Citation Nr: 0005332 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-08 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of right ankle sprain. 3. Entitlement to service connection for residuals of left leg injury. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from September 1957 to September 1958; from June 1961 to September 1966; and from April 1979 to December 1986 served in the Army National Guard; and according to the retirement point list and a certificate indicative of retirement, the veteran served in the U. S. Army Reserves from December 1986 to May 1995. This matter arises before the Board of Veterans' Appeals (Board) from a July 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to service connection for bilateral hearing loss, residuals of right ankle sprain, and residuals of an injury to the left leg. The Board notes that in April 1997, the veteran amended his claim related to his right ankle to include arthritis. FINDINGS OF FACT 1. Medical evidence suggestive of a nexus between bilateral hearing loss and the veteran's period of service has been submitted. 2. Medical evidence of a nexus between residuals of right ankle sprain and the veteran's period of service has not been submitted. 3. Medical evidence of a nexus between residuals of an injury to the left leg and the veteran's period of service has not been submitted. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for residuals of a right ankle sprain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran's claim of entitlement to service connection for residuals of an injury to the left leg is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION This veteran alleges that he is entitled to service connection for his disabilities of bilateral hearing loss, residuals of a right ankle sprain, and residuals of an injury to the left leg. These matters will be analyzed independently below. In well grounded cases, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be allowed on a presumptive basis for certain disabilities, including sensorineural hearing loss, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) has held that there are three basic evidentiary requirements to establish a well grounded claim for service connection: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of an inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). The Court has further held that the second and third elements of a well grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or 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 post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). Entitlement to service connection for hearing impairment is subject to requirements other than those indicated above. See 38 C.F.R. § 3.385 (1999). The threshold for normal hearing ranges from zero to twenty decibels, and any reading higher than twenty indicates some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, under VA law, service connection may only be granted for impaired hearing when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz reaches a level of 40 decibels or greater. Also, impaired hearing will be considered a disability if the pure tone threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Hearing Loss This veteran contends that his bilateral hearing loss began in service due to his duties in the artillery sometime beginning in 1981. The veteran's service medical records reveal that he had bilateral hearing loss as indicated on the April 1979 examination related to service in the Virginia Army National Guard. In another examination report dated in April 1983 related to the veteran's period with the National Guard, the veteran had some evidence of right ear hearing loss. Further, a report from a November 1986 examination also discloses right ear hearing loss. Additionally, the veteran's record from his period of service in the Army Reserves reveals right ear hearing loss and some evidence of left ear hearing loss as noted in an examination reported dated in September 1990. In the report from an examination dated in September 1993, the veteran also had hearing loss in the right ear and some evidence of hearing loss in the left ear. In this veteran's case, there is no medical evidence of hearing loss during the veteran's period of active military service. The examination report related to the veteran's separation from active service dated in July 1966 was silent for any pertinent findings. On the April 1979 examination report, audiometric testing indicated hearing loss; however, it was noted that this was primarily due to a misunderstanding on the veteran's part and a re-test was within normal limits. There is a progression of hearing loss from 1979 to date, there is no specific clinical data relating the hearing loss to the veteran's period of active service. There is no doubt that the veteran has presented evidence of current hearing loss, as evidenced during the October 1996 VA audiology examination. At that time, the examiner noted bilateral hearing loss and stated that relevant audiology tests resulted in a diagnosis of bilateral mid to high frequency hearing impairment accompanied by fair to poor discrimination ability. The examiner also noted that the veteran's 1993 Reserves training examination revealed bilateral hearing loss and that the veteran reportedly was exposed to artillery blasts over long periods of time during his Reserves training. For the purpose of determining whether the claim is well grounded, the recitation of this history implies that the veteran's hearing loss could be the result of such exposure. It is true that the examiner did not specifically provide a medical opinion to relate any