Citation Nr: 0007580	
Decision Date: 03/21/00    Archive Date: 03/28/00

DOCKET NO.  98-17 203	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for residuals of back 
injury. 

3.  Entitlement to service connection for residuals of skull 
fracture.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. L. Kane, Associate Counsel


INTRODUCTION

The appellant had approximately six years of active military 
service, including a period of service from December 1980 to 
December 1983. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Boston, Massachusetts, which, in pertinent part, denied the 
benefits sought.


FINDINGS OF FACT

1.  The appellant does not currently have a hearing loss 
disability as defined by applicable law.

2.  The appellant currently has disc space narrowing of the 
lumbar spine, which is not related to disease or injury in 
service.

3.  The appellant's skull fracture existed prior to entry 
into service and is not the result of disease or injury in 
service, nor did it increase in severity due to his military 
service.

4.  The appellant's claims are not plausible.


CONCLUSIONS OF LAW

1.  The claims for service connection for hearing loss and 
residuals of back injury are not well grounded, and there is 
no statutory duty to assist the appellant in developing facts 
pertinent to these claims.  38 U.S.C.A. § 5107 (West 1991).

2.  The appellant's skull fracture preexisted his entry into 
active military service.  38 U.S.C.A. §§ 1111 and 1132 (West 
1991); 38 C.F.R. § 3.304(b) (1999).

3.  The appellant's skull fracture was not aggravated by his 
period of active military service, and service connection is 
therefore not warranted.  38 U.S.C.A. §§ 1110, 1111, 1131, 
1132, and 1153 (West 1991); 38 C.F.R. §§ 3.304 and 3.306 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred in the line of duty in the active 
military service or, if pre-existing such service, was 
aggravated during service.  38 U.S.C.A. §§ 1110 and 1131 
(West 1991); 38 C.F.R. § 3.303(a) (1999). It is the 
responsibility of a person seeking entitlement to service 
connection to present a well-grounded claim.  38 U.S.C.A. 
§ 5107 (West 1991).

Generally, a well-grounded claim is a "plausible claim, one 
which is meritorious on its own or capable of 
substantiation."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  In order to be well grounded, a claim for service 
connection must be accompanied by supporting evidence that 
the particular disease, injury, or disability was incurred in 
or aggravated by active service; mere allegations are 
insufficient.  Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 
(1992); Murphy, 1 Vet. App. at 81.  

A claim for service connection requires three elements to be 
well grounded.  It requires competent (medical) evidence of a 
current disability; competent (lay or medical) evidence of 
incurrence or aggravation of disease or injury in service; 
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability.  Epps 
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied, 
sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. 
Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 
(Fed.Cir. 1996) (table).  Generally, the Board should 
consider only the evidence that is or may be favorable to the 
claim in deciding whether a claim is well grounded.  See Arms 
v. West, 12 Vet. App. 188, 195 (1999) (noting that generally 
"only the evidence in support of the claim is to be 
considered and generally a presumption of credibility 
attaches to that evidence in order to decide whether or not 
any VA claimant has sustained the claimant's burden of 
submitting a well-grounded claim under section 5107(a)") 
(emphasis in original).

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.  Brewer v. 
West, 11 Vet. App. 228, 231 (1998); see also Savage v. Gober, 
10 Vet. App. 488, 495-97 (1997).  Alternatively, service 
connection may be established under 38 C.F.R. § 3.303(b) by 
evidence of (i) the existence of a chronic disease in service 
or during an applicable presumption period under 38 C.F.R. § 
3.307 and (ii) present manifestations of the same chronic 
disease.  Brewer, 11 Vet. App. at 231.

The Board has reviewed all the evidence of record, which 
consists of the appellant's service medical, reports of VA 
examinations conducted in 1998, and the appellant's 
contentions.  The evidence pertinent to each issue is 
discussed below.

Hearing loss

Service connection may also 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 and 1112 
(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307 
and 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 and 3.309 (1999); see Under 
Secretary for Health letter (October 4, 1995) (It is 
appropriate for VA to consider sensorineural hearing loss as 
an organic disease of the nervous system and, therefore, a 
presumptive disability.)

