Citation Nr: 0002772 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-21 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from October 1970 to July 1973. This case initially came before the Board of Veterans' Appeals (Board) by means of a December 1996 rating decision rendered by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein service connection for a bilateral hearing loss disability was denied. The veteran appealed this decision. By means of a July 1998 decision, the issue of entitlement to service connection for a bilateral hearing loss disability was remanded for further development. Said development having been completed, the case is returned to the Board for further appellate review. FINDING OF FACT The veteran has presented evidence of in-service noise exposure, but there is no competent medical evidence showing a chronic disease manifested by bilateral defective hearing during his period of active military service or within one year following his discharge therefrom, or of a nexus between treatment and diagnosis of this condition provided in the post service period and any incident or event of his military service. CONCLUSION OF LAW The claim for service connection for a bilateral hearing loss disability is not well grounded and there is no further statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In making a claim for service connection, 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. 38 U.S.C.A. § 5107(a) (West 1991). 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). A well-grounded claim for service connection requires evidence of a current disability as provided by a medical diagnosis; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Establishing direct service connection for a disability which was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may also be granted on a secondary basis and for certain enumerated disabilities on a presumptive basis, see 38 C.F.R. §§ 3.307, 3.309 and 3.310, or alternatively, with respect to any disease, if all the evidence establishes that the disease was incurred in service, see 38 C.F.R. § 3.303(d). According to an opinion issued by the Under Secretary for Health of the Department of Veterans Affairs in October 1995, it is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system. Therefore, high frequency sensorineural hearing loss might be presumed service connected if manifest to a degree of 10 percent within one year of discharge from service. Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. 78, 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. 91, 93. The pertinent facts in this case may be briefly set forth. Service medical records contain no reports showing treatment for or diagnosis of hearing loss, but an April 1973 separation examination disclosed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 X 0 LEFT 5 0 10 X 0 Results for pure tone thresholds at the 3000 Hertz level were not recorded on the examination report. Notwithstanding this fact together with the finding that he had no hearing loss at 4000 Hertz in each ear, the separation examination report reflected a diagnosis of bilateral high frequency hearing loss. Although there is no evidence of direct combat exposure, additional service records indicated that the veteran performed duties in heavy construction (crawler tractor operator) and that he spent six months and 22 days in Vietnam during the period of armed conflict in that country. However, at a hearing before a RO hearing officer in July 1997, the veteran expressed his contentions that he has a bilateral hearing loss disability that is attributable to his active military service. He indicated that he has difficulty with his hearing and has to ask others to repeat what they say to him. He stated that he was exposed to noise during active service from artillery fire as well as constant noise from crawler tractors. Post service medical records show that the veteran has a current bilateral hearing loss disability. However, there is no reported treatment or evaluation for hearing loss in the post service period until November 1987 when the veteran had his hearing checked by private sources in connection with sinus problems. Subsequently, a March 1999 VA audio examination report indicates that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 20 45 LEFT 20 10 20 50 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Additionally, the recorded pure tone threshold at 4000 Hertz was greater than 40 decibels in each ear. Under the provisions of 38 C.F.R. § 3.385, it is specifically stated that a hearing disability exists if there is at least one 40- decibel threshold at the specified Hertz frequencies. Thus, a bilateral hearing loss disability compatible with § 3.385 is shown (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). The issue is therefore whether this hearing loss is attributable to the veteran's period of military service. See Hensley v. Brown, 5 Vet. App. 155 (1993). However, as indicated above, competent medical evidence establishing a nexus, or link, between conditions treated or diagnosed after service and those noted in service, is required to support a well-grounded claim for service connection. Whether certain symptoms can be said with any degree of medical certainty to be early manifestations of a disorder first diagnosed years later is a medical question requiring medical evidence for its resolution. See Espiritu at 494-95. In this case, there is no competent medical evidence linking the claimed hearing loss disability first noted to be treated many years after service to any injury or disease in service. The above-cited private medical records reflect a history of initial treatment and diagnosis of hearing loss in 1987, many years after service. Hearing loss for VA purposes was established based on the results of the March 1999 VA audiogram, but this examination as well as the other post service medical records do not contain any findings or medical opinion relating the veteran's hearing loss disability to service. On the contrary, the VA audiologist who conducted the March 1999 examination stated that the veteran's current bilateral hearing loss disability was not related to his active service. This examiner reviewed the evidence in the claims folder and concluded that (1) the service medical records did not show any hearing loss disability; and (2) that following service, the veteran's work history was significant for employment as a mechanic for a heavy equipment firm for different coal mines until 1981. Based on these findings, the VA audiologist opined that the veteran's current hearing loss disability was due ". . . to his aging and due to further exposure to noise and not to what he was exposed to during his service in the armed forces . . . ." Considering the foregoing facts, the Board concludes that the veteran has not submitted evidence sufficient to render his claim of service connection for a bilateral hearing loss disability well grounded. Caluza, 7 Vet. App. 498. The Board has carefully considered his contentions on appeal, however, this evidence alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) with respect to the existence of a disability and a relationship between that disability and his service. Espiritu, 2 Vet. App. 492 (1992). His lay assertions will not support a finding on medical questions requiring special expertise or knowledge, such as diagnosis or causation of a disease. Id. at 494-95. On the basis of the above findings, the Board can identify no basis in the record that would make the appellant's claim plausible or possible. 38 U.S.C.A. § 5107(a); see Grottveit at 92, Tirpak, at 610-11; and Murphy, 1 Vet. App. at 81. Where the veteran has not met this burden, the VA has no further duty to assist him in developing facts pertinent to his claim, including no duty to provide him with another medical examination. 38 U.S.C.A. § 5107(a); Rabideau, 2 Vet. App. at 144 (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's "duty" is just what it states, a duty to assist, not a duty to prove a claim). Accordingly, the Board must deny the veteran's claim of service connection for a bilateral hearing loss disability as not well grounded. See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). ORDER Service connection for a bilateral hearing loss disability is denied. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals