Citation Nr: 0000976 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-19 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for otitis media. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for Meniere's disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from March 1944 to September 1944. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions dated July 1997 and April 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the above-noted claims, respectively. The veteran has apparently claimed entitlement to service connection for hearing loss and Meniere's disease as secondary to otitis media. These claims have not yet been adjudicated and are referred to the RO for appropriate action. The claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for otitis media is the subject of the remand following this decision. FINDINGS OF FACT 1. No medical evidence has been presented or secured to render plausible a claim that any current hearing loss is the result of a disease or injury incurred in service. 2. No medical evidence has been presented or secured to render plausible a claim that any current Meniere's disease is the result of a disease or injury incurred in service. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss is not well grounded, and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for Meniere's disease is not well grounded, and there is no 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 FINDINGS AND CONCLUSIONS Service connection for hearing loss and Meniere's disease I. Factual background The veteran's March 1944 entrance examination showed that his hearing acuity was 15/15 bilaterally. Review of the veteran's service medical records showed no complaints of, or treatment for, or diagnosis of hearing loss. The June 1944 report of medical survey indicated that the veteran's hearing acuity was 15/15 bilaterally. The veteran was treated for otitis media in June and August 1944. In August 1944, he gave a history of a painless, running ear since he was eight years old. He had been treated by private doctors for this disability prior to active service in 1939 and 1943. Pertinent diagnoses included chronic otitis media of the right ear. Hearing acuity was again 15/15 bilaterally in August 1944. An October 1945 VA examination showed that the veteran's hearing acuity was 20/20 bilaterally. Pertinent diagnosed included otitis media, right. Also of record is a private medical record, dated January 1992 (apparently misdated, as is refers to a January 1993 audiogram). The veteran gave a history of infections and perforations of the right ear as a child. He reportedly had this for many years and then went into the service, when it recurred. He indicated that he suffered from hearing loss in the right ear and had worn a hearing aid for many years. The doctor (Christopher E. Bald, M.D.) diagnosed Meniere's disease probably secondary to a chronically and recurrently infected right ear since a young age. A private physician's medical records, dated January 1993, revealed that the veteran was seen with complaints of vertigo. He related that the vertigo began in November 1992 while painting on a ladder. The diagnosis was possible early Meniere's disease. A private audiometric examination was performed in January 1993 and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 RIGHT 30 40 50 60 LEFT 80 70 65 70 Speech audiometry revealed speech recognition ability of 24 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed severe profound sensorineural loss in the right ear and mild to moderate severe sensorineural loss in the left ear. A VA audiometric examination was performed in February 1998. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 65 70 85 LEFT 35 35 60 65 75 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed moderately severe to profound sensorineural loss in the right ear and moderate to profound sensorineural loss in the left ear. The veteran reported no significant history of noise exposure while in service. He did, however, state that the worked around aircraft since leaving the military. The examiner opined that the veteran had bilateral hearing loss, obviously worse on the right than the left. It was unlikely due to his service in the military, other than if his medical discharge was somehow related. At the February 1998 VA examination the veteran also reported that he was diagnosed with Meniere's Disease three years earlier. The examiner opined that the Meniere's Disease was certainly not related to the veteran's military service. At the January 1999 RO hearing the veteran testified that he believed that his hearing loss and Meniere's disease were secondary to his otitis media. He stated that his hearing worsened with age. II. Legal analysis Service connection may be established for a current disability based on different legal theories of entitlement. "Direct" service connection may be established by showing that a disease or injury had its onset in service or by showing that a current disability is a result of a disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). In general, establishing "direct" service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For purposes of applying the laws administered by VA, 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; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). Service connection may be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Service connection for sensorineural hearing loss may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (1999). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a 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. Id. at 93. A well-grounded claim for direct service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. Here, the veteran was first shown to have hearing loss by VA standards in 1993, and was also diagnosed as having Meniere's disease. See 38 C.F.R. § 3.385 (1999). Therefore, the Board finds that there is sufficient medical evidence of a current disability, and the first element of a well-grounded claim has been satisfied. The veteran's service medical records disclose problems with his ears, diagnosed as otitis media, right. Therefore, the Board finds that there is sufficient evidence of incurrence of a disease during service, and the second element of a well-grounded claim has been satisfied. However, the veteran has not satisfied the third element of a well-grounded claim for service connection. He has reported having hearing loss/ear symptomatology since active service. Presuming this history to be credible for the purpose of establishing a well-grounded claim, there is still no medical evidence of record of a nexus between the present disabilities and the post-service symptomatology. Savage, 10 Vet. App. at 497 (holding that veteran's own testimony that he sustained a back injury in service, walked with a limp ever since, and received heat treatments over the years is presumed credible for the purpose of establishing a well grounded claim because it is not inherently incredible or beyond the competence of a lay person to observe and continuity of symptomatology had therefore been established even if the record did not contain service medical records showing treatment in service for a back problem); see Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (per curiam order noting Board's fundamental authority to decide a claim in the alternative). Medical