Citation Nr: 0000441 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-33 815A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to January 1946. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought. The veteran subsequently filed a timely appeal. By a Remand decision of August 1998, the Board referred the case back to the RO for additional development. The requested development having been completed, the case is once again before the Board for additional review. The action also included referral to the RO of consideration of the issue of service connection for tinnitus. The RO considered and denied this issue in November 1998. The veteran was advised by letter in December 1998, it is not shown that he submitted a notice of disagreement and the issue was not developed for appellate review. Initially, the Board notes that in April 1999, the case was remanded back to the RO for further development, but it is unclear whether the RO actually received a copy of the Remand order. Specifically, the RO was directed to consider evidence received since December 1997, and to include that evidence in its consideration of the veteran's claim for service connection for bilateral hearing loss. The Board observes, however, that in a rating decision and a supplemental statement of the case, both dated in November 1998, following the Board's August 1998 remand, the RO had considered the evidence referred to in the April 1999 Remand, making the April 1999 Remand unnecessary. There is also a January 1999 notation from the veteran's representative indicating that the Statement of the Accredited Representative VA Form 646 of June 1998 would suffice. In any event, the United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998), held, in substance, that an RO is required to comply with the directives of remand decisions issued by the Board. However, inasmuch as the RO had already complied with the Board's directives contained in the April 1999 Remand order, prior to its issuance, the Board finds that it is not necessary to refer the case back to the RO for additional development which would be redundant and unnecessarily time consuming. Further, the Board observes that in Roberts v. West, No 97- 1993 (U.S. Vet. App. Nov. 19, 1999), the Court distinguished the facts of that case from Stegall, holding that Stegall involved a situation in which an increased rating for a service-connected disability was being sought, and that Stegall applied where the well groundedness of a claim had already been established. In Roberts, the Court held that where claims were not well grounded, the Secretary had no duty to assist the claimant in developing his claim. For that reason, the Court found that additional action by the Board to enforce its remand order was not required under Stegall. Accordingly, the Board finds that in the absence of a well-grounded claim, there is no requirement to enforce its April 1999 Remand order. The Board will now proceed with its review of the veteran's claim. FINDINGS OF FACT There is no competent medical evidence of a nexus or link between the veteran's diagnosed bilateral hearing loss and any incident of his active service. CONCLUSION OF LAW The veteran's claim for service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that service connection may be granted for a disability resulting from a disease or injury that was incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). In addition, where a veteran served on active duty for 90 days or more, and an organic disease of the central nervous system, including sensorineural hearing loss, is manifested to a degree of 10 percent or more within one year from the date of separation from service, such disease may be presumed to have been incurred in service, even though there is no evidence of such disease in service. See 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.385 (1998). The threshold question which must be answered is whether the veteran has submitted a well-grounded claim for service connection. 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." See 38 U.S.C.A. § 5107(a) (West 1991); Robinette v Brown, 8 Vet. App. 69, 73 (1995). 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]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of a well-grounded claim, there is no duty to assist the veteran in developing facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464 (1997); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1995) (en banc). To establish that a claim for service connection is well grounded, the claimant must satisfy three elements. First, there must be evidence of an incurrence or aggravation of an injury or disease in service. Second, there must be evidence of a nexus or link between the in-service injury or disease and the current disability, as shown through the medical evidence. See Epps, supra. Lay or medical evidence, as appropriate, may be used to substantiate the service incurrence. See Caluza v. Brown, 6 Vet. App. 489, 507 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Alternatively, a claim may be well grounded based on the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1998). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The veteran currently maintains that he sustained bilateral hearing loss as a result of exposure to acoustic trauma in the Pacific Theater of Operations during World War II. He has indicated that upon seeing a military physician in the Philippines, he was directed to place a canteen filled with warm water wrapped in a towel against his head. In support of this assertion, the veteran submitted an undated signed affidavit from [redacted] who claims that he recalled that the veteran had a towel-wrapped canteen held against his ear for reasons unknown. The veteran's service medical records and service separation physical examination report show that his hearing was 15/15 bilaterally. In further support of his claim, the veteran submitted VA clinical treatment records dating from December 1996 to June 1998 indicating that he had been seen for complaints of bilateral hearing loss and tinnitus during this period. A report of a VA audiometric examination dated in April 1997 shows that the veteran had a bilateral hearing disability within the meaning of 38 C.F.R. § 3.385 (1998). However, aside from noting the veteran's self-reported history of exposure to acoustic trauma during service, the examination records do not contain any medical opinion that his bilateral hearing loss was etiologically related to his active service, to include exposure to acoustic trauma therein. The Board has evaluated the evidence as discussed above, and concludes that the veteran has not submitted evidence of a well-grounded claim for service connection for bilateral hearing loss. The Board recognizes that the veteran was likely exposed to acoustic trauma during his active service in World War II, and that he was seen for a hearing problem on one occasion, based on his account of such treatment and the supporting affidavit from Mr. [redacted]. However, he has not submitted any medical evidence of a nexus or link between his bilateral hearing loss and any incident of his active service. His service medical records, including the report of his service separation examination show that his hearing was 15/15 bilaterally, and the first record of treatment following service, dated in April 1997, only shows the existence of a present disability. The treatment records fail to disclose that the veteran's bilateral hearing loss was incurred in service. In addition, the veteran has failed to submit any evidence showing continuity of symptomatology following his discharge from service. See Savage, supra. In addition, lay statements by the veteran that he incurred bilateral hearing loss in service do not constitute medical evidence. As a lay person, lacking in medical training and expertise, the veteran is not competent to address an issue requiring an expert medical opinion, to include medical diagnoses and opinions as to medical etiology. See Moray v. Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). What is missing in the present case is an opinion from a medical professional, such as a treating or examining physician, that the veteran's diagnosed bilateral hearing loss is consistent with the acoustic trauma he had experienced in service. Absent such an opinion, his claim is not well grounded, and must be denied on that basis. For the above reasons, it is the decision of the Board that the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection for the his bilateral hearing loss. The Board has not been made aware of any additional evidence which is available which could serve to well ground the veteran's claim. As the duty to assist is not triggered here by a well-grounded claim, the Board finds that the VA has no obligation to further develop the veteran's claim. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, supra; Grivois v. Brown, 6 Vet. App. 136 (1994). The Board also views its discussion and that provided by the RO in the statement of the case and supplemental statement of the case as sufficient to inform the veteran of the evidence necessary to complete a claim for service connection for bilateral hearing loss. See Robinette, supra. ORDER Evidence of a well-grounded claim not having been submitted, service connection for bilateral hearing loss is denied. STEVEN L. COHN Member, Board of Veterans' Appeals