With respect to hearing loss, VA has specifically defined 
what is meant by a "disability" for the purposes of service 
connection.  38 C.F.R. § 3.385 (1999).  ("[I]mpaired 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.").

The requirements for service connection for hearing loss as 
defined in 38 C.F.R. § 3.385 need not be shown by the results 
of audiometric testing during a claimant's period of active 
military service in order for service connection to be 
granted.  The United States Court of Appeals for Veterans 
Claims (formerly the United States Court of Veterans Appeals) 
(Court) has held that 38 C.F.R. § 3.385 did not prevent a 
claimant from establishing service connection on the basis of 
post-service evidence of hearing loss related to service when 
there were no audiometric scores reported at separation from 
service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  
The Court has also held that the regulation did not 
necessarily preclude service connection for hearing loss that 
first met the regulation's requirements after service.  
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a 
claimant who seeks to establish service connection for a 
current hearing disability must show, as is required in a 
claim for service connection for any disability, that a 
current hearing disability is the result of an injury or 
disease incurred in service, the determination of which 
depends on a review of all the evidence of record including 
that pertinent to service.  38 U.S.C.A. § 1110 (West 1991); 
C.F.R. §§ 3.303 and 3.304 (1999); Hensley, 5 Vet. App. at 
159-60.

The appellant is not entitled to direct or presumptive 
service connection for hearing loss because the medical 
evidence does not show that he has a current disability.  
Although audiograms conducted during his period of military 
service demonstrated that he had met the requirements for a 
hearing loss disability for the left ear and he complained of 
hearing loss upon separation from service, he does not 
currently have hearing loss, which is required for a grant of 
service connection.  None of the auditory thresholds between 
500 and 4000 Hertz for the right ear were 26 decibels or 
higher upon VA examination in 1998, and only one of the 
auditory thresholds between 500 and 4000 Hertz for the left 
ear was greater than 26 decibels.  His speech recognition 
score on the Maryland CNC Test in 1998 was 96 percent 
bilaterally.  

Therefore, the appellant does not have a current hearing loss 
disability according to VA regulations.  Since there is no 
competent medical evidence of a current disability, the claim 
for service connection for hearing loss is not well grounded.

Residuals of back injury

The appellant currently has disc space narrowing of the 
lumbar spine.  His service medical records do not show 
treatment for any back disorders or injuries.  Upon 
separation from service, he did complain of recurrent back 
pain, but it was noted that he had had no recent problems.  
The appellant maintains that he injured his back during 
service while playing football.  His statements are accepted 
as true for the purpose of determining whether a well-
grounded claim has been submitted.  King v. Brown, 5 Vet. 
App. 19, 21 (1993).

However, there is no competent medical nexus evidence to 
associate the current disc space narrowing of the lumbar 
spine with a disease or injury during service.  Incurrence in 
service is not factually shown since the appellant did not 
seek treatment during service for any back problems.  The 
medical evidence does not show complaints of back-related 
symptomatology until 1998, and the appellant has not 
indicated that he sought treatment for these complaints prior 
to that time.  The medical evidence does not show diagnosis 
of a chronic back disorder until 1998, which was 15 years 
after the appellant's separation from service.  There is no 
evidence showing that a chronic back disorder was present 
prior to 1998.  At no time has a medical professional 
indicated that the appellant's current disc space narrowing 
of the lumbar spine is in any manner related to his military 
service or that it began during service. 

The appellant has made statements suggesting that he has had 
back pain ever since his military service.  He is certainly 
competent to report experiencing such symptoms.  Even 
accepting his statements as representative of continuity of 
symptomatology, there is no competent medical opinion of 
record showing that the current disc space narrowing of the 
lumbar spine is related to any prior symptoms he may have 
experienced.  Cf. Savage, 10 Vet. App. at 497.  Nexus is not 
shown by post-service continuity of symptoms.  The complaints 
of back symptoms upon separation from service in 1983 and 
upon VA examination in 1998 are too remote from each other to 
support a finding that they represent continuity of 
symptomatology.  Therefore, the Board concludes that this 
claim is not well grounded.