expertise is required to relate the present disabilities etiologically to the veteran's post- service symptoms. However, there are no medical opinions contained in any of the veteran's post-service medical records relating his current hearing loss or Meniere's disease to any inservice finding or event or to the post- service symptomatology. To the contrary, the VA examiner in February 1998 determined that it was not likely that the veteran's hearing loss and Meniere's disease were related to active service. Although Dr. Bald related the veteran's Meniere's disease to right ear infections, this was related to infections at a young age, as opposed to during active service. Although the veteran may have continuously experienced hearing loss/ear symptomatology since active service, there is no medical evidence in the record at all tending to show that there were underlying chronic disabilities which caused the symptoms in service and that that underlying disabilities also have caused all the intermittent complaints of symptomatology experienced since service. Similarly, there is no medical evidence tending to show that the symptoms in service represented a chronic hearing loss disability and/or Meniere's disease rather than acute and transitory conditions. While the veteran has ascribed his current disabilities to active service, his statements do not constitute competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because no medical evidence has been presented or secured to render plausible a claim that any current hearing loss disorder or Meniere's diagnosed many years after service had its onset in service or is the result of, or related to, any disease contracted or injury sustained in active military service, the Board concludes that these claims are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate a claim on the merits unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground the veteran's claims for service connection for hearing loss and Meniere's disease. Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to the veteran's claims under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Having found the claim not well grounded, entitlement to service connection for hearing loss is denied. Having found the claim not well grounded, entitlement to service connection for Meniere's disease is denied. REMAND Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for otitis media The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (citations omitted). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. The veteran has argued that the 1961 RO decision severing service connection for otitis media was erroneous. It appears from the veteran's statements that he is arguing that there was clear and unmistakable error (CUE) in the 1961 rating decision. The issue that was addressed by the RO was whether new and material evidence had been submitted to reopen the claim for service connection for otitis media. It would be prejudicial for the appellant if the Board were to proceed to decide that question at this point, since the claim for CUE is related to the claim to reopen because if it is found that there was clear and unmistakable error in the 1961 rating decision, new and material evidence would not have to be submitted to reopen the claim. The CUE issue, if resolved favorably, could have a significant effect on the new and material issue on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994) (a claim is intertwined only if the RO would have to reexamine the merits of any denied claim which is pending on appeal before the Board under the pertinent law and regulations specifically applicable thereto). Therefore, this issue must be adjudicated prior to appellate disposition of the appellant's claim to reopen that is on appeal. If the determination is adverse to the appellant, he must be given an opportunity to perfect an appeal through filing a timely and adequate notice of disagreement and, following issuance of a statement of the case, a timely and adequate substantive appeal. Where a claimant has filed an application to reopen a claim and VA has notice of the existence of evidence that may be sufficient to reopen the claim, or, in the alternative, which may well-ground the claim, VA has a duty to inform the appellant of the necessity to submit that evidence to complete his application for benefits. See Graves v. Brown, 8 Vet. App. 522, 525 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995); 38 U.S.C.A. § 5103(a) (West 1991). Service medical records disclose that the veteran reported being treated for an ear disorder prior to active service by Drs. Richhouse, Gunther and Knapp. He also reportedly underwent an entrance examination for service in 1943, which is not of record. The RO must give the appellant an opportunity to submit the reported private treatment records. 38 C.F.R. § 3.159(c) (1999). See also 38 U.S.C.A. § 5103(a) (West 1991). Any additional service medical records may also be relevant to the appellant's claim, and an attempt to obtain additional service medical records from all appropriate sources is therefore warranted. Accordingly, these claims are REMANDED for the following: 1. Request the appellant's service medical records from all appropriate sources, to include, but not limited to, the National Personnel Records Center. Associate all requests and records received with the claims file. 2. Tell the appellant of the importance of submitting his treatment records from any private providers who treated him for his ear condition prior to service, including Drs. Richhouse, Gunther and Knapp. Point out that actual treatment records, as opposed to summaries, are requested. Provide him an opportunity to obtain this evidence and submit it in keeping with his ultimate responsibility to furnish evidence in support of his claim. 38 C.F.R. § 3.159(c) (1999). 3. Adjudicate the claim of clear and unmistakable error in the 1961 rating decision that severed service connection for otitis media. Notify the appellant and his representative of the determination, and provide an appropriate period of time for the submission of a notice of disagreement should the determination be adverse to the appellant. If the appellant files a timely and adequate notice of disagreement with respect to the claim of clear and unmistakable error, provide him and his representative a statement of the case, and notify them or the time limit within which an adequate substantive appeal must be filed in order to assure appellate review of this issue. 4. After completion of the above, readjudicate the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for otitis media, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand. See 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999). If the benefit sought on appeal remains denied, provide the appellant and his representative a supplemental statement of the case. Allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and fulfill due process considerations. No inference should be drawn regarding the final disposition of these claims as a result of this action. These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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 (Historical and Statutory Notes) (West Supp. 1999). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the 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. P.M. DILORENZO Acting Member, Board of Veterans' Appeals