Citation Nr: 0004739 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-23 285 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from July 1955 to March 1959. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision which denied service connection for bilateral hearing loss. In May 1998, the veteran testified at a videoconference hearing held before the undersigned Member of the Board in Washington, D.C. By decision of September 1998, the Board remanded this case to the RO for further development of the evidence and for due process development. FINDINGS OF FACT 1. Attempts to obtain all available evidence necessary for an equitable disposition of the veteran's appeal have been made by the RO. 2. The record contains no competent medical evidence linking the veteran's currently-diagnosed bilateral hearing loss with his military service, and the claim for service connection is not plausible. CONCLUSION OF LAW The claim for service connection for bilateral hearing loss is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the veteran contends that he has bilateral hearing loss which originated during his military service. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Additionally, the pertinent laws and regulations provide that sensorineural hearing loss will be presumed to have been incurred in service if it becomes manifest to a degree of ten percent or more within one year of 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 regulations pertaining to hearing loss provide that, for the purpose of applying the laws administered by the 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 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. 38 C.F.R. § 3.385 (1999). The threshold question in this case is whether the appellant has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not presented a well- grounded claim, the claim must fail, and there is no further duty to assist him in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been affirmed by the U.S. Court of Appeals for the Federal Circuit in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1999) (hereinafter "the Court"), which held that it would be error for the Board to proceed to the merits of a claim which is not well-grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996), the Court outlined a three-prong test to determine whether a claim is well-grounded. The Court held that, in order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). The Court has also stated that a claim must be accompanied by supporting evidence; a mere allegation is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well-grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). Evidentiary assertions by the veteran must be accepted as true for the purpose of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible, or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes that the veteran in this case has offered his own medical opinion that his current hearing loss is the result of exposure to noise in service, but he is not competent to render such medical opinion as to the etiology of his hearing loss, as the record does not indicate that he has any professional medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). The veteran's mere assertion that his bilateral hearing loss had its onset in service does not make the claim well-grounded if there is no competent medical nexus evidence linking any disability in service to his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met, and whether the veteran's assertions are supported by the evidence of record. The veteran's DD Form 214 indicates that his military occupational specialty was field artillery crewman. The service medical records are unavailable, presumably having been destroyed in a fire years ago at the National Personnel Records Center. In January 1997, the veteran submitted a claim for service connection for bilateral hearing loss. He contended that his hearing loss began during service as a result of noise exposure from his military occupational specialty of gunner in an artillery unit, and that he had to refrain from wearing ear plugs during service in order to hear the commands. He indicated that he was turned down for a job at U.S. Steel in 1970 because he did not pass a physical examination due to his hearing loss. Thereafter, the veteran reported that he was sent to the Stevens Clinic Hospital in Welch, West Virginia for further hearing tests. Pursuant to the Board's September 1998 Remand Order, the RO contacted the Stevens Clinic/Hospital, c/o Welch Emergency Hospital, Welch, West Virginia in August 1999 in an attempt to obtain the veteran's medical records pertaining to treatment for hearing loss in 1970. A representative of the Welch Hospital responded subsequently that month that that facility was not affiliated with the Stevens Clinic/Hospital, which was now closed, and that the Welch Hospital did not have medical records from the Stevens facility. The Board notes that there is no medical evidence in the claims folder showing treatment for hearing loss from the time of the veteran's discharge from service until the 1990's. In January 1997, the veteran sought treatment at the Beckley VA Medical Center for "hearing problems." At that time, he complained of hearing problems since 1971, which the Board notes is some 12 years following separation from service. The diagnosis was hearing defect of unknown etiology. The veteran has contended that he received a VA audiological evaluation in February 1997, and the Board notes that medical evidence of record indicates that he indeed was scheduled for such evaluation at that time. Pursuant to the September 1998 Board Remand Order, the RO made several attempts to secure the VA audiological test reports from February 1997, but unfortunately was unsuccessful in locating any such records. The Board notes that the claims folder does, however, contain April 1997 audiology test reports from the Beckley VA Medical Center which do show that the veteran currently has bilateral hearing loss. Audiological test results on VA examination of April 1997 indicated pure tone threshold averages of 56.25 in the right ear and 67.5 in the left ear. Speech recognition scores were 96 percent in the right ear and 80 percent in the left ear. The results indicated normal to moderately-severe bilateral sensorineural hearing loss. The examination report contained no medical opinion as to the etiology of the veteran's bilateral hearing loss. In May 1998, the veteran testified at a videoconference hearing held before the undersigned Member of the Board. He stated that he