Citation Nr: 0001158 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 99-07 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hearing loss disability of the right ear. 2. Entitlement to service connection for tinnitus of the right ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Associate Counsel INTRODUCTION The veteran served on active duty for training from September 1973 to January 1974 and on active duty from May 1975 to November 1976. This appeal arises from a November 1998 rating decision of the New Orleans, Louisiana, Regional Office (RO) that denied service connection for hearing loss and from a March 1999 rating decision that denied service connection for tinnitus. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the veteran's claims has been obtained. 2. The veteran was treated during service for a ruptured eardrum following an injury incurred while playing football. 3. At separation from service, the veteran reported having no ear trouble, and audiometric testing did not reveal any right ear hearing loss disability. 4. Post-service examinations revealed intact tympanic membranes. 5. On Department of Veterans Affairs (VA) audiological evaluation in January 1999, the veteran demonstrated a hearing loss disability in his right ear. 6. There is no competent evidence of record attributing the veteran's current right ear hearing loss disability to service. 7. There is no competent evidence of record diagnosing the veteran with tinnitus at the present time or attributing any tinnitus to service. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss disability of the right ear is not well grounded. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (1999). 2. The claim for service connection for tinnitus of the right ear is not well grounded. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the two claims, the Board must first determine whether they are well grounded. 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 held that, under 38 U.S.C. § 5107(a) (West 1991), 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 held that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). The threshold question is whether a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. If a claimant meets this threshold requirement, VA's duty to assist in developing the facts pertinent to the claim under 38 U.S.C.A. § 5107(a) is triggered. A well grounded claim requires (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). If the determinative issue involves medical causation, medical 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. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In this particular case, there are several statutes and regulations which the Board must consider to determine if service connection is warranted. First, there is the statutory and regulatory framework for diseases or injuries incurred in or aggravated during active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Second, the Board must consider whether presumptive service connection is warranted based on the legal framework for diseases or injuries manifested to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1112, 1133 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Hearing loss The veteran contends that an in-service injury resulted in hearing loss at the present time. Service medical records document that the veteran was treated for right ear pain after being injured while playing football and that he was experiencing hearing loss. The impression was a ruptured tympanic membrane. He received Ampicillin and Actifed. However, there is no further evidence of residuals. At a September 1999 hearing before the Board, the veteran testified that he developed some tinnitus several weeks after the injury. Despite this testimony, at the time of his separation from service, he did not report any ear trouble, either hearing loss or ringing in his right ear. By contrast, in August 1973, at the time of his entry into service, he had reported having had or then having ear trouble. Moreover, at separation, he underwent an audiometric evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 5 5 LEFT 5 5 5 10 5 The existence of a hearing loss disability for Department of Veterans Affairs (VA) purposes is based on the criteria set forth in 38 C.F.R. § 3.385 (1999): For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. At the time of his separation from service, the audiometric evaluation did not warrant a finding of hearing loss disability on the basis of 38 C.F.R. § 3.385. In January 1999, the veteran underwent a VA audiological evaluation. The examining audiologist first noted that the "best indication of [the veteran's] true organic thresholds are the minimum contralateral interference levels" and that "[h]is hearing is no poorer than the interference levels reported." Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 - 35 LEFT 15 15 10 15 15 Speech audiometry revealed speech recognition ability of 85 and 90 percent in the right ear. Thus, based on the January 1999 audiological evaluation's CNC test levels, the veteran currently has a hearing loss disability as defined by 38 C.F.R. § 3.385. However, as discussed above, a well-grounded claim requires an in-service occurrence or aggravation of a disease or injury, a medical diagnosis of a current disability, and medical evidence of a nexus between these two items. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. at 506. In this case, there is no competent evidence of a nexus between the in-service right ear injury and any current hearing loss disability. In April 1981, the veteran sought treatment at a VA hospital for an upper respiratory infection. At that time, his past medical history was negative for accidents or injuries. Indeed, on examination, his tympanic membranes were intact and the canals were clear. Moreover, in July 1986, he reported having been experiencing popping and crackling in his right ear along with reduced hearing and a white discharge from his right ear one year earlier (i.e., in 1985). On examination, the canals were clear and the drums were OK. Hearing on the right was slightly reduced. The impression was right ear symptoms, cause uncertain. The evidence between the veteran's separation from service and his January 1999 VA audiological evaluation does not provide a nexus between the later findings and his service. Bolstering the finding of a lack of a nexus, the veteran testified in September 1999 that he did not seek any treatment until the late 1980s for his right ear condition. Thus, by the veteran's account, the period of time between his separation from service and treatment in the 1980s lacks evidence of continuity. On questioning at the September 1999 hearing, the veteran stated that an audiologist had told him that hearing loss could result from the in-service injury, but he was unable to provide any additional information that would be of assistance in obtaining any such evidence. Since the veteran is not capable of providing an opinion on this nexus issue, see Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992), his statements do not render his claim well grounded. Accordingly, the veteran's claim for service connection for hearing loss of the right ear is not well grounded. Tinnitus The Board now turns to the veteran's service connection claim for tinnitus. His service medical records do not mention tinnitus. Although he testified in September 1999 that he began experiencing ringing in his ears several weeks after the late September 1976 in-service injury, at the time of the separation examination in mid-October 1976, he reported having had no ear trouble. Thus, the in-service reports contradict the veteran's current version of his symptoms. Moreover, the veteran has not submitted a medical diagnosis of tinnitus at the current time. Accordingly, absent evidence of an in-service injury, a diagnosis of a current disability, and evidence of nexus between an in-service injury and a current disability, the veteran's service connection claim for tinnitus is not well grounded. As discussed above, if a claimant does not submit a well grounded claim, the duty to assist does not attach. 38 U.S.C.A. § 5103(a) (West 1991); see McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). However, where a claimant puts VA on notice of the existence of evidence which would make the claim well grounded, VA is obligated, under 38 U.S.C.A. § 5103(a), to advise the claimant of the evidence needed to complete the application for benefits. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, with respect to both service connection claims, unlike the situation in Robinette, the veteran has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, might make the claims well grounded. Therefore, VA is not on notice of any records that are facially relevant to the veteran's service connection claims. ORDER Service connection for hearing loss is denied as not well grounded. Service connection for tinnitus is denied as not well grounded. JEFF MARTIN Member, Board of Veterans' Appeals