Citation Nr: 0003480 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-13 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1972. This matter arises from a February 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefits sought. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus or link between any currently diagnosed bilateral hearing loss and the veteran's active service. 2. There is no competent medical evidence of a nexus or link between any currently diagnosed bilateral tinnitus and the veteran's active service. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for service connection for bilateral tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that service connection may be granted for a disability resulting from a disease or injury that was incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R. § 3.303(b) (1999). The law also provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (1999). In addition, where a veteran served for 90 days or more, and an organic disease of the central nervous system, including sensorineural hearing loss, develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected, even though there is no evidence of such disease in service. See 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). In reviewing a claim for service connection, the initial question is whether the claim is well grounded. The veteran has the "burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." See 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1995). In the absence of a well-grounded claim, there is no duty to assist the claimant in developing facts pertinent to the claim, and the claim must fail. See 38 U.S.C.A. § 5107; Epps v. Gober, 126 F.3d 1464 (1997); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc). To establish that a claim for service connection is well grounded, the veteran must satisfy three elements. First, there must be evidence of an incurrence or aggravation of an injury in service. Second, there must be competent (i.e. medical) evidence of a current disability. Third, there must be evidence of a nexus between the in-service injury or disease and the current disability, as shown through the medical evidence. See Epps, supra. Lay or medical evidence, as appropriate, may be used to substantiate the service incurrence. See Caluza v. Brown, 6 Vet. App. 498, 506 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Alternatively, a claim may be well grounded based on the application of the rule for chronicity and continuity of symptomatology, set forth at 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold of any of the frequencies, 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the auditory threshold for at least three of these frequencies is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (1999). The veteran claims, in substance, that he was exposed to acoustic trauma during his service in the Republic of Vietnam, and that exposure to the firing of artillery resulted in his currently diagnosed bilateral hearing loss and tinnitus. The veteran's service medical records are negative for any indication of hearing loss or tinnitus. The report of the veteran's service separation physical examination does not disclose that the veteran underwent an audiometric examination at that time, but his hearing was nonetheless shown to be 15/15 bilaterally. In addition, the veteran did not indicate that he experienced any problems with his hearing or with tinnitus. In May 1996, the veteran appeared at a personal hearing before a Hearing Officer at the RO and testified that he had been exposed to constant noise from heavy artillery firing near his position in Vietnam. He testified that he experienced ringing in his ears ever since that time, and that he had recently (in approximately November 1995) been advised by an audiologist that he had hearing loss. The veteran stated that for some fifteen years prior to being told that he had hearing loss, he would have to look directly at anyone who was speaking to him. Post-service clinical treatment records include a report of a June 1983 VA examination in which no abnormalities of the ears was reported or found. Further, clinical treatment records dated in September 1995 show that the veteran experienced left ear hearing loss and tinnitus. However, the treating physician suggested that the etiology of these disorders was a gunshot wound to the left eye the veteran had sustained after service in 1973. Subsequent VA psychiatric treatment records also note that the veteran had bilateral hearing loss and tinnitus. Even so, other than noting the presence of an apparent disability, these records fail to include any opinion as to the etiology of the reported hearing loss and tinnitus. The post-service medical treatment records also fail to show any treatment for the veteran's hearing loss or tinnitus following service. The veteran underwent a VA audiological examination in February 1996. He was noted to complain of having experienced a gradual decrease in his hearing ability for many years. He reported a history of noise exposure including the gunshot wound to his left eye. In addition, according to the examining physician, the veteran had been evaluated in October 1995, and his hearing sensitivity was essentially unchanged since that time. The veteran was found to have a 65 decibel hearing loss at 4000 Hz, bilaterally, and 96 and 100 percent speech recognition scores in the right and left ears, respectively. No opinion as to the etiology of the veteran's hearing loss was offered. In December 1997, the veteran underwent a VA audiological rating examination. He reported a long history of decreased hearing in his left ear, and bilateral tinnitus. In addition, he expressed his belief that his hearing loss and tinnitus were incurred in service. The veteran was found to experience a 60 and 65 decibel hearing loss at 4000 Hz, in his right and left ears, respectively. He was also shown to have Maryland CNC scores of 94 and 92 percent in the right and left ears, respectively. The examiner concluded with a diagnosis of bilateral high frequency sensorineural hearing loss starting at 4000 Hz, with essentially normal word understanding ability. The veteran underwent an additional VA audiological rating examination in August 1999. He reported experiencing decreased hearing which he felt had begun in Vietnam when he was exposed to acoustic trauma from artillery fire. In addition, he reported experiencing constant tinnitus, also of long duration, but with no definite onset date. In addition to noise exposure in service, the veteran also reported experiencing high levels of noise following service. The examiner stated that the audiological test results were not considered valid for rating purposes. He also noted that the veteran had been seen for a rating examination in December 1997, which showed bilateral hearing loss beginning at 4000 Hz. He stated that the December 1997 results were considered valid for rating purposes. In any event, the examiner offered his opinion that since the veteran's service medical records failed to disclose any hearing loss or tinnitus, it was unlikely that the hearing loss noted in December 1997 was related to service. According to the examiner, the same would be true of the veteran's claimed tinnitus. With respect to the veteran's August 1999 audiometric test results, the examiner noted that those results showed a large bilateral nonorganic component by pure tones and speech recognition, which were highly questionable as to their validity. The Board has evaluated the above-discussed evidence, and concludes that the veteran has failed to submit evidence of well-grounded claims for service connection for bilateral hearing loss and tinnitus. For purposes of his claim, the Board acknowledges that the veteran was likely exposed to noise from artillery fire while stationed in Vietnam. The Board further acknowledges that the veteran currently experiences bilateral tinnitus and hearing loss at 4000 Hz, which falls within the regulatory definition of hearing loss as contemplated by 38 C.F.R. § 3.385. However, there is no medical evidence of a nexus or link between the currently diagnosed bilateral hearing loss and tinnitus and the veteran's active service. The contemporaneous clinical treatment records dating from September 1995 show that the veteran had what was characterized as hearing loss and tinnitus in his left ear, but fail to include any medical opinion showing that such hearing loss was incurred in or otherwise related to service. Further, the other medical evidence pertaining to hearing loss, consisting of the February 1996 and December 1997 audiological examinations show present disabilities with respect to bilateral hearing loss and tinnitus, but likewise fail to contain any medical opinions as to the etiology of those disorders. Moreover, the examiner who conducted the August 1999 rating examination specifically concluded that the veteran's diagnosed bilateral hearing loss and tinnitus were not likely the result of exposure to acoustic trauma during service. In this regard, the Board also notes that the veteran reported, during the course of the August 1999 rating examination that he had been exposed to acoustic trauma following service as well as during service. In addition, lay statements and testimony by the veteran that his diagnosed bilateral hearing loss and tinnitus were incurred in service do not constitute medical evidence. As a lay person, lacking in medical training and expertise, the veteran is not competent to address an issue requiring an expert medical opinion, to include medical diagnoses or opinions as to medical etiology. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board also notes the veteran's contention that exposure to acoustic trauma shown in his service personnel and service medical records is sufficient to well ground his claim. The Board notes in this regard that if the veteran was engaged in combat when the claimed injury or disease occurred, his statements are sufficient to establish the incurrence of the disease or injury in service. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). Nevertheless, in order for the claim to be well grounded, the veteran must submit medical evidence of a current disability and, generally, medical evidence of a nexus between the in-service disease or injury and the current disability. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Accordingly, a medical nexus between the alleged exposure to acoustic trauma and any diagnosed hearing disorders is necessary in order to well ground the veteran's claim. See Epps, supra. Therefore, in the absence of any such opinion, the Board finds the veteran's argument in this regard to be without merit. The appeal with respect to the veteran's claims for service connection for bilateral hearing loss and tinnitus is therefore denied as not well grounded. For the above reasons, it is the decision of the Board that the veteran has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection for bilateral hearing loss and tinnitus. The Board has not been made aware of any additional relevant evidence which could serve to well ground the veteran's claims. As the duty to assist is not triggered here by well- grounded claims, the Board finds that the VA has no obligation to further develop the veteran's claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board also views its decision as sufficient to inform the veteran of the evidence necessary to complete well-grounded claims for service connection for bilateral hearing loss and tinnitus. See Robinette, 8 Vet. App. at 77, 78. ORDER Evidence of a well-grounded claim not having been submitted, service connection for bilateral hearing loss is denied. Evidence of a well-grounded claim not having been submitted, service connection for bilateral tinnitus is denied. S. L. KENNEDY Member, Board of Veterans' Appeals