Citation Nr: 0005941 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-25 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active duty in the United States Navy from May 1944 to May 1946. This appeal arose from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California which denied the veteran's claim of entitlement to service connection for bilateral hearing loss and from a February 1997 RO decision which denied service connection for tinnitus. The veteran has duly appealed these issues. In a July 1998 rating decision, the RO denied the veteran's claim of entitlement to service connection for head injury, back injury and fungus infection. The veteran filed a Notice of Disagreement as to that issue later in July 1998. A Statement of the Case was issued by the RO in August 1998. The veteran's claims folder does not reflect that he filed a substantive appeal as to that rating decision. In the absence of a perfected appeal, the Board is without jurisdiction to consider those issues and they will be addressed no further herein. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302 (1999). FINDINGS OF FACT 1. The veteran has presented no competent medical nexus evidence establishing a relationship between his currently diagnosed bilateral hearing loss and his service or any incident thereof, including combat-related noise exposure. 2. The veteran has presented no competent medical nexus evidence establishing a relationship between his currently diagnosed tinnitus and his service or any incident thereof, including combat-related noise exposure. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for tinnitus is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. In essence, the veteran contends that he served aboard the USS Silversides (SS 236) and was blown overboard in combat action, sustaining hearing loss and tinnitus. He further contends that he was hospitalized for injuries sustained in that incident and that service medical records relating to such are missing. In light of the similarity of the claimed disabilities and the common factual background presented, the Board will address these issues together. In the interest of clarity, the Board will first review the factual background of this case; briefly discuss the relevant law and VA regulations pertaining to the issues on appeal; and then analyze the veteran's claims and render a decision. Factual background As noted in the Introduction, the veteran served in the United States Navy from May 1944 to May 1946. His Notice of Separation, issued on May 15, 1946, lists his service as at the United States Naval Training Center in San Diego, California and aboard the USS Meriwether (APA 203). The USS Meriwether, an attack transport, was launched in October 1944 and departed San Diego in January 1945. Her only reported battle action was off Okinawa in April 1945, where she came under attack from kamikaze aircraft, one of which she helped splash on April 3rd. There is no indication of an explosion aboard ship or of any casualties sustained by the crew. The Meriwether then transported wounded from Okinawa to Saipan. The ship received one battle star for World War II service. Dictionary of American Fighting Ships, Vol. IV (Navy Department, Naval History Division, 1969). The USS Silversides (SS 236), a submarine, had a lengthy and distinguished career, receiving twelve battle stars. There is no indication that she ever rammed a Japanese destroyer escort. Dictionary of American Fighting Ships, Vol. VI (Naval History Division, Department of the Navy, 1976). The veteran's service medical records have been carefully reviewed. Records dated in August 1945 and January 1946 indicate that he was serving aboard the USS Meriwether. There is no indication in the service medical records that the veteran was involved in an explosion or was hospitalized due to injuries sustained in an explosion. In January 1946, the veteran reported that he was injured at birth and that he always had a small scar in the occipital area. The veteran further stated that approximately one year earlier he received a blow to that area which had left a larger scar which failed to heal completely. He was sent to the U.S. Naval Hospital at Treasure Island, California, where he again stated that he had a scar from a birth injury. He did not mention a blow to the head but stated that "he keeps bumping this area and breaking it open." A tender scar on the scalp was identified, which was assessed as being too wide for excision. During the same outpatient visit in January 1946, the veteran complained of hearing loss of the left ear. The report states: "wax removed . . . with recovery of hearing." The veteran's separation physical examination in May 1946 was pertinently negative. There was no mention of an explosion in the history of illness or injury. With respect to hearing disease or defects, the examiner's response was "none". Whispered and spoken voice tests were both 15/15. There are no pertinent medical records for almost a half century after service. Of record is a November 1994 report of L.A.M., a Clinical Audiologist. The veteran complained of tinnitus and hearing loss dating back approximately ten years. Audiometric studies revealed mild to moderate bilateral sensorineural hearing loss. Speech discrimination scores were 68% in both ears. Also of record is the report of a VA audiological examination in June 1995. The veteran complained of decreased hearing loss as well as tinnitus which had become worse over the preceding two years. He reported noise exposure in serve as a machinist mate and post service in construction. The examiner's impression was mild to severe sensorineural hearing loss. VA ear disease and audiology examinations were completed in January 1996. Physical examination of the ear was essentially normal. Audiological testing revealed moderate to severe bilateral hearing loss. The veteran described moderately severe to severe high pitched ringing in his ears which had begun approximately ten years earlier. The veteran did not mention his naval service and stated that he could not be specific about the time and place of onset. In his March 1997 substantive appeal (VA Form 9), the veteran stated that his hearing loss began when the USS Silversides rammed a Japanese destroyer escort during World War II. The veteran stated that he was blown into the water "resulting in my transfer to APA 203, acting as an emergency hospital ship, and ultimately to Treasure Island Hospital. I sustained head injuries . . . ." The veteran further stated, in essence, that if service medical records did not reflect this then some of his service medical records must be missing. Relevant Law and Regulations Service connection In general, under pertinent law and VA regulations, service connection may be granted for disability which is attributable to military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1998). In cases in which sensorineural hearing loss is involved, service connection may be granted if permanent hearing loss appeared to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999); Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may be granted notwithstanding the lack of a diagnosis in service or within one year thereafter if the evidence demonstrates that there is a connection between military service and the disease. 38 C.F.R. § 3.303(d) (1999); Cosman v. Principi, 3 Vet. App. 505, 505 (1992). "If evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service. . . . " Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). 38 U.S.C.A. § 1154(b) (West 1991) provides that, with respect to combat veterans, "The Secretary shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service- connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (1999). Well grounded claims The initial inquiry as to any issue presented on appeal is whether the claim is well grounded. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). A mere allegation of service connection is not sufficient; there must be evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The United States Court of Appeals for the Federal Circuit has held that "a well grounded claim is a plausible claim, one that appears to be meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit some supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Analysis As discussed above, in order for a claim of entitlement to service connection to be well grounded, there must be competent evidence of a 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 Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to current disability, there is ample evidence of hearing loss and tinnitus. The first Caluza prong is therefore satisfied. With respect to the second Caluza prong, in-service incurrence, the veteran contends that he was treated for hearing loss during service. The Board notes one specific record pertaining to hearing loss, the January 1946 report from Treasure Island Naval Hospital which indicates that the veteran's complaints of left ear hearing loss resolved with the removal of ear wax. There is no evidence of tinnitus or right ear hearing loss during service. The Board concludes that there is no medical evidence of chronic hearing loss and/or tinnitus during service. As discussed above, and as noted in the medical records, the one instance referencing to hearing loss during service makes it clear that this was an acute and transitory condition due to accumulation of ear wax. Testing done during the separation physical examination failed to detect any hearing loss. The Board is aware that the testing employed during service lacked sophistication. However, one cannot conclude from this fact alone that hearing loss was present during service. The veteran further contends, however, that his current hearing loss and tinnitus are the result of combat during World War II. For the reasons that follow, the Board finds that the veteran may be considered to be a combat veteran, although the Board rejects the specifics of the veteran's presentation. According to the veteran, he was aboard the USS Silversides and was injured in combat when the Silversides rammed a Japanese destroyer escort. The veteran then claims that he was transferred to the USS Meriwether, which was acting as a temporary hospital ship, and was transported to Treasure Island Naval Hospital for treatment of head injuries. The official records and other historical information discussed above do not indicate that the veteran was ever assigned to the USS Silversides or that the ramming incident ever took place. The veteran was assigned to the USS Meriwether, which did indeed act as a temporary hospital ship in April 1945. The veteran was indeed treated at Treasure Island Naval Hospital, but this was on an outpatient basis in January 1946, many months after hostilities ended. Moreover, the treatment was for exacerbation of a childhood head injury and removal of ear wax, not for any head injuries allegedly sustained aboard USS Silversides. Nonetheless, the Board's research clearly indicates that the USS Meriwether indeed saw action off Okinawa in April 1945 and was awarded a battle star. There is no evidence that the veteran was not aboard at that time. The Board therefore concludes that the veteran served in combat during World War II. The statutory presumptions relating to combat are therefore applicable in this case. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board therefore acknowledges that the veteran was exposed to noise in combat. Having found evidence of a current hearing loss disability and of in-service exposure to noise, the Board must determine whether medical nexus evidence exists. There is no medical record which even mentions the veteran's naval service, much less ascribes hearing loss and tinnitus to such service. The Board has considered the provisions of 38 U.S.C.A. § 1154 (b) and 38 C.F.R. § 3.304(d) (1998), which provide that 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. As noted above, the veteran's combat status is acknowledged. However, 38 U.S.C.A. § 1154(b) does not serve to eliminate the medical nexus requirement found in Caluza. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Even after assuming combat status, the veteran must provide satisfactory evidence of a relationship between his service and his current hearing loss and tinnitus. He has not done so. To make the hearing loss disability and tinnitus claims well grounded, the veteran would need a medical opinion providing a nexus between it and his service, including acoustic trauma he sustained. The remoteness of time from service of the medical opinion would not necessarily matter, as long as the medical evidence relates the current disability to service. See 38 C.F.R. § 3.303(d); Godfrey, supra. In the absence of such specific medical evidence, the Board is not able to conclude, on its own, the veteran's current hearing loss disability is related to any incident of service origin, including combat-related noise exposure. See Colvin v. Derwinski, 1 Vet. App. 171, 177 (1991). The veteran's own statements can not supply a competent medical diagnosis of a current medical disability, its date of onset, or its etiology. These matters can only be established by competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). In short, for the reasons and bases expressed above, the Board has concluded that the veteran has not presented a well-grounded claim of entitlement to service connection for hearing loss and tinnitus. The benefit sought on appeal is accordingly denied. Additional matters Because the veteran's claim for service connection is not well-grounded, VA is under no duty to further assist him in developing facts pertinent to that claim. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a); Epps v. Gober, 126 F.3d 1454 (Fed. Cir. 1997). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). VA is not on notice of any other known and existing evidence which would make the adjudicated service connection claim plausible. The Board's decision serves to inform the veteran of the kind of evidence which would be necessary to make his claim well- grounded, namely competent medical evidence which provides a nexus between the veteran's service and his hearing loss and tinnitus. In his substantive appeal, the veteran expressed doubts that all of his service medical records were obtained. The Board has reviewed the service medical records and it does not appear that any service medical records are missing. It further appears that the RO took all appropriate steps to secure any and all service medical records and associate them with the veteran's claims folder. The Board further observes that the veteran has contended, in effect, that if service medical records do not verify his story concerning injury on the USS Silversides, then some service medical records must be missing. However, the Board notes that the objective historical evidence, including the veteran's own discharge, do not indicate that he ever served aboard the USS Silversides. See 38 C.F.R. § 3.203 (1999). Thus, the premise for the veteran's contention that service medical records may be missing is faulty. In any event, as discussed in detail above, the Board has conceded noise exposure during combat and has denied the veteran's claims based on lack of medical nexus evidence, which manifestly could not be supplied by World War II service medical records. The Board is of course aware of the decision of the United States Court of Appeals for the Federal Circuit in Hayre v. West, 188 F. 3d 1327 (Fed. Cir 1999) to the effect that a single request by VA for service medical records does not satisfy the statutory duty to assist. In this case, after receiving the veteran's service medical records in August 1996, the RO did indeed undertake a second search for records, in July 1998, with negative results, thus satisfying the requirements of Hayre. In addition, in this case, unlike Hayre, the veteran's claim is not well grounded and therefore there is no duty to assist in any event. ORDER A well grounded claim not having been submitted, service connection for bilateral hearing loss is denied. A well grounded claim not having been submitted, service connection for tinnitus loss is denied. Barry F. Bohan Member, Board of Veterans' Appeals In the discussion which follows, the Board does not intend to impugn the veteran's veracity. The Board has noted that during a general VA physical examination in May 1996, the examiner noted memory loss as a diagnosis. It was noted that the veteran forgets where he parks his car. The Board observes in passing that if a claimant believes there is a reason to dispute the report of the service department or the contents of military records, the proper course for that claimant is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).