Citation Nr: 0007089 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 95-09 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from June 1981 to November 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1994 rating decision from the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for bilateral hearing loss. In the veteran's substantive appeal, VA Form 9, she indicated that she desired to attend a hearing before a member of the Board at the RO. Hearings were scheduled for June 1995, July 1995, February 1999 and February 2000. The veteran was informed of the scheduled hearings. She asked for a postponement of the June 1995 and February 1999 hearings and failed to report for the others. Therefore, in the absence of a showing of good cause for her failure to appear, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(b) & (d) (1999). In a rating decision dated in December 1994, the RO denied the veteran's application for service connection for bilateral visual impairment. The veteran was notified of that decision, by letter dated in January 1995, but did not appeal that decision. The Board notes that it appears that the veteran is raising a claim for tinnitus. The Board refers this issue to the RO for clarification and any appropriate action. FINDING OF FACT The existing record contains no competent evidence of hearing disability during or since 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 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran had active service from June 1981 to November 1986. The entry examination report, dated in June 1981, indicates the ears were normal. However, hearing loss in the left ear was noted in the summary of defects and her hearing was assigned a physical profile of "2." On the accompanying medical history report, the veteran denied a history of ear trouble and hearing loss, and indicated that she did not wear a hearing aid. The veteran underwent audiometric testing at that time. The thresholds from 500 to 4,000 Hertz were listed as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 30 0 LEFT 35 5 10 15 25 At 6,000 Hertz the veteran had a 25 decibel threshold in the right ear and a 30 decibel threshold in the left ear. The veteran underwent audiological testing in March 1984. On the examination report, the examiner made the notation, "no STS noted." On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 25 0 LEFT 15 5/10 0 5 15 Thresholds at 6,000 Hertz were 10 in each ear. In January 1986, the veteran was seen at a clinic at the Cubi Point Naval Air Station for a complaint of tenderness under her ear. The assessment was Eustachian tube irritation and Sudafed was prescribed. The treatment record does not show a complaint of hearing loss. Physical examination at separation in November 1986, showed the veteran's ears were normal. She underwent audiological testing the day before the separation examination. The examiner noted that reference was established following exposure in noise duties and that earplugs had been previously issued. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 20 25 0 LEFT 10 10 -5 -5 10 Thresholds at 6,000 Hertz were 15 decibels in the right ear and 10 decibels in the left. A summary of defects and diagnoses did not include hearing loss. In a statement accompanying her application for compensation, received in March 1994, the veteran reported that during service she worked as an aviation storekeeper and was exposed to aircraft noise, heat and the smell of gas and oil. The veteran claimed that as a result of the exposure, she began experiencing hearing loss in 1982. She alleged that she was not advised to wear hearing protection. On the application, the veteran indicated that she was treated for hearing loss during service between 1982 and 1983, and between 1983 and 1986. Further, she indicated that she was treated at the Navy dispensary and at "Cubi PT" in Oak Harbor, Washington. No dates of treatment were provided. At a VA audiological evaluation in September 1994 the veteran reported that she worked as an aviation storekeeper during service and did not always wear the hearing protective devices. Pure tone thresholds were not provided, due to the fact that they were not considered valid. Speech recognition scores were not obtained. Tinnitus was not claimed. The examiner reported that, "[n]o statement can be made regarding the adequacy of the patient's hearing, due to the invalid results that were obtained, as a result of her failure to follow instructions." The examiner recommended that the veteran's claim be terminated for failure to follow instructions. In her Notice of Disagreement, dated in January 1995, the veteran indicated that since separation from service in 1986 she has experienced hearing loss. He claimed that due to her hearing loss she is not able to clearly hear voices during conversation and that in order to hear the television or radio she must turn up the volume to a higher than normal level. In her substantive appeal, VA Form 9, dated in March 1995, the veteran indicated that prior to separation she was advised by medical personnel that audiological testing showed hearing loss. The veteran stated that this was at the same time in which she was experiencing ringing in both ears. The veteran reported that a private physician referred her to Dr. Brunstein, who specializes in audiology. The RO, by letter dated in June 1998, requested that the veteran provide an authorization of request of information for records of treatment provided by Dr. Brunstein and evidence of treatment for the claimed condition at it relates to service. She did not reply. In a VA audiological examination report, dated in July 1998, the examiner indicated that the C-file was reviewed. The veteran reported that during service she was an aviation storekeeper and was exposed to noise from aircraft, particularly while she was inspecting aircraft. She reported that she had difficulty understanding speech over the telephone and sometimes on the television. She indicated that she had used hearing protective devices. The veteran reported no history of ear infections or treatment. The veteran claimed that she had tinnitus, which she reportedly thought was in the right ear. The examiner reported the following: Pure tone thresholds are not reported due to the fact that they are not considered to be valid and reliable. However, SRTs (speech reception thresholds) were obtained at 14 dB in the right ear and 12 dB in the left ear. Speech recognition scores were 100% for the right ear and 100% for the left ear. Otoscopy revealed clear canals and normal appearing tympanic membranes bilaterally. Pure tone testing by air indicated moderate loss. However, these results were not in agreement with other test[s] results and are considered to be invalid. Speech reception thresholds were well within normal limits and speech discrimination ability was excellent at 40 dB HL which is at a level that is better than the alleged pure tone thresholds. Tympanometry was normal bilaterally. Acoustic reflexes were normal bilaterally. The examiner opined that based on a review of the claims file, previous testing and current test results, the veteran had no hearing loss. Consequently, the examiner concluded that no relationship had been established for hearing loss as a result of military 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 an organic disease of the nervous system, such as sensorineural hearing loss, becomes 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. This is a rebuttable presumption. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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). The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 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 her claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that her claim of entitlement to service connection for bilateral hearing loss must be denied as not well grounded. The veteran has failed to provide competent medical evidence of a current hearing loss disability as defined by 38 C.F.R. § 3.385. The medical evidence submitted in support of the claim consists of in-service and post-service audiometric examination reports, which were performed from June 1981 to July 1998. The service entrance examination report shows that the veteran had some hearing loss in both ears as defined by Hensley and she was noted by the examiner to have hearing loss in the left ear. However, she did not have hearing disability as set out in 38 C.F.R. § 3.385 in either ear. When she was given a hearing test in March 1984 her hearing had improved in the left ear as shown by the pure tone thresholds, all of which were 15 decibels or less. In the right ear she had a 25 decibel threshold at 3,000 Hertz but all other thresholds were within the normal range. At the service separation hearing test, her hearing was entirely normal in the left ear and, except for a 25 decibel threshold at 3,000 Hertz in the right ear, her hearing in that ear also was normal. Thus, the service medical records do not show that the veteran ever had a service connectable hearing disability at any time. 38 C.F.R. § 3.385. Additionally, her hearing on separation clearly was better than at entrance in the left ear and not remarkably changed in the right ear. After service, the veteran underwent two VA audiological evaluations. On both occasions the pure tone thresholds were not given inasmuch as they were found to be invalid. However, speech recognition scores were reported as 100% in each ear in the July 1998 VA examination report. In the present case, the determinant issue is one of medical diagnosis and etiology; therefore, competent medical evidence must be submitted to make the claim well grounded. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded if no cognizable evidence is submitted to support a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Although the veteran is competent to describe any hearing problems she may have, she is not qualified to diagnose hearing loss disability as provided in 38 C.F.R. § 3.385. The veteran has not presented or identified medical evidence that supports a diagnosis of a hearing loss disability as defined by 38 C.F.R. § 3.385. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As hearing disability has never been shown by competent evidence, the claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 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). Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice of the possible existence of information that would render the claim plausible, and therefore well grounded, VA has the duty to advise the appellant of the necessity to obtain the information. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). However, such evidence must be identified with some degree of specificity; with an indication that the evidence exists and that it would well ground the claim. See Carbino v. Gober, 10 Vet. App. 507, 510 (1997). In this case, the veteran has not identified medical evidence that would make her claim well grounded. Therefore, 38 U.S.C.A. § 5103(a) is not applicable to the present case. The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete her 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 bilateral hearing loss is denied. JANE E. SHARP Member, Board of Veterans' Appeals