post-service hearing loss to the veteran's period of service. However, the fact that the examiner felt it significant to record such history suggests that it was considered to be medically relevant. While, the examiner's mere recitation of the veteran's exposure to artillery during his period of Reserves would be insufficient to establish a medical nexus between post-service hearing loss and service, the inclusion of this information as part of the noise exposure history does seem to imply a causal relationship. Therefore, the claim must be considered to be well grounded. Right Ankle Sprain The veteran's service records reveal that he sprained his right ankle in October 1961 and again in January 1963. In a clinical record dated in February 1963, the examiner noted that the veteran's right ankle was improving well and that he was fit for duty at that time. The report from the veteran's discharge examination conducted in July 1966 is negative for any pertinent findings. Thus, there is no evidence of record to support residual right ankle disability from the veteran's injuries in service. Further, in a medical statement dated in March 1977, the physician stated that the veteran had been undergoing treatment for the right knee and indicated that the veteran had experienced trauma to the right ankle "a number of years ago" for what appeared to be a superficial injury; therefore, in this respect, the veteran has failed to establish a well grounded claim. See Caluza at 506. Subsequently, the record is silent for any treatment or complaints related to the veteran's right ankle until June 1991, when the veteran sprained his right ankle during Reserves as noted on an emergency care and treatment form dated at that time. In the June 1991 x-ray study, the radiographer noted an old trauma without recent fracture. The condition on departure was noted as improved. Private outpatient records for treatment rendered from 1989 to 1994 essentially relate to treatment for other disabilities. In an August 1994 statement of record from a private podiatrist, the doctor indicated that treatment had been ongoing since 1991 for chronic plantar fasciitis on the right foot. A clinical entry dated in November 1996 reveals slight swelling in the right foot. Further, in August 1997, the veteran was treated for complaints of right ankle pain. An x-ray study conducted at that time revealed mild degenerative changes in the right ankle. However, none of the above clinical records supports that the veteran's post-service right ankle problems are related to any of the veteran's periods of service. Moreover, in the intervening period between the injuries in 1961 and 1963, both of which were resolved prior to discharge, and the 1991 right ankle injury during the veteran's period in the Reserves, there are no clinical data to support ongoing complaints or treatment related to the right ankle. Moreover, as stated above, clinical records following the 1991 injury do not support residual right ankle disability. Thus, in the absence of residual right ankle disability related to the veteran's period of service, the veteran fails to establish a well grounded claim in this respect as well. Caluza at 506. During the veteran's personal hearing conducted in February 1998, the veteran provided testimony to the effect that following the first injury to his right ankle, the veteran was treated in a Public Health Service hospital and for approximately one week, he used crutches. (T.) at 5. Then, again in 1963, the veteran reinjured his right ankle. (T.) at 7, 8. From 1963 to discharge in 1966, the veteran testified that he did not receive any treatment. (T.) at 9, 10. In 1991, during a weekend drill in the Reserves, the veteran stated that he injured his right ankle and that it had to be wrapped for a while. (T.) at 13, 14. The veteran also stated that it was at that time that arthritis was discovered in his ankle. (T.) at 14. From 1991 to date, the veteran stated that he has been treated by the same doctor. (T.) at 14. Moreover, the veteran testified that two private doctors saw him, one of who was an orthopedic specialist, for his right ankle. (T.) at 15, 16. Further, the veteran testified that his right side arthritis includes his right ankle and that treatment rendered from 1989 to date also extended to his right ankle. (T.) at 22. Moreover, during the veteran's October 1999 hearing, the veteran provided essentially the same testimony, noting that he has had multiple injuries over the years to the right ankle. However, where the issue is one that involves medical etiology, such as the nexus between current disability and an inservice injury or disease, the veteran must offer competent medical evidence sufficient to support a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492. In this case, the Board notes that the veteran has not provided evidence of the requisite skills or training so as to render an opinion medically competent. Thus, his statements are not supportive of establishing a medical nexus between post-service right ankle disability and the veteran's period of active service. Id. Absent competent evidence to substantiate a medical link between current disability and service, the veteran fails to establish a well grounded claim. Caluza at 506. Therefore, the veteran's service connection claim must be denied. Left Leg The veteran's service medical records reveal that in June 1988, the veteran injured his left leg while running. The emergency care and treatment form dated on June 6, 1988 discloses that the day before, the veteran injured his left leg in the area of the knee. On examination, the examiner noted full stability, without deformity or