Citation Nr: 0002222 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-01 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from July 1966 to July 1968. The veteran engaged in combat with the enemy. This matter is before the Board of Veterans' Appeals (Board) on appeal of a 1996 rating decision from the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a left ear hearing loss disability. The RO, in a rating decision dated May 1996, denied the veteran's application for service connection for a left ear hearing loss disability, for a compensable rating for residuals of malaria and for reopening a claim for a left leg/knee condition. The veteran was notified of that decision by letter dated May 23, 1996. A Notice of Disagreement as to the issue of service connection for hearing loss was received in July 1996 and a Statement of the Case was issued in October 1996. The RO accepted the veteran's timely filed substantive appeal, VA Form 9, received in April 1997, as a Notice of Disagreement as to the claim for an increased rating for residuals of malaria. The RO issued a Supplemental Statement of the Case in August 1998, pertaining to issues of a compensable rating for residuals of malaria and reopening a claim for a left leg/knee condition. The veteran failed to timely perfect his appeal and the rating decision became final as to those issues. 38 C.F.R. § 20.302 (1999). In the veteran's September 1999 statement in support of his claim, he claimed entitlement to service connection for a heart condition. The RO did not adjudicate this issue. As the issue has been neither procedurally developed nor certified for appellate review, the Board is referring it to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). In April 1997 the veteran submitted a copy of VA Form 10-10, which indicates that he is service connected for limited motion in the cervical spine (20 percent) and back strain (20 percent). The claims file is negative for a rating decision showing that the RO granted service connection for those disabilities. The RO notified the veteran, by letter dated May 1996, that the VA Form 10-10 is in error and that the veteran is not service connected for his cervical spine and back strain. The veteran again raised this contention in the VA Form 9 received in April 1997. The Board refers the matter to the RO for appropriate action. Although the veteran had indicated a desire for a hearing before the Board at the RO and in Washington, DC, those requests were prior to the submission of his substantive appeal on the hearing loss issue. In the substantive appeal he indicated that he did not want to appear before a member of the Board, thus withdrawing his hearing request. FINDING OF FACT The claim of entitlement to service connection for a left ear hearing loss disability is not supported by competent evidence linking current hearing disability in the left ear, first documented many years after service, to service, including noise/combat exposure. CONCLUSION OF LAW The claim of entitlement to service connection for a left ear hearing loss disability is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran had active service from July 1966 to July 1968. The entry examination report, dated May 1966, indicates that the veteran's ears were normal and he denied a history of ear trouble and hearing loss on the accompanying medical history report. The veteran underwent audiometric testing at that time. The findings were listed as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 0 0 0 0 When these audiometric test results are converted from ASA to ISO units, the findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 15 10 10 5 The veteran further denied a history of ear trouble, running ears and hearing loss on the accompanying medical history report to the June 1968 separation examination. Physical examination showed the veteran's ears were normal. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 10 15 10 10 The service medical records do not show complaints or treatment for any left ear injury or disease, including hearing problems. In his initial claim for VA disability benefits filed in 1970, the veteran did not mention hearing loss. The veteran submitted post-service medical records that are dated from April 1986 to November 1991. Treatment records dated in March 1986 note that he had had ear infections twice in 1980 with decreased hearing. The evidence indicates that the veteran underwent a left tympanoplasty in 1980. An April 1986 letter from a treating physician notes that the veteran had a left ear hearing impairment of six years' duration. The records show that the veteran underwent a revision left tympanoplasty in July 1986 and further revision surgeries in April 1987 and October 1988 because of chronic left otitis media. The diagnoses contained in these records include left ear hearing loss, tinnitus and chronic otitis media of the left ear. These medical care providers did not relate the veteran's left ear problems to active service. The VA outpatient medical records dated from September 1996 to April 1998 indicate that the veteran suffers from mixed hearing loss in the left ear, chronic tinnitus and chronic otitis media of the left ear. A VA audiological evaluation in January 1997 showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 30 25 40 75 85 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. A VA audiological evaluation in April 1998 showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 30 25 40 80 85 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The VA audiologist diagnosed moderate-to-profound, mixed left ear hearing loss and normal discrimination. These findings show that the veteran continued to have a left ear hearing loss disability in accordance with 38 C.F.R. § 3.385 (1999). The examiners did not relate the veteran's left ear problems to active service. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). The Court has held that 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 § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "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." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and certain chronic organic diseases of the nervous system, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1999). The Court has held that that term "service-connection," as used in section 1154(b), refers to proof of incurrence or aggravation of a disease or injury in service, as opposed to the legal standard for establishing entitlement to payments for disability. Medical nexus evidence and evidence of a current disability are still required to be submitted. Kessel v. West, No. 98-772, slip op. at 7 (U.S. Vet. App. Sept. 20, 1999) (en banc); see Clyburn v. West, 12 Vet. App. 296, 303 (1999). The Court held that section 1154(b) necessarily focuses upon past combat service and, for this reason, it does not constitute a substitute for evidence of current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service. Kessel, slip op. at 7. The Court has held that section 1154(b) provides a benefit for a combat veteran in that it relaxes the evidentiary requirement regarding the service incurrence or aggravation of a disease or injury in service. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). For purposes of submitting a well-grounded claim, a combat veteran's statements, standing alone, will generally be sufficient to establish the service-incurrence element. Nolen v. West, 12 Vet. App. 347, 350 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For the purpose of applying VA regulations, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the 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). Analysis The threshold question to be decided in the veteran's appeal is whether he has presented evidence of a well-grounded claim. "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The Board finds that the veteran has failed to establish a nexus between his current left ear hearing disability and service. Service medical records do not reflect any complaints or findings of ear or hearing problems. In fact, the audiometric evaluation at separation in 1968 shows that he did not have a hearing loss disability and he denied a history of ear problems and hearing loss. Additionally, he did not mention hearing loss when he filled his initial claim for VA disability benefits. The Board notes that the veteran has not alleged the onset of hearing loss during service within a year thereafter. Although the veteran's DD Form 214 shows he was awarded the Combat Infantryman Badge, the veteran does not allege that he sustained a left ear injury or hearing loss during his service in the Republic of Vietnam. As stated previously, the Court has held that that term "service-connection," as used in section 1154(b), refers to proof of incurrence or aggravation of a disease or injury in service, as opposed to the legal standard for establishing entitlement to payments for disability. Medical nexus evidence and evidence of a current disability are still required to be submitted. Kessel, slip op. at 7; Clyburn, 12 Vet. App. at 303. In the present case, the initial evidence of hearing loss is in the 1980s. The veteran's treating physician noted in the April 1986 letter that the veteran had a left ear hearing impairment of six years' duration. The remaining VA and private medical records dated since that time demonstrate that the veteran has a left ear hearing loss disability. 38 C.F.R. § 3.385. However, none of the examiners has rendered a medical opinion relating the veteran's current left ear hearing loss disability to any incident or event of active service, including noise/combat exposure. In the instant case, veteran has made no specific allegations regarding the origin of his left ear hearing disability. The issue of whether his current left ear hearing loss disability is related to active service requires competent medical evidence. As the veteran is not a medical professional, his statements cannot constitute competent medical evidence. There is no medical evidence showing hearing loss until many years after service and no medical evidence or opinion linking the current hearing disability to service. The Board notes that, generally speaking, lay persons are not competent to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). Absent competent evidence of a link between an in-service injury or disease and the current disability, the claim is not well grounded. As the veteran's claim for service connection for a left ear hearing loss disability is not well grounded, the doctrine of reasonable doubt has no application to his case. The Court has held that if the appellant fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, , 126 F.3d 1464 (Fed. Cir. 1997). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Service connection for a left ear hearing loss disability is denied. JANE E. SHARP Member, Board of Veterans' Appeals