Citation Nr: 0007342 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-12 486A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for vertigo. 4. Entitlement to service connection for fractures of the lumbar spine, with right lower extremity symptoms. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran served on active duty from March 1955 to March 1957, with 1 year and 10 months prior service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision rendered by the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefits sought on appeal. This case was previously before the Board in October 1999, at which time the Board remanded the case to the RO for the purpose of affording the veteran a right to an "in-person" hearing before a Board Member. In October 1999, the veteran submitted a letter to the RO stating that he no longer desired an "in-person" Board hearing, and that he wished to have the case returned to the Board for appellate consideration. As the case has been returned, the Board now undertakes appellate review. FINDINGS OF FACT 1. The medical evidence of record demonstrates that the veteran has bilateral hearing loss, as defined by VA regulations. 2. There is medical evidence of record sufficient to show that the veteran's bilateral hearing loss is causally or etiologically related to service. 3. There is medical evidence of record sufficient to show that the veteran's diagnosed left ear tinnitus is causally or etiologically related to service. 4. There is no medical evidence of a nexus or link relating the veteran's currently diagnosed vertigo to active duty service. 5. There is no medical evidence of a nexus or link relating the veteran's currently diagnosed lumbar spine disability to active duty service. CONCLUSIONS OF LAW 1. The veteran's bilateral hearing loss was incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (1999). 2. The veteran's left ear tinnitus was incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). 3. The veteran's claim of entitlement to service connection for vertigo is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran's claim of entitlement to service connection for a lumbar spine disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated while in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). However, the threshold question that must be answered in this case is whether the veteran has presented well-grounded claims for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17(1993). To establish that a claim for service connection is well grounded, a veteran must present a medical diagnosis of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the United States Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. At the outset, it is apparent that the veteran's service medical records (SMRs) for his periods of service are unavailable from the National Personnel Records Center (NPRC). The RO has undertaken all reasonable efforts to reconstruct the SMRs from alternative sources, but such efforts have been largely unsuccessful. The Board notes that the veteran has been notified by VA of the efforts made to locate these records. See Hayre v. West, No. 98-7046 (Fed. Cir. Aug. 16, 1999). The Board further notes, however, that for the purposes of analyzing whether the veteran's claims are well grounded, the Board accepts as true the veteran's contentions that he sustained injuries to his ears and lumbar spine during service. See King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, under the circumstances, the Board does not believe any useful purpose would be served by remanding the case for any further search for records. I. Service connection for bilateral hearing loss and tinnitus Initially, the Board finds that the veteran's bilateral hearing loss and tinnitus claims well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claims are plausible; meritorious on its own or capable of substantiation. Grivois, 6 Vet. App. at 140 (1994); Murphy, 1 Vet. App. at 81 (1990). A May 1997 VA audiological examination report recited the veteran's complaints of gradually decreasing hearing and constant, bilateral tinnitus, over the previous two years. The examiner noted that the veteran's "history is positive for military noise exposure." In pertinent part, puretone threshold testing of the right ear revealed 40 dB at 3000 hertz and 60 dB at 4000 hertz, while left ear testing revealed 50 dB at 3000 hertz and 65 dB at 4000 hertz. Speech recognition scores, based on the Maryland CNC word list were 88 percent in the right ear and 90 percent in the left ear. The examiner interpreted these readings to demonstrate that the veteran suffered from mild to moderately severe high frequency sensorineural hearing loss from 3000 through 8000 hertz. A June 1997 VA audiological-ear disease examination report noted a review of the May 1997 VA audiological examination report. The veteran complained of bilateral tinnitus, worse in the left ear than on the right. It was noted that the audiogram revealed mild to moderately severe high frequency sensorineural hearing loss, bilaterally. The