Citation Nr: 0002060 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-06 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The veteran served in active service from May 1951 to April 1953. FINDINGS OF FACT 1. The veteran has presented a claim for service connection for hearing loss that is plausible, or meritorious on its own or capable of substantiation. 2. There is no competent medical evidence that indicates the veteran currently has tinnitus. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the National Personnel Records Center (NPRC), in response to a VA request for the veteran's service records, reported that the veteran's records may have been destroyed in the fire at the Records Center in 1973. All searches for alternative sources or records were fruitless, including March and April 1998 searches for sick and morning reports, which yielded negative results. The Board finds that the RO has undertaken all possible development to obtain the veteran's service medical records. While the absence of the veteran's service medical records is clearly not helpful to the veteran's claims, the absence of those records would not preclude a grant of service connection. I. The Applicable Law. 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; 38 C.F.R. § 3.303(a) (1999). In addition, 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. 38 C.F.R. § 3.303(b) (1999). The threshold question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. 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); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements for the claim for service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Thus, the claimant is required to establish a nexus between the claimed disability and his/her active military service, even if a continuity of symptomatology has been established under 38 C.F.R. § 3.303(b). See Clyburn v. West, 12 Vet. App. 296 (1999) (distinguishing the factual circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995), and Hampton v. Gober, 10 Vet. App. 481 (1997)). II. Bilateral Hearing Loss. Before service connection may be granted for hearing loss, the loss must be of a particular level of severity. For purposes of applying the laws administered by the VA, impaired hearing 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). However, in Hensley v. Brown, 5 Vet. App. 155 (1993), the Court stated that 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that, when audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The Court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. At 157. In addition, combat veterans are afforded special consideration and are given the benefit of the doubt in disability cases under 38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Under this rule, satisfactory non-expert, or "lay" evidence that a disease or injury was incurred in combat will be accepted as sufficient proof of service connection if it is consistent with the circumstances, conditions or hardships of such service, even absent official record of such incurrence. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). However, the special consideration given to combat veterans, when applicable, only deals with the question of whether a particular disease or injury was incurred in or aggravated by service. These provisions do not address the other two elements required for a service-connected disability, namely a current diagnosis and a nexus to service. Both of these elements generally require competent medical expertise. See Caluza v. Brown, 7 Vet. App. 498 (1995); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93, 95 (1993); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Clarkson v. Brown, 4 Vet. App. 565, 567 (1993). With respect to the veteran's combat status, the Board acknowledges the statements by the veteran, his wife and his representative in various correspondence to the RO and during the October 5, 1998, appeal hearing at the RO indicating that, during his active service in Korea, the veteran was a 60 and 81 mm mortar gunner and squat leader and was engaged in combat against the enemy. These statements are verified by the veteran's DD Form 214 and DA Form 493 which indicate the veteran was awarded the Combat Infantryman Badge (CIB) during his period of service, as well as that he served in the Army's infantry. As such, the Board finds the veteran engaged in combat with the enemy during his period of active service, and thus, the veteran's lay testimony or statement is accepted as conclusive evidence that the veteran sustained acoustic trauma while in combat. However, the veteran must still show, via competent medical evidence, that he currently suffers from a hearing disability, and that there is a nexus between his current hearing disability and his period of service. With respect to the evidence of record, medical records from the Kansas City VA Medical Center (VAMC) dated from February 1998 to January 1999 describe the treatment the veteran received for various health problems, including a decrease in hearing acuity. Specifically, August 1997 notations indicate the veteran showed, upon audiological examination, mild to profound bilateral sensorineural hearing loss beginning at 250 Hertz. May 1998 notations show he had mild to severe bilateral hearing loss at low to high frequencies. In addition, records from Jane L. Thebo, M.D., from the Hearing Associates, Inc., contain a January 1985 audiological examination report which shows the veteran's pure tone thresholds, in decibels, for the left ear were 35, 37, 45, 95, 95, and for the right ear were 30, 30, 30, 60, 62, both measured at 500, 1000, 3000, 2000, and 4000 Hertz, respectively. Furthermore, a December 1987 audiological examination report reveals his pure tone thresholds, in decibels, for the left ear were 40, 42, 62, 95, 100, and for the right ear were 30, 35, 45, 65, 65, both measured at 500, 1000, 3000, 2000, and 4000 Hertz; his speech discrimination was 76 percent for the left ear, and 80 percent for the right ear. Lastly, the record contains a May 1998 written statement from Willard Ball certifying the veteran's hearing was impaired during the time they served together in Korea. Moreover, during the October 1998 appeal hearing at the RO, the veteran and his wife, who has been married to him since March 1951, testified the veteran's hearing ability was normal prior to his service, but that it decreased substantially after his discharge from the service. As well, the veteran's wife testified that, after the veteran's discharge, they spoke in sign language while working at their farm due to the distances involved in farm work and due to his substantial decrease in hearing ability. Thus, after a review of the veteran's case, the Board finds that the evidence, as set forth above, provide sufficient evidence to establish a claim that is plausible or capable of substantiation. Specifically, the Board finds that the medical records from the Hearing Associates establish the veteran currently suffers from a hearing disability which meets the requirements of 38 C.F.R. § 3.385 (1999). In addition, given that the veteran is a combat veteran, his testimony is sufficient to establish he sustained acoustic trauma while in combat. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). Furthermore, the statements from Willard Ball and the veteran's wife are sufficient to establish a continuity of symptomatology, as required under 38 C.F.R. § 3.303(b) and given, in part, the absence of service medical records, and in light of the remaining record, the Board finds that the continuity of symptomatology has adequately been related to the veteran's military service. The Board also notes, parenthetically, that it appears that the RO denied this claim on the merits, also presumably finding the claim to be well grounded. Based on the foregoing, the Board finds the veteran's claim of entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). However, as the Board deems that additional development is necessary prior to final adjudication on the merits, the veteran's claim is remanded to the RO for such development. III. Tinnitus. With respect to the evidence of record, the evidence includes medical records from the Kansas City VAMC dated from February 1998 to January 1999; records from Jane L. Thebo, M.A., from the Hearing Associates, Inc.; and medical records from various private health care providers including, but not limited to, Dr. McDonald, Dr. G. Wong, the Cameron Community Hospital, and Midwest Pulmonary Consultants. These records describe the treatment the veteran received for various health problems; however, they do not contain any evidence that the veteran is presently diagnosed with tinnitus. Thus, after a review of the claims file, the Board finds that the veteran has not submitted objective medical evidence showing that he currently has tinnitus, which is related to his period of service. Specifically, he has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a disability of service origin. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, in the absence of competent medical evidence to support the claim of service connection for tinnitus, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and the claim will be denied on that basis. See 38 U.S.C.A. § 5107(a). In arriving at this conclusion, the Board took into considerations the various statements by the veteran, his wife and his representative that the veteran has tinnitus related to service. However, while the Board acknowledges the sincerity of these statements, the Board notes that the veteran, his wife and his representative are laypersons and, as such, are not qualified to offer a medical opinion regarding the existence of a disability or as to the etiology of any such disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit, supra, in which the Court held that a veteran does not meet the burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer such medical opinions). Moreover, as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claim of service connection for tinnitus, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps v. Gober, 126 F. 3d 1464, 1468 (1997). Giving the benefit of the doubt to a claimant does not relieve the claimant of carrying the burden of establishing a "well grounded" claim, and thus, there is nothing in the text of section 5107 to suggest that the VA has a duty to assist the claimant until he or she meets his or her burden of establishing a "well grounded" claim. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. The Board is not aware of any circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim on appeal "plausible". See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to present a well-grounded claim of service connection for tinnitus, and the reasons for which his claim failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER The claim of entitlement to service connection for bilateral hearing loss is well grounded; the appeal is granted to this extent only. Evidence of a well-grounded claim not having been submitted, service connection for tinnitus is denied. REMAND Having found that the veteran's claim of service connection for bilateral hearing loss is well grounded, the Board next must determine whether the duty to assist has been met by the Board before reaching the merits of the veteran's claim. See 38 U.S.C.A. § 5107(a). Based on a review of the record, however, the Board finds that further development of the veteran's claim is necessary prior to final adjudication and that the claim must be remanded to the RO for such development. Once the claimant has established that he or she has a well- grounded claim, section 5107(a) of the U.S. Code requires the VA to assist a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F. 3d 1464 (1997). More importantly, the law is clear that, after a claim is determined to be well grounded, the veteran may be considered for a VA examination, pursuant to 38 C.F.R. § 3.326 (1999); see Slater v. Brown, 9 Vet. App. 240, 244 (1996). In this case, it is not clear that a medical opinion regarding the etiology of the veteran's hearing disability, based on a review of all of the evidence of record, has been requested. The Board notes that only medical evidence may be considered to support Board findings. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, because the veteran has presented evidence in this case, with a possible nexus between his current hearing disability and his military service, and in order to afford the veteran due process of law, additional development of the record is necessary prior to a review of the merits of the veteran's claim. Based on the foregoing, and in order to fully and fairly adjudicate the veteran's claim in this case, the appeal is REMANDED to the RO for the following actions: 1. The RO should schedule the veteran for a VA examination in the appropriate specialty to determine the nature, extent and etiology of any current hearing disability. All indicated studies should be performed, and the claims folder must be made available to the examiner for review. Based upon the examination results, a review of the claims folder, and consideration of the veteran's medical history, the examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed hearing disability is related to his military service. The examiner must include the complete rationale for all opinions and conclusions expressed. 2. Thereafter, after ensuring that the directives of this remand have been fully satisfied, the RO should readjudicate the issue of service connection for bilateral hearing loss. In making its determination, the RO should review all the relevant evidence in the claims file. If the determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the veteran until he is notified. S. L. KENNEDY Member, Board of Veterans' Appeals