Conclusion regarding hearing loss
and back claims

The only evidence indicating that the appellant currently has 
hearing loss and that his current lumbar spine disorder is 
related to his military service consists of his current 
statements.  However, he cannot meet his initial burden under 
38 U.S.C.A. § 5107(a) by simply presenting his own opinion.  
He does not have the medical expertise to render a probative 
opinion as to medical diagnosis or causation.  See Edenfield 
v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 
8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 
91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  

Until the appellant establishes a well-grounded claim, VA has 
no duty to assist him in developing facts pertinent to the 
claim, including providing him additional medical 
examinations at VA expense.  38 U.S.C.A. § 5107(a) (West 
1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be 
authorized where there is a well-grounded claim for 
compensation); see Morton v. West, 12 Vet. App. 477 (1999) 
(VA cannot assist a claimant in developing a claim that is 
not well grounded).

When 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 
(Fed. Cir. 1997).  VA has no outstanding duty in this case to 
inform the appellant of the necessity to submit certain 
evidence to complete his application for VA benefits.  See 
38 U.S.C.A. § 5103(a) (West 1991).  There is no indication of 
any medical records that might well ground either of these 
claims.  The appellant has not alleged that any medical 
records exist that would show that he currently has hearing 
loss or that would contain medical opinions associating the 
current disc space narrowing of the lumbar spine with his 
period of service.

The Board notes that the appellant submitted a release for 
the RO to obtain his records from Carney Hospital, and his 
representative has argued that a remand is necessary so that 
these records can be obtained.  The Board disagrees.  The 
appellant did not indicate the date(s) he was treated at 
Carney Hospital or for which disorder.  As indicated above, 
he has not alleged that any records exist that would well 
ground his claims for service connection.  VA has no 
obligation to obtain these records since there is no 
indication in the record that they are relevant or necessary 
for fair adjudication of the appellant's claims.

The presentation of a well-grounded claim is a threshold 
issue.  Therefore, since the appellant has failed to present 
competent medical evidence that his claims for service 
connection for hearing loss and residuals of a back injury 
are plausible, the claims must be denied as not well 
grounded.  Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. 
Brown, 6 Vet. App. 14, 17 (1993).  There is no duty to assist 
further in the development of these claims, because such 
additional development would be futile.  See Murphy, 1 Vet. 
App. 78.

Residuals of skull fracture

A veteran who served during a period of war or during 
peacetime service after December 31, 1946, is presumed to be 
in sound condition when he entered into military service 
except for conditions noted on his entrance examination.  
38 U.S.C.A. §§ 1111 and 1132 (West 1991); 38 C.F.R. 
§ 3.304(b) (1999).  The initial question that must be 
resolved in this case is whether the appellant's skull 
fracture preexisted his entry into active military service.  
In this case, the evidence clearly shows that it did.  Upon 
entrance examination in 1977, he reported a history of a head 
injury.  It was noted that he had incurred a skull fracture 
when he was seven years old and had undergone operations for 
this condition at Carney Hospital because he had paralysis on 
the left side.  At separation from service, the appellant 
reported incurring a skull fracture when he was five years 
old.  Therefore, the evidence clearly shows that the 
appellant incurred a skull fracture prior to his entry into 
service, and he is not entitled to the presumption of 
soundness.

The pertinent issue is whether the appellant's preexisting 
skull fracture was aggravated by his period of active 
military service.  He argues that he incurred another skull 
fracture during service while on leave in Los Angeles in 
1978.  He states that he was involved in an altercation, 
which he did not report for fear of being disciplined.  Upon 
VA examination in 1998, he stated that he was unconscious for 
about 20 minutes after the in-service injury and that he was 
hospitalized in Los Angeles for three days.  