assessment was "[b]ilateral sensorineural hearing loss. This is consistent with noise exposure while in the military." A June 1997 VA neurological disorders examination report recounted that the veteran had a history of constant ringing in the left ear. The diagnoses included constant ringing of the left ear with vertigo. A December 1999 note from a private physician associated with the Trover Clinic, Dr. Matson, stated that the veteran had "occupational noise exposure while on active duty. He now has [a] hearing deficit . . ." In order to determine whether the veteran has incurred service-connected hearing impairment, the Board must first analyze whether the veteran is shown to be hearing impaired by VA standards, pursuant to 38 C.F.R. § 3.385 (1999), which states that [i]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. A review of the medical evidence indicates that, in accordance with the auditory threshold readings recorded in the May 1997 VA audiological examination report, the veteran meets the criteria for bilateral hearing impairment as defined by the applicable regulation, 38 C.F.R. § 3.385, on the basis that at least a 40 dB loss was detected in both ears at the applicable puretone thresholds. Moreover, as the medical evidence contains one VA opinion stating that the veteran's bilateral hearing loss is consistent with noise exposure while in the military, coupled with a similar opinion from Dr. Matson, service connection for bilateral hearing loss is warranted as the preponderance of the evidence demonstrates that the veteran's bilateral hearing loss is attributable to acoustic trauma sustained in service. With regard to the veteran's tinnitus claim, the Board notes that although the veteran has reported bilateral tinnitus, the only diagnosis relating to tinnitus is for left ear tinnitus only. Although the medical evidence does not specifically relate the veteran's left ear tinnitus to acoustic trauma sustained in service - as it does for bilateral hearing loss - it is pertinent to point out that the veteran's service-connected bilateral hearing loss began during service and is sensorineural or high frequency in type. It is the Board's judgment that the evidence is at least in equipoise as to whether the veteran's left ear tinnitus is etiologically related to his exposure to excessive noise during service. Accordingly, service connection for left ear tinnitus is warranted. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Service connection for Vertigo The May 1997 VA audiological examination report stated that the veteran complained of dizziness episodes, which occur once a week and last only a few seconds at a time. A VA neurological examination on June 7, 1997 the veteran complained of dizziness and vertigo on average of once a week, lasting a few seconds. The examiner made a diagnosis of constant ringing in the left ear with vertigo. The physician stated that it may be related to his ear and that therefore he would ask an ENT physician to see the veteran. A June 28, 1997 VA audiological-ear disease examination report recounted that the veteran complained of vertigo twice monthly, lasting a few seconds at a time. Objectively, the ears were within normal limits. The physician diagnosed bilateral sensorineural hearing loss consistent with his noise exposure while in the military. The physician entered a separate assessment for vertigo and said the etiology of the vertigo was unknown. A July 1997 VA magnetic resonance imaging (MRI) of the brain revealed that there was fluid and/or soft tissue change in the preponderance of the left mastoid air cells with no masses or hemorrhages, but there were punctuate areas of increased T2 signal in the deep white matter of both frontal lobes, which were noted to be suspicious for small infarctions and/or demyelination. There was also mild to moderate atrophy detected. The above findings were noted to constitute an abnormality that needed attention. A July VA MRI of the internal auditory canals revealed a minor abnormality, but there were no posterior fossa masses. VA treatment records in August 1998 show that the veteran suffered from bilateral ear otitis infections. Although there are no SMRs to show that the veteran suffered from vertigo in service, for the purposes of determining whether his claim is well grounded, the Board accepts as true the veteran's statements that he did have at least one episode of vertigo during service. King at 21. The Board also finds that the second prong for finding the veteran's claim well grounded has been fulfilled, as there is a current medical diagnosis of vertigo. However, as there is no medical evidence linking his vertigo to a disease or injury sustained during service, the Board cannot find the veteran's claim well grounded. One examiner in early June 1997 made a tentative association of the vertigo with the hearing impairment in the left ear, but he admittedly was uncertain about it and referred the veteran to a specialist for a more authoritative opinion. His opinion, therefore, cannot be relied upon without some