BVA9504852 DOCKET NO. 93-15 509 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss and tinnitus. 2. Entitlement to service connection for chronic ear infection. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from September 1960 to June 1964. This appeal is from a January 1993 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he became hard of hearing and developed tinnitus while working in high noise levels in the fuel pump room and on the flight deck of an aircraft carrier. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence favors the veteran's claim for service connection for bilateral hearing loss and tinnitus. Further, it is the decision of the Board that the veteran's claim for service connection for chronic ear infection is not well grounded and must be dismissed. FINDINGS OF FACT 1. A hearing loss was not noted on the service entrance examination. 2. The first complaint of hearing loss occurred during service. 3. The first medical confirmation of hearing loss occurred a little more than three years after service discharge. 4. The veteran was exposed to prolonged excessive noise during service. 5. The veteran now has bilateral high frequency sensorineural hearing loss and complaints of tinnitus that are compatible with his case history. 6. There is no medical evidence of chronic ear infection during service or after service. CONCLUSIONS OF LAW 1. Bilateral high frequency hearing loss and tinnitus were incurred in service. 38 U.S.C.A. §§ 1111, 1131, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1994). 2. The claim for service connection for chronic ear infection is not well grounded and must be dismissed. 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet.App. 136 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral Hearing Loss and Tinnitus The service entrance examination in September 1960 found hearing acuity of 15/15 in each ear, with no clinical abnormalities and no history of any ear trouble. The veteran is therefore presumed to have been sound at service entrance. 38 U.S.C.A. §§ 1111, 1137. In September 1961 he complained that was "hard of hearing" and had been so most of his life. The latter comment is not clear and unmistakable evidence of a pre-service hearing loss, particularly in the context of his denial of ear trouble when examined for service. Nor does the bare complaint establish the presence of a hearing loss. I note, however, that he was not treated at that time for a cold or other condition commonly known to temporarily interfere with hearing. A notation of "get audiogram" was made, but there is no record of such action. At the discharge examination his hearing acuity was again measured as 15/15. In August 1967 the veteran was examined for Civil Service employment, and an audiogram revealed a bilateral hearing loss. This evidence was submitted by the veteran shortly after, and in conjunction with, his July 1993 hearing. While the RO has not had an opportunity to review the evidence, such review is unnecessary because this decision grants the benefit to which it relates. 38 C.F.R. § 20.1304(c) (1994). At his hearing in July 1993, the veteran testified that he had first noticed hearing difficulty, and ringing in his ears, while assigned to the fuel pump room of an aircraft carrier. He described other sources of noise exposure, and denied any significant exposure after service in the period before his 1967 audiogram. I find that his testimony is credible, as it is consistent with other evidence of record. When examined by VA in March 1992, the veteran was found to have bilateral sensorineural hearing loss, and complaints of tinnitus "compatible with the case history and data obtained." Because the veteran is presumed to have been sound at service entrance, complained of hearing loss during service, was exposed to excessive noise levels during service, and was found to have a bilateral hearing loss about three years after service, I find that his current hearing loss and tinnitus are more likely than not the result of disease or injury in service. The fact that "15/15" hearing was recorded at service discharge does not rule out a high frequency loss in this case. In addition, the veteran testified that he was tested with an audiometer at discharge and was unable to hear anything. Chronic Ear Infection There is simply no evidence of a chronic ear infection in or after service. Not even the testimony shows such a disability. 38 U.S.C.A. § 5107(a) requires that a veteran present evidence of a well-grounded claim. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, 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. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In this case, the absence of any evidence, medical or lay, is necessarily fatal to the claim. The claim must be dismissed. The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss and tinnitus is granted. The claim for service connection for chronic ear infection is dismissed. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.