shoulder with AC traumatic arthritis The veteran has indicated that the residuals of the gunshot wound to the right shoulder are more severe than reflected by the 30 percent disability rating assigned. The veteran has not received a VA examination to assess the present level of disability of his shoulder during the period of his current claim and appeal. Accordingly, this case must be returned to the RO for examination of the veteran. VA medical records indicate the veteran has complained of pain, numbness, and tingling in his upper back and into his arms with the symptoms being more severe on the right. The record does not contain medical evidence to show whether the veteran's claimed neurologic symptoms are related to his service connected gunshot wound residuals or whether the symptoms are related to causes that are not service connected. Therefore, this case will be returned to the RO for additional examination of the veteran to determine whether the claimed neurologic symptoms are related to the residuals of the gunshot wound to the left shoulder. The Court has held that the duty to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1999), as set forth in Littke v. Derwinski, 1 Vet. App. 90 (1990), requires that the VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, this case is REMANDED for the following: 1. Request that the veteran provide a list of those (VA and private medical providers) who have treated him for any right shoulder disorder since 1998. Obtain all records of any treatment reported by the veteran that are not already in the claims file. If any private treatment is reported and the records are not obtained, the veteran and his representative should be told of the negative results and of the veteran's ultimate responsibility to provide the records. 38 C.F.R. § 3.159 (1999). 2. Schedule the veteran for an appropriate VA examination(s) of the right upper extremity. The examiner(s) should be provided a copy of this remand together with the veteran's entire claims folder, and the examiner(s) is asked to indicate that he or she has reviewed the claims folder. All necessary tests, including x-rays if indicated, should be conducted and the examiner(s) should review the results of any testing prior to completion of the report(s). The examiner(s) should identify all residuals attributable to the veteran's service-connected residuals of a gunshot wound of the right shoulder with AC traumatic arthritis, to include any scars, muscle, neurological, and orthopedic residuals. The examiner should note the range of motion for the right shoulder (forward elevation, abduction, internal rotation, and external rotation as expressed in degrees and as measured by a goniometer) and should state what is considered normal range of motion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner(s) is asked to describe whether pain significantly limits functional ability during flare-ups or when the right shoulder is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner(s) should specifically discuss the severity of any muscle impairment, and identify which, if any, muscle groups are involved. 38 C.F.R. § 4.73 (1999). The examiner(s) should state whether there are any neurological residuals associated with the veteran's service- connected right shoulder disorder and identify any nerves involved. The examiner should also specifically discuss the extent, if any, of paralysis of the nerves involved. 38 C.F.R. § 4.124a (1999). The examiner(s) should also describe in detail the veteran's scars, to include the length and width. The examiner(s) should note whether there is any tenderness or pain on objective demonstration and any ulceration and whether or not the scar(s) are poorly nourished or superficial or impose any limitation on function. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). The examiner(s) must provide comprehensive report(s) including complete rationales for all conclusions reached. If further testing or examination by other specialists is determined to be warranted in order to evaluate the residuals of the conditions in issue, such testing or examination is to be accomplished. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested examination(s) do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the veteran's claim, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand, including the VA examination(s). See Esteban v. Brown, 6 Vet. App. 259 (1994). 5. If the decision with respect to the claim remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. 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). The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. 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. P.M. DILORENZO Acting Member, Board of Veterans' Appeals