had been awarded disability benefits from the Social Security Administration (SSA). Pursuant to the September 1998 Board Remand Order, the RO obtained the SSA records pertaining to the veteran's disability award. Appellate review of these records indicate that he was awarded SSA disability benefits in November 1994 as a result of right ankle and right elbow arthritis, chronic lumbosacral strain, shortness of breath, bilateral hearing loss, and an umbilical hernia. It appears that the primary disabilities underlying the SSA disability award were his multiple joint pain and low back strain. The medical records underlying the award of SSA disability benefits are devoid of any medical opinion linking the veteran's current hearing loss to service or any event in service. To the contrary, an August 1993 physical examination report in connection with the SSA disability determination included a diagnostic impression of bilateral sensorineural hearing loss, and noted that the veteran had reported a 20-year history of poor hearing - which the Board notes would date the onset of hearing loss to 1973, some 14 years post service. In cases where the veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the veteran in developing facts pertinent to his claim under the provisions of 38 U.S.C.A. § 5107(a) in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). In this regard, the Board notes that the veteran submitted a June 1999 statement from a former co-worker in support of his claim for service connection for bilateral hearing loss. The co-worker indicated that he worked with the veteran at the time that he reportedly failed a hearing test in 1970, and he recalled that the veteran was denied a job at U. S. Steel as a result of the hearing loss. Although it is unfortunate that the service medical records are unavailable, the Board finds that all reasonable efforts have been made to obtain all available medical records that might be pertinent to the veteran's claim. The Board recognizes the VA's heightened duty to explain its findings and conclusions in a case where the service medical records are unavailable, and is satisfied that the RO has fulfilled its heightened obligation by ensuring that all relevant facts have been properly developed to the extent possible. The record is devoid of any indication that there are other records which might be pertinent to the veteran's claim, and which the VA should attempt to obtain. Therefore, the Board finds that no further development is required to assist the veteran in developing facts pertinent to this claim for service connection for bilateral hearing loss. In sum, the veteran's current medical records clearly show that he suffers from bilateral hearing loss. Despite the Board's and the RO's attempts to develop pertinent evidence in this case by seeking to obtain alternative medical records in view of the unavailability of the service medical records, there is simply no medical evidence of record showing that the veteran's hearing was defective in service or within 1 year of separation therefrom. In fact, the veteran was discharged from service in 1959, and the available documented medical history contained in the medical records obtained variously dates the onset of hearing loss to 1971 and 1973 - all many years post service. The Board notes that the veteran has provided lay testimony in support of his contention that he failed a hearing test in 1970. While the Board may accept as true the fact that the veteran failed a hearing test in 1970, this would at best show the onset of hearing loss at a time over 10 years post service, and, in any event, neither the veteran nor the co- worker who furnished the June 1999 lay statement are medical experts competent to establish a medical nexus between the veteran's current hearing loss and his military service. See Espiritu. The Board also notes that the veteran provided the name of a medical facility at which he was treated for hearing loss in 1970, and that those records are unavailable. However, even if these records were obtained and did show hearing loss in 1970, this alone would not provide a basis for a grant of service connection without competent medical evidence of a nexus between the veteran's current hearing loss and an event in service. In addition, the Board notes that the veteran's SSA records indicate possible exposure to significant noise following separation from service, as they show that he worked from 1977 to 1992 as a general laborer and heavy equipment operator in construction. Moreover, the current medical evidence shows no relationship whatsoever between the veteran's military service and his currently-diagnosed bilateral hearing loss. In the absence of medical evidence of sensorineural hearing loss in service or within 1 year of separation therefrom, in view of the documented medical history indicating the onset of hearing loss many years post service, and in the absence of competent medical evidence establishing a nexus between the current diagnosis of bilateral hearing loss and any event in service, all of the criteria of Caluza required to establish a well-grounded claim have not been met. As such, the Board finds that the claim for service connection for bilateral hearing loss is not well-grounded, and the appeal is denied. Since the veteran's claim is not well-grounded, he cannot invoke the VA's duty to assist him in the further development of the claim under 38 U.S.C.A. § 5107(a). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well- grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. Thus, the Board finds that a VA audiological examination for the purpose of obtaining a medical opinion as to the etiology of the veteran's current hearing loss, as requested by the veteran's representative in written argument dated in November 1999, is not necessary. The VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case, and the extent to which the VA has advised the claimant of the evidence necessary to be submitted with a claim for VA benefits. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the July 1997 Statement of the Case and the RO's December 1997 letter to the veteran informing him of the alternate sources of evidence he might present in view of the unavailability of service medical records, shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a), inasmuch as the veteran was fully informed of the reasons for the denial of his claim, and advised of what evidence was needed to support his claim. ORDER Service connection for bilateral hearing loss is denied. THOMAS A. PLUTA Member, Board of Veterans' Appeals