Citation Nr: 0007866 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-14 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder, claimed as emphysema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from December 1951 to May 1952 and from January 1954 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. That rating decision continued a noncompensable (0%) percent rating for the veteran's service connected hearing loss. That rating decision also denied service connection for a respiratory disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected hearing loss is manifested by a pure tone threshold average of 64 decibels in the right ear and 53 decibels in the left ear with speech recognition ability of 92 percent correct in the right ear and 96 percent correct in the left ear. Based on this, the veteran has level II hearing in right ear and level I hearing in the left ear. 3. There is no competent medical evidence of a respiratory disorder during service. 4. The earliest medical reports containing a diagnosis of emphysema or chronic obstructive pulmonary disease (COPD) are dated almost two decades after service and do not relate the lung disorder to military service. 5. There is no medical opinion, or other competent evidence, linking any current respiratory disorder to the veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for service connected hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.85 and Diagnostic Code 6100 (1999). 2. The appellant has not presented a well grounded claim for service connection for a respiratory disorder, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hearing Loss The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that hearing loss disability has increased in severity is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, and Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part, or system, in self support of the individual. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, while the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran has been service connected for bilateral hearing loss dating from his separation from active service. In December 1997 the most recent VA audiological evaluation of the veteran was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 75 70 LEFT 45 45 60 60 The average pure tone decibel loss at the above frequencies was 64 for the right ear and 53 for the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. These audiometric results translate into level II for the right ear and level I for the left ear. 38 C.F.R. § 4.85, Tables VI, VII (1999). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometric tests. To evaluate the degree of disability from bilateral service- connected defective hearing, the revised rating schedule establishes eleven levels of impaired efficiency numerically designated from level I to level XI. Level I represents essentially normal audio acuity with hearing loss increasing with each level to the profound deafness represented by level XI. 38 C.F.R. § 4.85 and Part 4, Diagnostic Code 6100 (1999). Furthermore, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evidence is against the veteran's claim for an increased rating for his service connected hearing loss. The audiology data from the December 1997 VA examination reveals that he has level II hearing in his right and level I hearing in his left ear. When a veteran has level II hearing in his right and level I hearing in his left ear a noncompensable (0%) rating is warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). As such, the preponderance of the evidence is against the veteran's claim for an increased rating for his service connected left ear hearing loss. II. Respiratory Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). The law provides 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) (West 1991)(emphasis added). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Epps v Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element 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, such as the occurrence of an injury, 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. Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this case, the determinative issues presented by the claim are (1) whether the veteran had a chronic respiratory disorder during service; (2) whether he has any current respiratory disorder; and, if so, (3) whether this current disability is etiologically related to active service. The Board concludes that medical evidence is needed to lend plausible support for all of the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran's service medical records appear to be complete. The veteran retired after 20 years of military service and the service medical records show occasional treatment for such mundane aliments as acute and transitory upper respiratory infections. However, there is no indication in any of the service medical records that the veteran had complaints of, or was diagnosed with, a respiratory disorder during service. On the veteran's separation medical history, the veteran indicated that he suffered from shortness of breath. However, the examining physician's evaluation was "seasonal colds and hay fever." On the March 1973 separation examination the veteran's lungs were noted to be "normal" with no abnormalities noted by the examining physician. The veteran asserts that he suffered from dyspnea, shortness of breath, during service and ever since. He claims that his complaints of dyspnea at the time of his separation examination were ignored by the examining physician. However, the medical history offers the explanation of hay fever and the clinical evaluation of his lungs was normal. The veteran also asserts that he has suffered shortness of breath ever since service but waited almost two decades to seek treatment because of job related concerns. As a military retiree the veteran is eligible to receive medical treatment at service department medical facilities. Post-service, service department treatment records dating from approximately 1993 reveal that the veteran is diagnosed with chronic obstructive pulmonary disease. In September 1997 a VA Compensation and Pension examination of the veteran was conducted. The diagnosis was chronic bronchitis and emphysema. Along with his July 1998 notice of disagreement, the veteran submitted numerous lay statements. These statements are all to the effect that the veteran apparently suffered from cough and short breath subsequent to service. The veteran also submitted an April 1998 letter from his treating service department physician. This letter confirms the veteran's current diagnosis of emphysema and COPD and relates these disorders to the long history of tobacco use. The letter when on to state that "I cannot say for certainty what was causing his pulmonary dysfunction in 1973 when he filled out his end of service questionnaire. However, it would not be unreasonable for this to have been the early states of emphysema which may or may not have been exacerbated at the time by any allergies and or colds that he may have been having." The Board notes that the medical history provided to this physician was provided solely by the veteran. Bare transcription of medical history provided by the veteran by a physician does not transform such evidence into competent medical evidence for the purposes of establishing a well grounded claim. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Recently the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) addressed the terminology used in medical opinions in the case of Bloom v. West. In the Bloom case the Court held that a medical opinion using the term could without supporting clinical data or other rationale was too speculative to provide the degree of certainty required for medical nexus evidence. However, the Court went on to state that word parsing in medical nexus cases has created an unclear picture for ascertaining what constitutes sufficient evidence to satisfy the medical nexus element. The Court went on to explain that no template is possible in such cases. Rather the key is the clinical data or rationale involved. Opinions which are unsupported or unexplained are considered too speculative to provide the required medical nexus. Bloom v. West, 12 Vet. App. 185 (1999). In the instant case the physician specifically relates the veteran's current COPD and emphysema to tobacco use. His assertions related to the veteran's service are too speculative to provide the required medical nexus. The veteran fails to show the required nexus between his current lung disabilities, and any in-service disease or injury he incurred. See Caluza, 7 Vet. App. at 506. There is no medical evidence establishing a link to the veteran's active military service. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505 (1993). Regulations require a continuity of symptomatology to link the post-service symptoms to injury during service when the fact of chronicity in service is not adequately supported. 38 C.F.R. § 3.303(b) (1999). There is no evidence of a respiratory disorder during the veteran's military service and no competent medical evidence relating the current disorders to service. Therefore, the veteran does not meet the second and third elements required for the claims to be well grounded. See Caluza, 7 Vet. App. at 506; Dean v. Brown, 8 Vet. App. 449, 455 (1995); Slater v. Brown, 9 Vet. App. 240 (1996). "A claim for a disability cannot be well grounded unless there is a medical opinion that links the current disability to the appellant's term of service. In the usual case this nexus would consist of a medical diagnosis of a current disability that 'looks backward' to an in-service disease or injury and links the two." Martin v. Gober, 10 Vet. App. 394 (1997); Caluza, 7 Vet. App. at 506; Dean v. Brown, 8 Vet. App. 449, 455 (1995); Slater v. Brown, 9 Vet. App. 240 (1996). The Board has thoroughly reviewed the claims file. However, we find no evidence of a plausible claim. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, it must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate it). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER An increased rating for hearing loss is denied. Because it is not well-grounded, the veteran's claim for service connection for a respiratory disorder is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals