Citation Nr: 0006842 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-03 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss and tinnitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty from July 1952 to June 1956. These matters come to the Board of Veterans' Appeals (Board) from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to service connection for hearing loss and tinnitus. The veteran perfected an appeal of the November 1996 decision. FINDING OF FACT The claim of entitlement to service connection for hearing loss and tinnitus is not supported by competent medical evidence showing that the disorders had their onset during service or the one-year presumptive period following service, or that any current bilateral hearing loss or tinnitus is related to an in-service disease or injury. CONCLUSION OF LAW The claim of entitlement to service connection for hearing loss and tinnitus is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background A May 1956 report of medical examination indicated that the veteran had normal hearing upon discharge from the service. Although the RO made numerous requests to the National Personnel Records Center (NPRC) to obtain all of the veteran's service medical records, no other records could be located and they are presumed to have been destroyed in the fire at that facility in 1973. In June 1996, the veteran was treated at a VA Medical Center (MC) for complaints of ringing in the ears. The veteran initially claimed entitlement to VA disability compensation in July 1996, at which time he indicated that he had hearing loss as the result of service. During an October 1996 VA examination, the veteran underwent an audiometric examination which revealed audiological findings, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 50 55 75 LEFT 15 35 55 65 90 The veteran's speech recognition scores were 88 percent in the right ear and 76 percent in the left ear. It was noted that the veteran had mild to profound sensorineural hearing loss bilaterally from one thousand to eight thousand hertz. The veteran's speech discrimination scores were good bilaterally. The veteran also had complaints of tinnitus in both ears. An April 1997 VAMC treatment report indicated that the veteran was suffering from bilateral hearing loss, however, tinnitus was not present. In November 1997 the RO sent a letter to a private hospital requesting medical records. As of this date no reply has been received. In November 1997 the RO received a response from a private medical center stating that the medical records requested had been destroyed. During a January 1998 VA examination, the veteran complained of difficulty understanding speech, particularly when background noise is present. The veteran also reported that while in service he experienced brief episodes of tinnitus but it was not until about six or seven years ago that he began having constant tinnitus. The veteran described the tinnitus as a hissing sound, similar to listening to a seashell or hundreds of crickets. He stated that the noise was constant and it interfered with his ability to understand speech. During a January 1998 VA examination, the veteran underwent an audiometric examination which revealed audiological findings, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 50 65 70 LEFT 20 35 60 65 80 The veteran's speech recognition scores were 78 percent in the right ear and 84 percent in the left ear. Speech discrimination was good bilaterally and there were no air bone gaps. The diagnosis was bilateral symmetric high- frequency severe sensorineural hearing loss with some reduction in speech discrimination ability for both ears. The VA examiner concluded that the veteran's hearing loss and tinnitus were not related to service. During a January 1998 personal hearing the veteran stated that his hearing loss had been gradual. He also explained that while in Korea he served in an active combat zone. The veteran stated that he was in the military police and his duties included guarding aircrafts and walking the flight lines. According to him, he was exposed to nightly bombings and he would walk the flight lines with aircraft passing overhead. The veteran stated that while performing his duties he did not have access to protective headgear in order to minimize exposure to loud noises. He further stated that after the nightly bombings he would experience temporary hearing loss. The veteran also stated that his tinnitus began while he was in the service. He explained that while in the service his episodes of tinnitus were temporary, but now they were constant. According to the veteran, he began having trouble with his tinnitus four to five years ago. The veteran stated that since service he has not worked in areas of significant noise exposure and he does not have any hobbies that involve loud noise. The veteran also stated that a VA physician told him that his hearing loss and tinnitus were related to service. In a December 1999 statement, the veteran withdrew his request for a personal or video hearing before a member of the Board of Veterans' Appeals. II. Laws and Regulations Under the law, service connection can be granted for any disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110 (West 1991). Service connection can also be granted for organic diseases of the nervous system, including sensorineural hearing loss, if they become manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. § 1112(a)(1) (West 1991); 38 C.F.R. § 3.309(a) (1999). The United States Court of Veterans Appeals (Court) has held that a claimant may establish direct service connection for hearing loss if evidence shows that a hearing loss is causally related to an injury or disease incurred during active service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). A hearing loss disability for the purpose of applying the laws administered by the VA is defined in the provisions of 38 C.F.R. § 3.385 (1999). Impaired 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. 38 C.F.R. § 3.385 (1999). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304 (1999). The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well- grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service or the applicable presumptive period, and medical evidence of a nexus between the in- service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post-service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and post- service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence maybe sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). If the veteran fails to submit evidence showing that his claim is well grounded, VA is under no duty to assist him in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not indicated the existence of any evidence that, if obtained, would make his claim well grounded. The Board notes that, regardless of numerous attempts to obtain the veteran's service medical records, none could be located. If the service medical records cannot be located, VA has a heightened duty to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The veteran reported receiving treatment at a private hospital and medical center. The RO requested these records, however, no reply was received from the private hospital and the records from the private medical center were destroyed. VA has no further obligation, therefore, to notify him of the evidence needed to support his claim. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). III. Analysis The veteran contends that he has hearing loss and tinnitus as the result of noise exposure in service. The results of a January 1998 audiogram indicate that the veteran has a hearing loss disability as defined in 38 C.F.R. § 3.385. During the January 1998 VA examination, it was also noted that the veteran has tinnitus. The first Caluza element has been satisfied because there is a current medical diagnosis of disability. Although the medical evidence shows that he has a hearing disability, that evidence does not suggest that the current disability is related to an in-service disease or injury. The veteran's May 1956 separation examination indicated that at the time of his discharge the veteran had normal hearing. Furthermore, though it is not readily apparent from the available record that the appellant is a combat veteran, the Board will assume, without conceding that he is. 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected; it does, however, considerably lighten the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service. Wade v. West, 11 Vet.App. at 304 (quoting Collette, 82 F.3d at 392). Because section 1154(b) does not obviate the other two Caluza requirements, a combat veteran who uses lay testimony to show incurrence or aggravation must nevertheless generally proffer medical evidence to establish a current disability and its nexus to service because "lay persons are not competent to offer medical opinions". Grottveit, 5 Vet.App. at 93; see also Meyer v. Brown, 9 Vet.App. 425, 429 (1996); Grivois, 6 Vet.App. at 140; Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The veteran has stated that his present hearing loss and tinnitus are the result of noise exposure in service, but his statements are not probative because he is not competent to provide evidence that requires specialized medical knowledge. Grottveit, 5 Vet. App. at 93; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). During a January 1998 VA examination, it was noted that the veteran's hearing loss and tinnitus were not related to service. The veteran has not submitted competent evidence of an etiological relationship between his hearing loss and tinnitus to service, and the Board finds that he has not met his initial burden of presenting evidence of a well-grounded claim. Furthermore, there is no clinical evidence of continuity of symptomatology of hearing loss and tinnitus from service to current findings of hearing loss pathology. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(a). The Board recognizes that the Court has held that there is some duty to assist the veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where his claim appears to be not well- grounded where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1966); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1966). The facts and circumstances of this case are such that no further action is warranted. ORDER The claim of entitlement to service connection for hearing loss and tinnitus is denied. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals