Citation Nr: 0001725 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-12 445A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from September 1964 to January 1970. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1998 by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Medical evidence indicates that the veteran currently sustains bilateral hearing loss. 2. Lay evidence indicates that it is plausible that the veteran incurred noise trauma in-service. 3. There is no competent evidence of a nexus between any in- service injury or disease and the veteran's current bilateral hearing loss. CONCLUSION OF LAW The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). The veteran submitted to a VA examination for organic hearing loss in March 1998. Audiometry revealed puretone thresholds above 40 decibels at the 2,000, 3,000, and 4,000 hertz frequencies, bilaterally. Accordingly, he has a hearing loss disability, 38 C.F.R. § 3.385, and the first element of a well grounded claim is met. The second element of a well grounded claim - the in-service occurrence or aggravation of a disease or injury - can be proven by medical, or in certain circumstances, lay evidence. The veteran's service medical records do not indicate any complaints of or treatment for hearing loss or any other ear problem. The veteran's enlistment examination, dated September 1964, includes audiometer readings within normal limits. His separation examination report, dated in January 1970, does not include audiometry readings, but indicates normal whispered-voice test results (15/15) and the accompanying report of medical history, completed by the veteran, relates that he never had hearing loss problems. However, the veteran testified at his August 1998 hearing before the RO that, while stationed in Germany in 1966, he was exposed to extremely loud gun shots while refueling a tank and has since had hearing loss and ringing in both ears. Transcript of Hearing (Transcript) at 2, 7. His lay testimony regarding exposure to loud gun shots at least renders plausible his contention that he incurred a hearing loss in service. Thus, the second element of a well grounded claim is satisfied. Notwithstanding the above findings, the veteran's claim for entitlement to service connection for bilateral hearing loss fails because he has not presented competent (medical) evidence of a nexus between his current hearing loss disability and any injury or disease in service. The veteran testified that in 1975 he saw a private doctor for his hearing loss and that the doctor "told me that the damage to my ears was irreparable and the only thing I could do would be to wear hearing aids." Transcript at 4. He stated that he did not obtain hearing aids at that time because he could not afford them. Transcript at 5. There is no written record of a 1975 hearing examination, and the veteran testified that he could not recall the name of the doctor who confirmed his hearing loss. Transcript at 6. The veteran also testified that while visiting an ear, nose and throat doctor in 1997, he was examined by a hearing specialist who "did a bunch of tests and everything" and who "basically said the same things that they said back in 1975 or thereabouts. That the only thing I could do with it is get a hearing aid." Transcript at 6. However, the veteran has not submitted any medical evidence/opinion relating his hearing loss disability to events in service, including noise trauma. While the veteran is certainly capable of describing his symptoms, he does not possess the requisite medical knowledge to opine on a matter involving medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (layperson is generally not competent to render an opinion on a matter requiring medical knowledge, such as diagnosis or causation). Therefore, his lay opinion is insufficient to establish a nexus between his current hearing loss and any noise trauma in-service. Although the findings on March 1998 VA examination establish that the veteran has a current bilateral hearing loss disability, they do not indicate that his hearing loss had its genesis in service. Absent medical evidence of a nexus between an in-service injury or disease and a current disability, the Board finds that the veteran's claim for entitlement to service connection for bilateral hearing loss is not well grounded, and must be denied. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). ORDER Service connection for bilateral hearing loss is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals