Citation Nr: 0000698 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-13 764A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of a left ankle fracture. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from January 1945 to October 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. FINDING OF FACT The claims of entitlement to service connection for residuals of a left ankle fracture, hearing loss and tinnitus are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims of entitlement to service connection for residuals of a left ankle fracture, hearing loss and tinnitus are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records at enlistment show no musculoskeletal defects or abnormality of the ears. Upon examination at the time of discharge in October 1946 it was reported that the veteran was hospitalized for treatment of a left heel injury. It was also reported that there were no musculoskeletal defects. The veteran's feet were non-symptomatic, non-disabling and no abnormalities were noted. There were no abnormalities of his ears. The service medical records are devoid of any evidence of a fracture of the left ankle. In October 1946 the veteran filed, inter alia, a claim for service connection for a left heel injury. The RO denied the claim in December 1947 because the evidence of record as claimed by the veteran did not show a left heel injury. This decision was not appealed. In an August 1993 statement, the veteran noted that his loss of hearing in both ears and tinnitus started six months after discharge. He stated that while he was stationed at Camp Blanding, Florida in January 1945, a booby-trap explosion went off and he had ringing in his ears immediately thereafter. He further indicated that he received no treatment. In a December 1993 statement the veteran reported that he was a volunteer trainee with the 508th 82nd Airborne in Frankfurt, Germany when he jumped and landed on a sugar beet and broke his heel bone. He was taken to the Army Luftwoffe Hospital in Frankfurt where an X-ray affirmed the fracture and his leg was placed in a cast. He further stated that he received treatment for his heel from 1949 to 1953 and in 1966. In October 1997 the veteran underwent a VA examination for systemic conditions. Examination of the ears revealed that the tympanic membranes were bilaterally clear. It was noted that there was no evidence of deformity at the left heel or edema present in that region. It was also revealed that the veteran was wearing support stockings. There was no evidence of any abnormality of the left ankle. In November 1997 the veteran filed a claim, in pertinent part, for bilateral hearing loss, bilateral tinnitus and a broken left ankle. He stated in a January 1998 statement that his foot hurts in cold weather. He also stated that he was first treated for his ears in Fresno, around June 1987. In an October 1998 statement, the veteran reported that when he injured his foot and leg he was taken by ambulance to the hospital where the doctor told him not to jump for at least ten days to two weeks; afterwards, he could resume jumping. He further stated that at that same time another man was injured and there were two men who witnessed the accidents. He provided the names of the two men who, according to the veteran, "might help." Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that 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 § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "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." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the appellant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims of entitlement to service connection for residuals of a left ankle fracture, hearing loss and tinnitus must be denied as not well grounded. The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. Residuals of a Left Ankle Fracture Service medical records at separation show the veteran injured his left heel during service. However, at the time of discharge, in October 1946, the veteran had no musculoskeletal defects, he was asymptomatic and the injury was noted as non-disabling. A fracture of the left ankle was not reported in the service medical records. Post-service medical records in the file consist of the October 1997 VA examination which shows no evidence of residuals of a fracture of the left ankle. The veteran has failed to provide medical evidence that he sustained a fracture of the left ankle in service and has residuals thereof. Therefore, his claim must be denied as not well grounded. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (holding that veteran was not entitled to service connection where there was a total lack of evidence of any hypertension existing since service). There is no competent medical evidence of a current diagnosis of any residuals of a left ankle fracture. The veteran's statement in the record that his foot hurts in cold weather is not sufficient to render his claim plausible. Where, as here, the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible or possible is required. See Heuer, supra. The veteran has failed to submit records of alleged treatment for a left ankle fracture from 1949 to 1953 and in 1966. Even if such treatment records were available, they are not probative of the issue at hand because such records would not indicate treatment for residuals of a left ankle fracture and related symptoms within a year of the veteran's separation from service. Thus, there is no competent medical evidence of the veteran's alleged left ankle fracture and continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). The veteran proffered the names of two witnesses who allegedly saw the accident that resulted in the claimed injury to his left ankle. Statements of these individuals are not present in the claims file. However, the Board finds that the absence of such records do not prejudice the veteran in this instance because the presence of such records would not help to provide evidence of a current left ankle disability or evidence of a nexus between a current disability and service, which is what is needed for the veteran to well-ground his claim of service connection for residuals of a left ankle fracture. See 38 U.S.C.A. § 7261(b) (West 1991). Because the veteran has failed to provide competent evidence of a nexus between a current left ankle disability and military service, the Board finds that his claim of entitlement to service connection for residuals of a left ankle fracture must be denied as not well grounded. Hearing Loss and Tinnitus Service medical records show no diagnosis or treatment for hearing loss or tinnitus. Service connection may be granted for any disease diagnosed after discharge when the evidence established that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, no post-service medical records have been presented to support a claim that there has been a disability from hearing loss or tinnitus. The veteran's account of the etiology of a hearing loss disability in service is not sufficient to well ground his claim. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Moreover, the presumptive period under 38 C.F.R. § 3.307 is inapplicable in this instance because more that forty years have passed since the veteran was discharged from service and when he allegedly received treatment for his ears. The veteran proffered evidence that he was first treated for his ears sometime around June 1987. No record of any such treatment has been presented. Even if such post-service records were available, the probative value of the evidence is negligible, and therefore, would not well ground the claim. See Tirpak, supra. The veteran has failed to provide medical evidence that he has current hearing loss and tinnitus disabilities. Consequently, the Board finds that his claims of entitlement to service connection for hearing loss and tinnitus must be denied as not well grounded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board further finds that the RO has advised the veteran of the evidence necessary to establish well grounded claims, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claims. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran's claims for service connection for residuals of a left ankle fracture, hearing loss and tinnitus are not well grounded, the doctrine of reasonable doubt has no application to his case. ORDER The veteran, not having submitted well grounded claims of entitlement to service connection for residuals of a left ankle fracture, hearing loss and tinnitus, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals