Citation Nr: 0002435 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-14 110A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of a shell fragment wound of the right leg. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota in October 1996 and June 1997. The veteran also appealed the RO's denials of service connection for shell fragment wounds of the left leg and face, but the RO granted service connection for both disorders in a February 1999 rating action. In a February 1999 rating decision, the RO denied entitlement to a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities under 38 C.F.R. § 3.324 (1999). The veteran has not filed a Notice of Disagreement with this denial to date, but his representative listed this issue as being on appeal in a December 1999 statement. It is unclear whether the veteran wishes to initiate an appeal regarding this issue, and the Board refers this matter back to the RO for appropriate action. The claim of entitlement to service connection for residuals of a shell fragment wound of the right leg will be addressed in the REMAND section of this decision. FINDING OF FACT There is no competent evidence of a nexus between the veteran's current bilateral hearing loss and service. CONCLUSION OF LAW The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Also, certain chronic diseases, including such neurological disorders as sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). 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, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). The Board also notes that the VA's laws and regulations do not require treatment for hearing loss in service in order to establish service connection for that disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, the key issues are whether the veteran currently satisfies the criteria of 38 C.F.R. § 3.385 (1999) and whether there is a basis for linking the current hearing loss disability to the veteran's service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The initial question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. In order for a claim for service connection to be well grounded, the claim must be shown to be at least plausible and capable of substantiation. Specifically, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps v. Gober, 126 F.3d at 1468. Furthermore, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by: (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of evidence of continuity of symptomatology. Id. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence noting the specific symptomatology is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one for which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under 38 C.F.R. § 3.303(b) (1999) by: (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage v. Gober, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period, or evidence that is post-service or post-presumption period, may suffice. Id. The Board has reviewed the veteran's service medical records and observes that these records indicate no complaints of, or treatment for, decreased hearing during service. The report of the veteran's November 1945 separation examination contains the notation that he "can't hear out of his right ear" when suffering from a cold, but his hearing upon examination was entirely within normal limits. The earliest medical evidence of record suggesting a bilateral hearing loss disability (in view of 38 C.F.R. § 3.385 (1999)), worse in the right ear, is an April 1976 audiological evaluation. The veteran's bilateral hearing loss disability is confirmed in the report of a January 1999 VA audiological examination, which revealed average puretone thresholds of 105+ decibels in the right ear and 40 decibels in the left ear. The examiner who conducted this examination reviewed the claims file but indicated that he could not provide an opinion as to whether it was at least as likely as not that the veteran developed bilateral hearing loss as a result of acoustic trauma during World War II, as no hearing loss was noted at the time of discharge. In this case, there is no competent medical evidence suggesting a causal nexus between the veteran's current bilateral hearing loss and any incident of service, including claimed acoustic trauma. There is also no competent medical evidence indicating that the veteran incurred sensorineural hearing loss within one year following service. Rather, the first medical evidence of record suggesting a bilateral hearing loss disability is from 1976, more than 30 years subsequent to the veteran's separation from service. In analyzing the facts in this case, the Board observes that service connection is in effect for multiple shrapnel wound scars, suggesting participation in combat with the enemy during service. In this regard, the Board would point out that 38 U.S.C.A. § 1154(b) (West 1991) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); see also Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d) (1999). However, 38 U.S.C.A. § 1154(b) does not address the questions of the existence of a present disability or of a nexus between such disability and service. See also Caluza v. Brown, 7 Vet. App. at 507. In the absence of evidence of such a nexus, as here, the provisions of 38 U.S.C.A. § 1154(b) (West 1991) are insufficient, in and of themselves, to establish a well-grounded claim, even assuming that the veteran suffered from episodes of decreased hearing during service. Indeed, the only evidence of record suggesting a nexus between the veteran's current bilateral hearing loss and service is the lay evidence of record, including the testimony from his September 1998 VA hearing. However, the veteran has not been shown to possess the medical expertise necessary to render a diagnosis or to establish a nexus or link between a currently diagnosed disorder and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner and unenhanced by any additional medical commentary from that examiner does not constitute competent medical evidence); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Therefore, the lay contentions of record, alone, do not provide a sufficient basis upon which to find this claim to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, (1993). A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran's claim for service connection for bilateral hearing loss, this claim must be denied as not well grounded. Since the veteran's claim for service connection is not well grounded, the VA has no further duty to assist him in developing the record to support his claim. See Epps v. Gober, 126 F.3d at 1467-68 (Fed. Cir. 1997) ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). The Board recognizes that the RO has denied the veteran's claim on its merits, while the Board has denied this claim as not well grounded. Regardless of the basis of the RO's denial, however, the Board observes that the United States Court of Appeals for Veterans Claims has held that no prejudice to the veteran results in cases where the RO denies a claim for service connection on the merits and does not include an analysis of whether the veteran's claim is well grounded, and the Board denies the same claim as not well grounded. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the veteran's claim well grounded. As such, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence required to complete his application. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER A well-grounded claim not having been submitted, entitlement to service connection for bilateral hearing loss is denied. REMAND The veteran's claims on appeal initially included entitlement to service connection for a shell fragment wound of the right leg. In his October 1997 Substantive Appeal and in the testimony from his September 1998 VA hearing, the veteran indicated that he sought service connection for shell fragment wounds of both legs. However, the RO has not addressed the issue of entitlement to service connection for a shell fragment wound of the right leg subsequent to the veteran's hearing. The failure of the RO to issue a Supplemental Statement of the Case on this issue constitutes a procedural defect requiring correction by the RO. See 38 C.F.R. §§ 19.9, 19.31 (1999). Therefore, in order to fully and fairly adjudicate the veteran's claim, this case is REMANDED to the RO for the following action: After completing any further development deemed necessary, the RO should issue a Supplemental Statement of the Case addressing the issue of entitlement to service connection for a shell fragment wound of the right leg. The veteran and his representative should be afforded an appropriate period of time in which to respond before this case is returned to the RO. The purpose of this REMAND is to obtain additional adjudication in accord with the VA's due process requirements, and the Board intimates no opinion, either factual or legal, as to the ultimate outcome warranted in this case. The veteran is free to submit additional evidence or argument in support of his claim. See Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required on the part of the veteran until he is so notified by the RO. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals