BVA9503581 DOCKET NO. 93-00 909 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hearing loss, left ear. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an increased (compensable) evaluation for hearing loss, right ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1940 to October 1945, May 1947 to April 1950, and from May 1950 to June 1962. This appeal arose from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO, in pertinent part, denied entitlement to service connection for a left hearing loss and tinnitus, and an increased (compensable), evaluation for right hearing loss. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a hearing loss in the left ear with tinnitus due to massive amounts of quinine administered in service for malaria, as the result of serving in an artillery unit, and working as a civilian around heavy machinery. He argues that his right hearing loss is more disabling than currently evaluated because he was told by an audiologist that he should have a hearing aid. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for a hearing loss in the left ear is not well grounded, that the preponderance of the evidence is against a grant of entitlement to an increased (compensable) evaluation for right hearing loss, and that the record supports a grant of entitlement to service connection for tinnitus. FINDINGS OF FACT 1. The claim for service connection for a hearing loss in the left ear is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. When examined by VA in August 1962, two months after service, the veteran reported exposure to acoustic trauma during the Korean Conflict. 3. In March 1992 a private audiologist diagnosed a mild to moderate high frequency sensorineural hearing loss in the left ear. 4. The veteran complained of tinnitus since 1945 following quinine treatment for malaria when examined by VA in July 1992. 5. The July 1992 VA audiology examination disclosed that right defective hearing was manifested by pure tone thresholds of 25, 30, 70, and 60 decibels with an average of 38.75 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech recognition of 98 percent. 6. The July 1992 VA audiology examination disclosed that left defective hearing was manifested by 15, 25, 30, and 30 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech recognition of 94 percent. CONCLUSIONS OF LAW 1. The claim for service connection for a hearing loss, left ear, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Tinnitus was the result of acoustic trauma incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107. 3. The criteria for an increased (compensable) evaluation for hearing loss, right ear, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for hearing loss, left ear. Section 5107 of Title 38, United states Code unequivocally places an initial burden upon the claimant to produce evidence that the claim is well grounded, that is, that the claim is plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden as to the issue of entitlement to service connection for a hearing loss in the left ear, the Board finds that his claim is not well grounded, and that his appeal as to this issue must be dismissed. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medically trained health care professional and cannot be recognized as competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders the veteran's claim not well grounded. A review of the service medical records discloses that they contain no complaints, findings, or evidence of a hearing loss in the left ear. The October 1959 report of general medical examination shows left audiometer studies were as follows (ASA values converted to ISO values for VA comparison purposes): HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 30 25 20 15 The January 1962 report of general medical examination for retirement shows that audiometer studies for the left ear were as follows (ASA values converted to ISO values for VA comparison purposes): HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 15 25 5 10 5 A VA audiology examination conducted in May 1977 disclosed left hearing acuity was manifested as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 10 15 10 20 35 decibels were shown at 8000 hertz. Speech discrimination ability was 100 percent. In March 1992, a private audiologist reported the veteran had a mild to moderate high frequency sensorineural hearing loss in the left ear. The July 1992 VA audiology examination report shows left hearing acuity was manifested as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 20 15 25 30 30 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. The audiologist diagnosed a mild to severe hearing loss above 2000 hertz. Although the veteran has contended to the contrary on appeal, the Board finds no substantiating evidence of record to link the post service reported hearing loss in the left ear to any incident of service. The service medical records are devoid of a hearing loss in the left ear. The Board has considered the facts and circumstances of the veteran's service including his exposure to a hazardous combat environment. 38 U.S.C.A. § 1154. The fact remains that his hearing acuity in the left ear was evaluated during service and it was normal. Clinical evidence of a hearing loss in the left ear was initially reported decades after the veteran's separation from service. There is no competent evidence of record linking the post service reported left hearing loss with any incident of service, such as that from a physician or other qualified health provider. Grottveit v. Brown, 5 Vet.App. 91 (1993). The veteran is not a trained medical health professional and consequently cannot provide an opinion as to the origins of his left hearing loss. Espiritu . Accordingly, the absence of such cognizable evidence renders the veteran's claim not well grounded. This part of the veteran's appeal must be dismissed. 38 U.S.C.A. § 5107. The Board recognizes that this part of the veteran's appeal is being disposed of in a manner different from that utilized by the RO. The Board must therefore consider whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the veteran's claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. This is because in assuming that his claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard. To remand this case to the RO for consideration of the issue of whether his claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the claimant. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49-747 (1992). Furthermore, it is well to point out at this time that by the Board's action in dismissing the veteran's claim, he is not burdened with a prior final adjudication on the merits. Therefore, if he is able to submit a well grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). II. Entitlement to service connection for tinnitus. Initially, the Board observes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that he incurred tinnitus due to exposure to a noisy combat environment in service. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). The service medical records contain no finding of tinnitus, a disorder initially complained of by the veteran in 1992, three decades after his separation from active service. However, when examined by VA in August 1962, the veteran reported that he had had contact with loud explosions during the Korean War. The examiner reported that there was no history of infection or other acoustic trauma. The VA examiner diagnosed defective hearing in the right ear, possibly acoustic trauma. As noted, the veteran's tinnitus has been associated with exposure to acoustic trauma in a combat environment in Korea. This would be consistent with the high frequency hearing loss in his right ear. Of course service connection cannot be granted for tinnitus on the basis of civilian employment following service as the governing criteria in this regard specify service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. The Board finds that the evidentiary record is in relative equipoise as to whether the post service reported tinnitus is related to exposure to acoustic trauma in service. The veteran's contention of exposure to such trauma is entirely credible in view of his extensive service which includes the Korean Conflict. The VA examination in August 1962, two months after service, is highly probative as to the veteran's claimed exposure to acoustic trauma. The veteran's tinnitus, in the Board's opinion, can reasonably be associated with acoustic trauma during the Korean Conflict. As the evidentiary record is in relative equipoise, the Board finds that the reasonable doubt existing in this case should be resolved in favor of the appellant. The Board concludes that service connection is warranted for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107. Gilbert v. Derwinski, 1 Vet.App. 61 (1991). III. Entitlement to an increased (compensable) evaluation for hearing loss, right ear. A slight high tone hearing loss in the right ear was diagnosed when the veteran underwent a routine annual examination in service in October 1959. Right high tone deafness was confirmed when he was examined for retirement in April 1962. An August 1962 VA audiology/ear examination concluded in a finding of defective hearing, right ear, possibly acoustic trauma. A May 1977 VA audiology examination concluded in a finding of possible neurosensory loss. In March 1992, a private audiologist reported the veteran had a moderate high frequency sensorineural hearing loss in the right ear. The July 1992 VA audiology examination shows right pure tone thresholds were reported as 25, 30, 70, and 60 decibels with an average of 38.75 decibels at 1000, 2000, 3000, and 4000 hertz. Speech recognition was 98 percent. The left ear was not reported as totally deaf. The above reported pure tone thresholds for the right ear equate to a numeric designation of I on Table VI of the VA Schedule for Rating Disabilities. 38 C.F.R. § 4.85. The nonservice-connected left ear is not totally deaf and also equates to I on Table VI. The bilateral numeric designations of I on Table VII equate to a noncompensable evaluation under diagnostic code 6100. The veteran is properly rated. A higher average pure tone decibel loss with lower speech discrimination ability is required for assignment of an increased (compensable) evaluation. No question has been presented as to which of two evaluations would more properly classify the severity of right hearing loss. 38 C.F.R. § 4.7. Right hearing loss has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). As compensable disablement has not been shown by the evidence of record, the Board finds no basis upon which to predicate an increased (compensable) evaluation for right hearing loss. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.85, Diagnostic Code 6100. ORDER The claim for entitlement to service connection for hearing loss, left ear, is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to an increased (compensable) evaluation for hearing loss, right ear, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.