Citation Nr: 0006676 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-06 680A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from August 1945 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision by the RO that denied a claim of entitlement to service connection for hearing loss. FINDING OF FACT No competent medical evidence has been presented to link the veteran's hearing loss to military service. CONCLUSION OF LAW The claim of service connection for hearing loss is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). 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 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. For the purposes of applying the laws as administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those 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). In the veteran's case, a May 1997 VA audiological evaluation establishes that the veteran has bilateral hearing loss disability by VA standards pursuant to 38 C.F.R. § 3.385. The veteran claims that his hearing loss is the result of exposure to acoustic trauma from the many rounds he fired using twin five-inch guns as a shell man in service. He also contends that, because his hearing loss was noted in 1946 not only by himself, but by members of his family, who are now deceased and cannot testify on his behalf, any lack of service medical records showing complaints of hearing problems should not be considered as proof that his hearing loss did not have its onset in service. Based on a review of the evidence, the Board finds that the veteran's claim of service connection for hearing loss is not well grounded. The veteran's service records indicate that he served in the United States Navy and qualified as a rifle marksman. His service medical records include a July 1945 pre-enlistment examination that revealed hearing of 15/15 in both ears. An August 1946 separation examination report shows that his left and right ear hearing was 15/15 on whispered voice testing. No diseases or defects of the ears were noted. Post-service treatment reports do not contain a diagnosis of any hearing loss until October 1992, approximately 46 years after the veteran's separation from service. An October 1992 private hearing evaluation report indicates that, when the veteran was examined, he had bilateral high frequency hearing loss, greater on the right than the left. It is not until May 1997, when examined by VA, that the veteran had a bilateral hearing disability by VA standards as set forth in 38 C.F.R. § 3.385 (1999). At the May 1997 VA audiological evaluation, the veteran reported that he had had difficulty hearing since 1946, when he was a shell man on five-inch guns. Other otologic history included a mastoidectomy four years earlier. The examiner noted occupational noise exposure as the veteran had worked in the printing business. Examination revealed puretone thresholds of 5, 15, 20, 25, and 55 decibels in the left ear and 15, 15, 40, 50, and 50 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz (Hz), respectively. Speech recognition ability of 90 percent in the left ear and 84 percent in the right ear were noted. The examiner noted that left ear hearing was within normal limits through 3000 Hz followed by a moderate sensorineural hearing loss with excellent speech recognition ability. The examiner also noted that the right ear hearing was within normal limits through 1000 Hz followed by an essentially mild to severe sensorineural hearing loss with good speech recognition ability. At a May 1997 VA audio-ear disease examination, the veteran complained of hearing loss, right ear greater than the left. He denied any past history of ear infections or ear surgery. He reported that his hearing loss began after exposure to gunfire noise in service. Following discharge from service, the veteran was employed as a printer. He reported that, he had had occasional exposure to printing press noise but was required to use ear protection. Bilateral moderate high- frequency sensorineural hearing loss, right ear greater than the left ear, and tinnitus secondary to hearing loss were diagnosed. The examiner opined that high-frequency sensorineural hearing loss and tinnitus can be secondary to a past history of noise exposure. The veteran submitted a statement, received in August 1997, indicating that the presses that he worked on did not require ear protection and that he only worked on them for about seven years. He noted that for 30 years, he worked in a quiet environment called Pre-Press with negatives. As noted above, the veteran must present competent medical evidence of both currently disability and a relationship between that disability and service. Although the record shows that the veteran was found to have a hearing loss disability since at least October 1992, and a hearing loss disability by VA standards in May 1997, none of the examiners has specifically related such hearing loss disability to service, including any exposure to noise in service. The statement by the May 1997 VA examiner does not specifically link current disability to the in-service noise exposure experienced by the veteran. Rather, the examiner provided only a generic statement about the possibility of a link between noise exposure and high-frequency sensorineural hearing loss. Such a statement is too general and inconclusive to make the claim well grounded in the veteran's case. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (doctor's statement which does not link chest trauma specifically to appellant's current condition, but instead contains only a generic statement of a relationship between chest trauma and restrictive lung disease, is too general and inconclusive to make the claim well grounded). In short, no competent medical evidence has been presented to show that the veteran currently experiences hearing loss disability that is attributable to his period of active military service. The Board has taken into consideration the veteran's statements regarding the onset of hearing loss disability. However, while he is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, there is no indication that he is competent to comment upon etiology or time of onset of currently diagnosed disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu, 2 Vet. App. at 495. In a February 2000 brief, the veteran's representative requested that the Board consider the provisions of 38 U.S.C.A. § 1154(b), 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 even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In the veteran's case, his service records do not reflect that he served in combat. Nevertheless, the Court has held that invocation of section 1154(b) does not serve to eliminate automatically the medical nexus requirement found in Caluza, 7 Vet. App. at 507. Although section 1154(b) relaxes the evidentiary requirement as to the evidence needed to render a claim well grounded, that section deals only with the occurrence of an event in service, not the issues of either current disability or nexus to service, as to both of which competent medical evidence is generally required. Id. Accepting the veteran's statements of noise exposure in service as accurate, as well as his report of having had continuous problems since service, the Board nevertheless finds that a he has not presented competent medical evidence of a relationship between current disability and military service or continued symptoms since service. (The statutory presumption of 38 C.F.R. § 3.307 does not aid the veteran because no evidence has been submitted to show that sensorineural hearing loss was manifested to a compensable degree within a year of his separation from service. 38 C.F.R. §§ 3.307, 3.309.) ORDER Service connection for hearing loss is denied. MARK F. HALSEY Member, Board of Veterans' Appeals