A preexisting injury or disease will be considered to have 
been aggravated by active service where there is an increase 
in disability during service.  Where the evidence shows that 
there was an increase in disability during service, there is 
a presumption that the disability was aggravated by service.  
In order to rebut the presumption of aggravation, there must 
be clear and unmistakable evidence (obvious or manifest) that 
the increase in severity was due to the natural progress of 
the disability.  38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 
3.306(a) and (b) (1999).  There is no aggravation of a 
preexisting disease or injury if the condition underwent no 
increase in severity during service on the basis of all of 
the evidence of record pertinent to the manifestations of the 
disability prior to, during, and subsequent to service.  
38 C.F.R. § 3.306(b) (1999).  The usual effects of medical 
and surgical treatment in service, having the effect of 
ameliorating disease or other conditions incurred before 
enlistment will not be considered service connected unless 
the disease or injury is otherwise aggravated by service.  38 
C.F.R. § 3.306(b)(1) (1999).

The medical evidence does not show that the appellant's skull 
fracture increased in disability during service.  Initially, 
it must be noted that the appellant has not specified which 
symptoms/disorders he feels have resulted from the prior 
skull fracture.  Examining the medical evidence during his 
period of active military service, he never reported 
incurring a skull fracture during service, and there are no 
notations that any of his in-service symptoms/disorders 
resulted from such an injury.  The appellant's representative 
has pointed to treatment during service for such things as a 
fractured nasal bone and deviated nasal septum.  It is true 
that the appellant received treatment for such conditions 
during service.  It is not known, however, whether these 
conditions were the result of a prior "skull fracture."  
What is known is that the appellant never reported incurring 
such an injury during service, even upon his separation 
examination at which point any fears of discipline were 
irrelevant.  Therefore, there is no evidence of an increase 
in disability during service, either from aggravation of the 
preexisting skull fracture or from incurrence of a second 
head injury. 

Review of the post-service medical evidence also does not 
disclose any evidence of aggravation of the appellant's skull 
fracture.  Rather, the post-service findings support the 
conclusion that there was no increase in severity during 
service.  There is no evidence of any post-service complaints 
related to a prior skull fracture.  The evidence does not 
show that the appellant has been treated for any symptoms 
related to a prior skull fracture since his separation from 
service 17 years ago, so any symptoms he has experienced have 
not been so severe that he has found it necessary to seek 
treatment.  The fact that he has not sought medical treatment 
for any symptoms connected to a skull fracture supports the 
conclusion that this preexisting disorder was not aggravated 
by his active service.  Even currently, there remains a lack 
of medical evidence showing that the appellant has any 
residuals from either the pre-service skull fracture or the 
alleged in-service skull fracture.  He has raised no specific 
complaints as to symptoms/disorders he feels have resulted 
from these injuries.  Upon VA examination, he merely 
recounted a history of incurring these injuries, without 
discussing any current complaints, and no diagnosis of any 
disorder as a residual of a skull fracture has been rendered. 

Despite the fact that the appellant incurred a skull fracture 
prior to service or allegedly incurred a skull fracture 
during service, there must be current, ascertainable 
residuals from such injuries in order to warrant service 
connection.  There are none in this case.  No medical 
professional has indicated that the appellant's skull 
fracture worsened as a result of his military service.  The 
appellant has not alleged that he has experienced any 
continuous symptoms since service.  As indicated above, the 
appellant is not competent to state that he has increased 
disability as a result of the alleged in-service skull 
fracture, and, in this case, he has not maintained that he 
has such disability because he has raised no specific 
complaints in connection with this claim.  

All of the evidence of record in this case pertinent to the 
manifestations of the disability prior to, during, and 
subsequent to service shows that the appellant's preexisting 
skull fracture underwent no increase in severity during 
service and was not aggravated by service.  Therefore, the 
preponderance of the evidence is against his claim for 
service connection.  This condition existed prior to service 
and was not aggravated during service because there is no 
competent evidence of an increase in the basic level of the 
preexisting disorder during service.  





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ORDER

The appeal is denied.



		
	M. G. MAZZUCCHELLI
	Acting Member, Board of Veterans' Appeals