Citation Nr: 0000819 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-16 628 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a perforation of the right eardrum. 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from May 1949 to February 1950. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1998 decision by the RO. FINDINGS OF FACT 1. Competent evidence has been received which shows that the veteran has a disability of the right eardrum due to perforation, and which suggests that the condition can be attributed to service. 2. Competent evidence has been received which shows that the veteran has defective hearing, and which suggests that the condition can be attributed to service. CONCLUSIONS OF LAW 1. The claim of service connection for a perforation of the right eardrum is well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of service connection for defective hearing is well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that service connection should be granted for a perforation of the right eardrum and defective hearing. He maintains that his current difficulties can be attributed to an in-service injury in July 1949. Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). 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 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical 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). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be 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, or link, between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). This third element may also be established by the use of statutory presumptions. See 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the present case, the Board finds that the claims of service connection for a perforation of the right eardrum and defective hearing are well grounded. A report from Ronald L. Wilkinson, M.D., dated in February 1999, indicates that the veteran has a disability of the right eardrum due to perforation. An audiometric report from Union Carbide Corporation, dated in October 1989, shows that the veteran has a hearing disability as defined in 38 C.F.R. § 3.385 (1999), and the February 1999 report from Dr. Wilkinson appears to confirm that that disability has persisted to the present time. Moreover, Dr. Wilkinson's report suggests that these difficulties can be attributed to "blast trauma" in service. Because the record contains competent evidence which shows that the veteran currently has the claimed disabilities, and which suggests that those disabilities may be attributed to service, the Board finds that the requirements for a well- grounded claim have been satisfied. ORDER The claim of service connection for a perforation of the right eardrum is well grounded; to this extent, the appeal is granted. The claim of service connection for defective hearing is well grounded; to this extent, the appeal is granted. REMAND As noted above, the Board has determined that the claims of service connection for a perforation of the right eardrum and defective hearing are well grounded. Because the claims are well grounded, VA has a duty to assist the veteran in developing the facts pertinent to these two claims. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that Dr. Wilkinson's report, although sufficient to make the veteran's claims well grounded, does not provide an adequate basis for a grant of service connection. This is so because Dr. Wilkinson's report appears to be based on a recitation of history provided by the veteran, rather than on a review of the available evidence. The report from Dr. Wilkinson suggests that the veteran's difficulties began with his exposure to "blast trauma" in service. The record clearly shows, however, that the veteran reported a history of "running ears" at the time of his service enlistment in May 1949, and that an inactive perforation of the right eardrum was then identified. The record further shows that, when the veteran was later treated for right ear difficulties during service, he gave a history of intermittent chronic draining of the right ear since age five or six. Physicians in service found that the veteran had chronic otitis media of the right ear, a perforation of the tympanic membrane and defective hearing secondary to that condition, and chronic mastoiditis. They concluded that these conditions had pre- existed the veteran's service, and had not been aggravated thereby. Thus, while it may be true that the veteran was exposed to "blast trauma" in service, inasmuch as evidence has been submitted to show that he participated in firearms training on two occasions in July 1949, it seems clear from the record that at least a portion of his difficulties pre- existed his period of active military duty. In the context of a claim for service connection, the duty to assist includes the duty to provide the veteran with a thorough and contemporaneous medical examination, one that includes a medical opinion as to whether the claimed disability is in any way related to service. Moore v. Derwinski, 1 Vet. App. 401, 405-06 (1991); Witherspoon v. Derwinski, 2 Vet. App. 4 (1991). Because the report from Dr. Wilkinson is unsatisfactory in this regard, and because the veteran has not yet been afforded an examination by VA aimed at assessing the etiology of the conditions in question, a remand is required. 38 C.F.R. §§ 3.326, 19.9 (1999). The Board also notes that it does not appear that all of the evidence pertinent to the veteran's claims has been obtained. Specifically, it does not appear that an effort has been made to obtain relevant reports from some of the physicians identified by the veteran on his February 1998 application for VA benefits; namely, Drs. Carl Jarrel, Cecil Jarrel, Earle Shamblin, Arthur C. Litton, Elias G. Haikah, and John B. Haley. It is unclear whether these reports were not obtained because the veteran failed to return the appropriate releases to VA, or whether some other reason exists for their absence from the record. On remand, the RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for the claimed disabilities that has not already been made part of the record, and should assist him in obtaining such evidence in accordance with 38 C.F.R. § 3.159. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for a perforation of the right eardrum and/or defective hearing that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should make an effort to ensure that all relevant records of VA treatment have been obtained for review, and should attempt to procure relevant records from Drs. Carl Jarrel, Cecil Jarrel, Earle Shamblin, Arthur C. Litton, Elias G. Haikah, and John B. Haley. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. After the above development has been completed, the veteran should be scheduled for an ear examination and audiometric testing. A physician should review the claims folder, examine the veteran, and offer an opinion as to each of the following questions: (a) Does the veteran currently have a perforated right eardrum, or residuals thereof? (b) If the veteran currently has a perforated right eardrum, or residuals thereof, is it at least as likely as not that the current impairment is related to that noted in service? (c) Is it at least as likely as not that the perforation of the veteran's right eardrum underwent a chronic or permanent worsening during the veteran's active military duty? (d) If it is at least as likely as not that the perforation of the veteran's right eardrum underwent a chronic or permanent worsening during the veteran's active military duty, can the worsening be clearly and unmistakably attributed to the natural progress of the condition, versus a service-related cause or event? (e) Does the veteran have a current hearing impairment of either ear? (f) If the veteran currently has a current hearing impairment of either ear, is it at least as likely as not that the current impairment is related to that noted in service? (g) If a hearing impairment of either ear currently exists, and it is at least as likely as not that the current impairment is related to that noted in service, is it clear that the impairment pre-existed the veteran's service? (h) If it is clear that a hearing impairment pre-existed the veteran's service, is it at least as likely as not that the impairment underwent a chronic or permanent worsening during the veteran's active military duty? (i) If it is clear that a hearing impairment pre-existed service, and it is at least as likely as not that it underwent a chronic or permanent worsening during the veteran's active military duty, can the worsening be clearly and unmistakably attributed to the natural progress of the condition, versus a service-related cause or event? (j) If it is not clear that a hearing impairment pre-existed the veteran's service, is it at least as likely as not that such impairment had its onset in service? 3. The RO should thereafter take adjudicatory action on the claims of service connection for a perforation of the right eardrum and defective hearing. If any benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals