BVA9504580 DOCKET NO. 93-13 636 ) DATE ) ) On appeal from the decision of 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 residuals of pneumonia. 3. Entitlement to a compensable rating for residuals of a fracture of the middle phalanx of the right little finger. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from December 1975 to August 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1992 from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss and residuals of pneumonia. The RO granted service connection for residuals of a fracture of the middle phalanx of the right little finger and assigned a noncompensable rating, effective from November 13, 1991. REMAND The service medical records reveal that the veteran sustained a fracture of the middle phalanx of the right little finger in April 1976. The evidence in the claims folder does not show additional medical treatment for that finger subsequent to the in-service treatment. In the November 1991 application for disability compensation, the veteran claimed entitlement to service connection for bilateral hearing loss and residuals of pneumonia, but did not request service connection for residuals of the little finger injury. However, the RO granted service connection after a review of the service medical records disclosed evidence of the prior fracture. In the June 1991 notice of disagreement, the veteran alleged that the residuals include functional impairment which affects his part-time employment as a musician. The representative argues that the veteran should have been afforded a VA compensation examination in order to determine the severity of any residuals, including functional loss, associated with his service-connected disability. The veteran seeks service connection for bilateral hearing loss and residuals of pneumonia. In support of his claim, he submitted several authorizations for the release of medical records, VA Form 21-4142, indicating treatment for the claimed disabilities by private physicians and at private medical facilities. The RO requested and received copies of treatment records from the indicated sources with the exception of Dr. Gentry, Realto, California, whom the veteran listed as retired. The records received do not show treatment or diagnosis of the claimed disabilities, or support the claim that the veteran currently has a disabling hearing loss or chronic residuals of pneumonia which were incurred or aggravated by active service. See 38 U.S.C.A. § 1131 (West 1991). The Board notes that a request for records dated in 1975 from the Wilford Hall Medical Center at Lackland Air Force Base, Texas, apparently was not completed. The RO also did not request records from the Norton Air Force Base Dispensary, San Bernadino, California; however, the record reveals that all the available service medical records have been requested and obtained. The evidence shows that the veteran underwent a VA compensation examination in February 1992. The results of audiometric testing indicate that the veteran does not currently have a disabling hearing impairment under the applicable regulation. It provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service-connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels; the threshold for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. § 3.385 (1993). The veteran also underwent a pulmonary examination which included extensive diagnostic testing. The objective physical examination and diagnostic test results failed to disclose chronic residuals which were related to active service. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is one that is plausible, that is meritorious on its own or capable of substantiation. If a claimant has not presented a well-grounded claim, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). Under the law, a claim for benefits need not be conclusive, but it must be accompanied by evidence. Tirpak v. Derwinski, 2 Vet.App. 604 (1992). The Court has also held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. (Citation omitted.) In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet.App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). Where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The assertions of a lay party on matters of medical causation or date of inception of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet.App. 511 (1993). VA has an obligation under 38 U.S.C.A. §§ 5103(a), 7722 (West 1991) to advise the appellant of the evidence necessary to complete his application for benefits. In this case, the veteran is hereby notified that preliminary review indicates that the "evidence necessary to complete the application" is medical evidence of the existence of a current disability and/or competent evidence that the claimed disorders are related to service. Thus, even though the veteran's claims for service connection do not appear well grounded at this juncture, once the development below is completed, the record must again be reviewed to determine whether his claim is ultimately well grounded. Thus, the veteran has an obligation to provide such evidence. Under the present circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should identify the names and addresses of any medical care providers, VA or otherwise, who have treated him for residuals of a fracture of the middle phalanx of the right little finger since February 1992. He should also identify available evidence which supports his claim for service connection for bilateral hearing loss and residuals of pneumonia. The veteran has indicated that he has received treatment in 1975 at the Wilford Hall Medical Center at Lackland Air Force Base. He should be requested to provide more specific information with respect to the dates of treatment at that facility. The RO should the request copies of any additional records which might be available from this facility. The response to such request should be preserved of record. 2. The veteran should then be afforded special VA orthopedic examination to determine the nature and extent of all residuals of the service-connected fracture of the middle phalanx of the right little finger. The examination report should include a medical history with notation of all claimed interference with employment, including any time lost from work. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed, including X-ray examination and range of motion studies. The physician must be provided the claims folder in connection with the examination. The disability should be evaluated in relation to its history, with emphasis upon the limitation of activity imposed by any disabling conditions. The physician should indicate the extent of functional loss, including that which is due to pain, and whether any such subjective impairment is consistent with the objective findings. 3. When the above development has been completed, the case should be reviewed by the RO, and any issues on appeal should be adjudicated. The rating decision should reflect consideration of all potentially applicable criteria, to include consideration of the applicability of 38 C.F.R. § 3.321(b)(1). If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. CHARLES E. HOGEBOOM 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).