Citation Nr: 0003129 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-06 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for otitis media. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from September 1944 to September 1947 and from April 1951 to August 1951. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in February 1998 by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran has presented no competent medical evidence of a current otitis media disability. 2. The veteran has presented no competent medical evidence of a current bilateral hearing loss disability. 3. The veteran has presented no competent medical evidence of a current tinnitus disability. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for otitis media is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 2. The claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 3. The claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order 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 injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In the present case, the veteran's claim for service connection for otitis media, bilateral hearing loss, and tinnitus is not well grounded because he has offered no credible medical evidence that he has any of these disabilities. At a hearing before the RO in September 1998, when asked how often he suffers from ear infections (presumably a reference to otitis media), the veteran testified, "Oh it could have been once a year, I'm not too sure, sometimes you don't even think about it, you just take care of it and go on. Transcript of Hearing (Transcript) at 2. With regard to hearing loss, the veteran testified that he knew he had a hearing loss "because people will bring it up, they are talking to me and I didn't hear or understand them, or I had to say 'would you repeat that please.'" Transcript at 5. The veteran made reference to an annual physical to which he submitted in 1996 or 1997, in which the doctor "checked my ears out pretty close, and he gave me an impromptu test using a tuning fork, and I wasn't aware of it and he was beating it on the desk. I wasn't picking up all the sounds." Transcript at 3. However, the veteran has submitted no evidence documenting that examination or any other examination for hearing loss. In fact, the veteran further testified that he has never had a formal hearing examination since his discharge from the service in 1951. Transcript at 5. With regard to his claim for service connection for tinnitus, the veteran testified that he hears ringing in his ears constantly, including while he was sitting for the hearing. Transcript at 7. However, like his claims for otitis media and bilateral hearing loss, the veteran has not submitted any medical evidence which would tend to support his claim for tinnitus. A threshold requirement in establishing service connection for a claimed disability is that the disability must be shown at present. The veteran has not met the first element required for his claim to be well grounded as he has presented no competent medical evidence of a current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability...In the absence of proof of a present disability there can be no valid claim." The veteran is certainly capable of describing his symptoms. However, it has not been indicated that he possesses the requisite medical knowledge to be able to opine on a matter involving medical principles or medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (layperson is generally not competent to render an opinion on a matter requiring medical knowledge, such as diagnosis or causation). Therefore, his lay assertions alone are insufficient to establish a current disability. Accordingly, the Board finds that the veteran's claim for service connection for otitis media, bilateral hearing loss, and tinnitus is not well grounded. The Board notes that the veteran has repeatedly requested a VA examination to support his claim for service connection for otitis media, bilateral hearing loss, and tinnitus. See VA Form 9, Appeal to Board of Veterans' Appeals, filed May 7, 1998 and Transcript at 5. However, until the veteran establishes a well grounded claim, VA has no duty to assist him in developing facts pertinent to the claim, including providing him a medical examination at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well grounded claim for compensation). The Board also notes that the veteran is free to submit new and material evidence, and reopen his claim for service connection, at any time. ORDER A claim for entitlement to service connection for otitis media, bilateral hearing loss, and tinnitus is not well grounded, and is accordingly denied. M. W. GREENSTREET Member, Board of Veterans' Appeals