masses, and minimal swelling. The examiner assessed a rupture of a muscle or tendon. In a follow-up report dated two days later, the examiner reported no acute pathology with probable muscle injury. Subsequent to that injury, the record includes a private clinical entry dated in October 1989 for complaints of muscle pain in the left leg. Included in private medical records dated in July 1993 are notations of multiple complaints, including left leg pain. In a report from the September 1993 service examination, there is no pertinent notation, findings, or complaints. In private outpatient records for treatment extending from 1994 to 1996, the veteran complained of chronic leg pain. In an August 1996 VA outpatient record, the examiner noted the veteran's history of injury to the left thigh muscle, noting intermittent pain. The veteran asserted during his personal hearing in February 1998 that he injured the left leg during a weekend drill in June 1988 and was diagnosed with a muscle rupture. (T.) at 25. He stated that he continues to experience pain in the area where he was injured. (T.) at 26. The veteran further testified that his doctors have prescribed Voltaren and Clinoril to relieve the pain. (T.) at 28. The veteran also stated that when he injured his left leg, he was on active duty for training. (T.) at 34. The veteran has been taking medication to relieve occasional pain, but has not received any other treatment since the initial injury. (T.) at 35. Overall, the veteran has failed to present competent evidence of current left leg disability that relates to his period of active service. Other than intermittent complaints of left leg pain, the clinical records following the initial 1988 injury do not reveal left leg disability. At that time that the veteran hurt his left leg, the diagnosis was a ruptured muscle, as noted above. Upon examination and pertinent treatment at that time, the examiner noted no acute pathology associated with the left leg. Thus, the veteran's injury to the left leg did not result in residual disability. Furthermore, in the intervening period from the 1988 injury to date, the veteran has not sought treatment for his left leg specifically, other than occasional requests for pain medication. Therefore, the veteran also has not presented competent evidence of current disability. Thus, in this regard, the veteran's claim of entitlement to service connection for residuals of an injury to the left leg necessarily fails. See Caluza at 506. Again, the veteran has not shown that he is medically skilled or qualified so as to render any of his opinions clinically competent. Thus, his statements to the effect that his injury in 1988 that occurred while on a weekend drill resulted in disability that requires ongoing treatment are not competent statements for he purpose of establishing a well grounded claim. See Espiritu at 492. Absent a medical opinion to link the veteran's post-service left leg problems to the incident in service, the veteran fails to provide competent evidence of a medical nexus, as required by the pertinent law and regulations. 38 U.S.C.A. §§ 1110, 1131; see also Caluza at 506. Thus, in this respect, the veteran's claim fails and must be denied. ORDER The claim for service connection for bilateral hearing loss is well grounded. Entitlement to service connection for residuals of right ankle sprain is denied. Entitlement to service connection for residuals of injury to the left leg is denied. REMAND During his October 1999 hearing before a Member of the Board, the veteran stated that when he was in the National Guard beginning in 1979, he did not have a hearing problem at enlistment. Transcript (T.) at 4. Further, he stated that he tended to have a build-up of wax in his ears while he was serving in the Reserves and that such problem was due to exposure to artillery fire. (T.) at 5. Further, the veteran stated that at that time, he was beginning to have problems hearing what others were saying. (T.) at 5. While the VA examiner in 1996 suggests a possible correlation between the veteran's exposure to noise in reserve and National Guard service, there is no definite medical evidence of record to support a finding that exposure to artillery fire during service caused him to experience hearing loss. The 1979 examination showed hearing loss on first exam but normal findings on a retest. The report from the 1983 examination, conducted during the veteran's period in the Reserves, discloses hearing impairment. The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is not implausible. The Department of Veterans Affairs (hereinafter VA) has a statutory duty to assist the appellant in the development of facts pertinent to his well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1993). In light of the above, the Board is of the opinion that the case should be remanded for the following action: The veteran should be afforded an audiometric examination. The examiner should elicit a history of the veteran of the nature and frequency of any noise exposure in military or civilian life. The examiner should review the veteran's reserve/National Guard records, beginning in 1979, and subsequent VA examinations and prive treatment records. Thereafter, the examiner should render an opinion as to whether the veteran's current hearing loss is more likely than not the result of his duties during reserve/National Guard service. The reasoning for the determination should also be set forth. The veteran's claims folder should be provided to the examiner for study in conjunction with this examination. 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. V. L. Jordan Member, Board of Veterans' Appeals