Citation Nr: 0001249 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-27 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had verified service from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). FINDINGS OF FACT 1. Prior to enlistment, the veteran was employed as a machinist. 2. Left ear hearing loss was recorded on the March 1964 enlistment examination and, hence, was found to have existed prior to the veteran's enlistment into active duty. 3. On separation from service in 1968, the veteran's pre- existing sensorineural left ear hearing loss had decreased in severity and by VA standards was not deemed a disability. 4. No right ear hearing loss by VA standards was demonstrated in-service. 5. The claim of entitlement to service connection for bilateral hearing loss is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 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 FINDINGS AND CONCLUSION The veteran asserts that hearing loss did not exist prior to service. In the alternative, if it did exist prior to service, it was aggravated in-service by his military occupational specialty that required him to work on the flight deck and in the resting gear shack on the U.S.S. Constellation and the U.S.S. Hornet. He was exposed to constant noises from the airplanes or the equipment that stopped them or launched them. Since his release from service, his hearing has deteriorated. He feels his hearing loss is due to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). However, the threshold question to be answered is whether the claim is well-grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. See Chelte v. Brown, 10 Vet. App. 268, 270 (1997) (citing 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990)). Generally, a well-grounded claim for service connection 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 Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) by (a) evidence that the condition was "noted" during service or during an applicable presumptive 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); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim must be presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). For the 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (1999). If there is a current hearing loss disability for VA purposes, (i.e., satisfying the criteria of 38 C.F.R. § 3.385), then evidence must be submitted that establishes a causal connection between service and the current disability. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Hence, even though a veteran may not have had hearing loss at the time of separation from service, he or she may still establish service connection by meeting the above the requirements. Id. The DD Form 214N reflects that the veteran's military occupational specialty was aircraft mechanic. Service medical records dated for the period of March 1964 to October 1966 reflect that the veteran was employed as a machinist prior to his enlistment. On enlistment, the veteran's hearing acuity per ANSI units was as follows: Mar. 1964 HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 5 LEFT 20 10 0 20 40 A periodic medical examination dated in October 1966 reflects hearing acuity per whispered and spoken voice as 15/15 in both ears. The audiometer examination reflects hearing acuity per ANSI units as follows: Oct. 1966 HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 LEFT 20 10 10 30 40 The October 1966 report of medical examination also reflects in the summary of defects and diagnoses defective auditory acuity in the left ear, high frequency range, and not considered disabling. Audiometer results obtained on separation in January 1968 reflect Jan. 1968 HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 15 25 Thereafter, a Report of Medical Examination for Disability Evaluation dated in July 1968 reflects that the veteran was employed as a machinist at Texas Instruments. The evaluation of the ears was negative. The record does not address hearing loss. VA employee health records dated from December 1980 to July 1996 reflect that the veteran is employed in the engineering service as a pipefitter. A November 1992 entry reflects that the annual hearing test was completed with evidence of bilateral high frequency sensorineural hearing loss. Hearing protection was recommended in high noise areas. The safety officer was notified. A January 1994 employee health record signed by an audiologist reflects no change from baseline, bilateral moderate high frequency sensorineural hearing loss at 3000 Hertz and 4000 Hertz. A September 1985 Agent Orange examination reflects that no hearing loss was noted and that the ears were normal. The report reveals that the veteran has been a steamfitter since 1968. The examiner noted that the general physical examination was negative. On the authorized audiological evaluation in March 1998, pure tone thresholds, in decibels, were as follows: Mar. 1998 HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 55 55 LEFT 30 20 20 65 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The veteran reported a history of decreased hearing acuity as a result of heavy noise exposure from jet engines while working as a plane mechanic in Vietnam. The summary of audiological tests reflects that there is moderate sensorineural hearing loss at 3000-6000 Hertz in the right ear. There is slight sensorineural hearing loss through 500 Hertz and severe sensorineural hearing loss at 3000-6000 Hertz in the left ear. The audiologist noted that the three examinations available in the service medical records suggest the presence of a mild high frequency hearing loss in the left ear that was also present on the day of his entrance into the military. The examiner opined that this data would indicate that his current loss of hearing acuity developed following his discharge from the service. The level of noise present on an aircraft carrier when planes are landing or departing of aircraft would be significant enough to cause hearing impairment, but the discharge examinations available