additional support to serve as a basis for holding that vertigo is associated with tinnitus or impaired hearing. Indeed, the later June 1997 VA audiological-ear disease examination report stated that the vertigo was of unknown etiology. The specialist entered a separate diagnostic assessment. The problem then with the veteran's claim is that there is no probative medical evidence linking vertigo with the veteran's tinnitus or impaired hearing. Additionally, as there is no medical evidence that the veteran complained of, was treated for, or was diagnosed with, vertigo between the time he was discharged from service and May 1997, there is no basis for finding the claim well grounded pursuant to the chronicity provisions of 38 C.F.R. § 3.303(b), or by way of continuity of symptomatology under Savage. In support of his claim for service connection for vertigo, the veteran has presented hearing testimony and written contentions. However, as a matter of law, these statements do not satisfy the medical diagnosis or medical nexus requirements and cannot, therefore, render his claim well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In other words, what is needed is medical evidence showing that the veteran's vertigo is related to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to render his claim well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69 (1995). III. Service connection for a lumbar spine disability The veteran contends that because of an injury he incurred to his low back in service, his lumbar spine was sufficiently weakened to result in the lumbar spine fracture he sustained subsequent to service. A June 1997 VA neurological examination report stated that the veteran complained of low back pain, which has persisted since service, and has more recently been accompanied by pain radiation and numbness down the right leg. The diagnosis was low back pain with radiation of pain and numbness in the right leg. Review by the examiner of contemporaneous X-rays of the lumbar spine was noted. This X-ray report revealed superior healed endplate fractures of L2, L3, and, to a lesser extent, L5. This was noted to be a major abnormality. A July 1997 VA radiology report revealed that there was a central compression deformity of the superior endplates of L2 and L3, but there were no posterior disc bulges. VA treatment records in December 1997, January 1998, and September 1998 noted the veteran's complaints of chronic low back pain and the veteran's history of a post-service fracture of the lumbar spine. The relevant assessments were reported to be low back pain. Although there are no SMRs to show that the veteran suffered from a lumbar spine injury in service, for the purposes of determining whether the his claim is well grounded, the Board accepts as true the veteran's statements that he did have at a low back injury during service. King at 21. The Board also finds that the second step for finding the veteran's claim well grounded has been fulfilled, as there is a current medical diagnosis of a lumbar spine disability. However, as there is no medical evidence linking his lumbar spine disability to a disease or injury sustained during service, the Board cannot find the veteran's claim well grounded. Indeed, none of the medical evidence suggests either a direct nexus between his lumbar spine disability and service, or, as contended by the veteran, that his post-service lumbar spine fracture was caused by a previous in-service injury to the lumbar spine. Additionally, aside from the fact that the veteran suffered a lumbar spine disability since separation from service, there is no medical evidence that the veteran complained of, or was treated for, his lumbar spine disability between the time he was discharged from service and June 1997. Thus, there is no basis for finding the claim well grounded pursuant to the chronicity provisions of 38 C.F.R. § 3.303(b), or by way of continuity of symptomatology under Savage. In support of his claim for service connection for a lumbar spine disability, the veteran has presented hearing testimony and written contentions. However, as a matter of law, these statements do not satisfy the medical diagnosis or medical nexus requirements and cannot, therefore, render his claim well grounded. See Espiritu at 494-95 (holding that laypersons are not competent to offer medical opinions). In other words, what is needed is medical evidence showing that the veteran's lumbar spine disability is related to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to render his claim well grounded. 38 U.S.C.A. § 5107(a); Robinette at 69 (1995). ORDER Entitlement to service connection for bilateral hearing loss is granted, subject to the laws and regulations governing monetary awards. Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing monetary awards. A well-grounded claim not having been submitted, service connection for vertigo is denied. A well-grounded claim not having been submitted, service connection for a lumbar spine disability is denied. BRUCE KANNEE Member, Board of Veterans' Appeals