suggest no change in the hearing sensitivity. The veteran's work history as a pipefitter may have exposed him to noise levels sufficient to impair hearing but there is no information available to verify the possibility of such a finding. Testimony from the personal hearing conducted in August 1999 reflects that the veteran served two 9-month tours off the shore of Vietnam and that he had extended hours based on the air campaign there. His military occupational specialty was jet mechanic. He also performed as a plane captain performing launch and recoveries aboard the flight deck. His hearing protection consisted of intenerators - "just plastic cups with a little foam on them." He was not given plugs to go on the inside of them. He had no problems with his hearing prior to service. He had excellent hearing as a "lad." He was exposed to noise from the shive in the line shack when planes landed. He believes his deficient hearing is due to his job. Since separating from service, his hearing was tested at the VA. The Board acknowledges that the veteran has presented current evidence of bilateral hearing loss that is considered a disability for VA purposes. See 38 C.F.R. § 3.385. However, in order to prevail in his claim for service connection, the veteran must present evidence of a well-grounded claim, which is a claim that is plausible and capable of substantiation. Based on the foregoing, the veteran's left ear hearing was defective on enlistment. See 38 U.S.C.A. § 1132 (West 1991). In Crowe v. Brown, 7 Vet. App. 238, 245 (1994), the Court held that conditions recorded in examination reports are to be considered as "noted." Hence, service connection for hearing loss that pre-existed military service may only be granted upon a showing of aggravation. See Paulson v. Brown, 7 Vet. App. 466 (1995); 38 C.F.R. §§ 3.304(b), 3.306 (1999). Therefore, the veteran is not presumed to have been of sound condition as regards his hearing, and the presumption of soundness does not apply. Simply, there must be objective evidence of worsening of the pre-existing left ear hearing acuity that is related to his military service to establish service connection based on aggravation. Initially, the Board notes that on enlistment, the veteran reported civilian employment as a machinist. The Board acknowledges that the veteran experienced noise exposure as an aircraft mechanic and plane captain. However, on a complete review of the evidence of record, focusing on the October 1966 and January 1968 physical examinations, the Board observes that the veteran's hearing acuity on separation from service had not only improved but that it was not considered a hearing loss disability by VA standards. The veteran manifested no pure tone decibel loss beyond 25 Hertz. At this juncture, the Board notes that the veteran has been employed as a steamfitter and pipefitter since separating from service. VA examinations dated in July 1968 and September 1985 are silent as regards complaints of defective hearing. The September 1985 examination reflects no hearing loss was noted. The first documentation of bilateral hearing loss post service occurs in a VA employee health record dated in 1992, 12 years after he began employment at the VA as a pipefitter and more than 23 years after service. While the VA employee health records do not establish a nexus to service, they reflect that hearing protection was recommended in high noise areas. Although the March 1998 VA examination accorded the veteran reveals a bilateral hearing loss disability for VA purposes, the audiometer results on separation from service are not demonstrative of a hearing loss disability by VA standards in the absence of a clinical evaluation or treatment for symptoms attributable to hearing loss for decades after service. The Board stresses that coincident to the March 1998 VA audiological examination the VA audiologist opined that the service medical records would indicate that his current loss of hearing acuity developed following his discharge from service and that his work history as a pipefitter may have exposed him to noise levels sufficient to impair his hearing. Thus, the current bilateral hearing loss is not shown to be related to his military service. See 38 C.F.R. § 3.303(b). Despite any current hearing loss, there is no competent medical evidence that tends to establish aggravation of the left ear hearing loss or a nexus, or a link between the current bilateral hearing loss and the veteran's military service. The only evidence presented by the veteran that tends to show a connection between his current hearing loss disability and his military service consists of his own statements. While his statements and testimony are considered to be competent evidence when describing the features or symptoms of an injury or illness and may represent evidence of continuity of symptomatology, those statements are not competent evidence to demonstrate aggravation of a pre-existing condition or to relate the present bilateral hearing loss to that symptomatology. See 38 C.F.R. §§ 3.303, 3.306; Falzone v. Brown, 8 Vet. App. 398 (1995); Brock v. Brown, 10 Vet. App. 155, 162 (1997). Thus, without competent medical evidence or a causal relationship between any current bilateral hearing loss and his military service, the veteran has not presented a well-grounded for service connection, and his claim must be denied. See Hensley v. Brown, 5 Vet. App. 155 (1993). If the veteran fails to submit evidence in support of a plausible claim, the VA is under no duty to assist the veteran in any further development of the claim. See 38 U.S.C.A. § 5107(a); Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well-grounded). Further, the veteran's burden to submit evidence sufficient to establish a well-grounded claim is the veteran's alone and is not relieved by the benefit of the doubt provision. See 38 U.S.C.A. § 5107(b); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Service connection for bilateral hearing loss is denied. Deborah W. Singleton Member, Board of Veterans' Appeals