Citation Nr: 0007388 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-06 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a chronic neck disability with degenerative joint disease (DJD). 2. Entitlement to service connection for a hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1976 and January 1979. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Although additional VA treatment records dated from 1997 through 1999 were added to the claims file subsequent to the last supplemental statement of the case, the Board finds the information received is redundant and not pertinent to the claim. Therefore, a remand for RO consideration of these records is not warranted. See 38 C.F.R. § 20.1304(c) (1999). FINDINGS OF FACT 1. The claim for service connection for a chronic neck disability with DJD is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim for service connection for hearing loss is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim for service connection for a chronic neck disability with DJD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A review of the service medical records (SMRs) reveals one entry involving the neck. On July 17, 1978, the veteran was seen for a complaint of muscle pain on the right side of the neck, a knot in the right shoulder area and asymmetry of the shoulders. He reported the pain was worse when he was in formation or on stenosis activity. The pain reportedly had been getting worse for one year. The examiner noted asymmetry of the shoulders. X-rays of the shoulder were interpreted as normal, and the assessment on examination was of a possible muscle spasm of the right trapezius. No additional complaints involving the neck were reported during service, to include upon December 1978 separation examination. The SMRs are also negative for hearing loss complaints. Audiometric testing at service entrance and at service separation was normal. Specifically, pure tone thresholds in decibels upon audiometric testing in December 1975 were as follows. HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 10 10 LEFT 20 10 10 10 15 At time of service separation, pure tone thresholds in decibels upon audiometric testing in October 1978 were as follows. HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 20 LEFT 15 10 10 20 Post service medical records show that in June 1982 the veteran complained of neck pain. Objectively, there was abnormal cervical lordosis. The assessment was neck pain secondary to biomechanical factor. When seen in August 1982, the veteran gave a history of dull, aching neck pain for years without trauma. X-rays at the time were interpreted as showing cervical spine lordosis. Assessment was muscle spasm, right trapezius, secondary to cervical alignment. July 1995 outpatient records reflect statements of medical history of "on and off" neck pain since 1970, a 20 year history of "off and on" neck pain and a 15 year history of neck pain. Impressions included chronic neck pain by history, chronic neck pain, rule out fibromyalgia, rule out chronic trapezious spasms. X-rays found osteophytes in the cervical spine and degenerative disc disease at C6-7. There were complaints regarding the right arm, but sensory nerve conduction studies found a mild ulnar neuropathy at the elbow but no evidence of a radiculopathy. An MRI in August 1995 showed degenerative changes of the cervical spine, moderate canal stenosis at C6-C7, along with severe right neural foraminal narrowing and moderate to severe left neural foraminal narrowing; mild right neural foraminal narrowing at C5-C6 without evidence of canal stenosis; increased signal consistent with degenerative change in endplate C6-C7. Outpatient records in 1996 show statements of medical history of "many years" of neck pain, and of neck pain since 1976. In a December 1996 statement, the veteran indicated that had x-rays been taken of his neck in 1978, they would have disclosed the abnormal cervical lordosis identified on the 1982 x-rays. He further reported that his asymmetrical hearing loss was due to an incident at Ft. Polk where he fired weapons without earplugs. VA records from October 1997 reflect that the veteran underwent a C6-7 foraminotomy. Subsequently dated clinical documents reveal, however, that there was little relief of his complaints of neck pain. Post service VA records reflect that the veteran underwent audiometric testing in September 1996. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 50 65 60 LEFT 25 25 20 40 40 Speech audiometry revealed speech recognition ability of 92 percent in each ear. In February 1997, the RO requested a medical opinion as to a neck disability. The RO pointed out that the SMRs contained only a single reference to neck problems in July 1978 and that the veteran currently had cervical DJD and cervical stenosis. The examiner was requested to review the record and render an opinion as to whether it was at least as likely as not that the veteran's present neck disability was related to inservice complaints in 1978. The examiner's medical conclusion was that the evidence showed that cervical degenerative disease was first demonstrated approximately 16 years after discharge from service. In his opinion, cervical degenerative disease was not present in service or within a year of separation from service, and that there was no medical basis to conclude that the veteran's presently demonstrated neck disability was in any way related to complaints during service. A June 1998 VA psychiatric examination report includes a recorded history from the claimant that he had experienced chronic neck pain since separation from service. An October 1997 outpatient record lists medical history as including hearing loss due to military noise exposure; February and July 1998 VA outpatient treatment records contain a list of the veteran's medical history including a notation of "deafness: secondary to noise in military." At a personal hearing in November 1999, the veteran testified in support of his contentions. He associated his hearing loss with noise exposure during service. Hearing [Hrg.] Transcript [Tr.] at 4. He recalled occasional hearing losses during service when he was on maneuvers or on the firing range. Tr. at 5. He also pointed out that his post service history had not included any significant additional exposure to noise. Tr. at 6. As to his neck disability, the veteran recalled that his shoulder was X-rayed during service and not his neck. Tr. at 10. The medical personnel dismissed him and nothing was done to relieve his complaints that continued from that date ultimately resulting in surgery. Tr. at 10. At the hearing, the veteran showed his shoulder to the Board member conducting the hearing. It was noted that the left portion muscle of the shoulder as it connected to the neck was more pliable that the right. Tr. at 11. It was also noted that the take-off area where the flesh came up to the neck from the shoulder of the right side was higher than it was on the left. Tr. at 12. The representative added that the medical opinion of record that did not support the veteran's contentions as to this issue was inadequate in that the opinion was offered without examination of the veteran and based only on a review of the claims file. Tr. at 14. Law and Regulations The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). 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)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are 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." 38 U.S.C.A. § 5107(a); 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further 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." Grottveit, 5 Vet. App. at 93. The basic framework of the law and regulations provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). For a showing of 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). In the case of DJD and sensorineural hearing loss (an organic disease of the central nervous system), service incurence may be presumed if the disease is manifested to a compensable degree within one year of service. 38 U.S.C.A. § 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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). Analysis A Chronic Neck Disability In the instant case, the veteran has submitted evidence of a current neck disability with DJD. The incurrence of neck complaints at one point during service is clear, but no chronic neck disability was diagnosed at that time nor reported subsequently, to include at time of service separation. The earliest post service record reflecting neck complaints was in 1982 and at that time the veteran reported no history of trauma. Subsequently dated records in 1982 do refer to neck pain of years duration, but the medical records dated through 1999 do not include any opinion that the current chronic neck disability identified post service is the result of any disease or injury incurred or aggravated in service. As the determinative issue in this case involves medical causation, there must be competent medical evidence of a nexus between disease or injury incurred or aggravated in service and the current disability. This requirement has not been met here, as the medical evidence of record does not support the allegations of causation asserted by the veteran. Specifically, the Board notes that the claims file was reviewed by a medical examiner in 1997 who determined that current neck disability was not of service origin and that DJD was not present within the presumptive period thereafter. The Board has considered the contention that this opinion is inadequate to address the current claim because it was not based on direct examination of the claimant, but concludes that the examiner's opinion is supported by the findings on the clinical reports that contain sufficient detail to make a determination in this case. Moreover, the pertinent question was not the existence of current disability, but the likelihood that the current disability was related to disease or injury incurred or aggravated in service. The Board has considered the veteran's assertions that he has a disability of service origin. While he is competent to report manifestations of a disorder perceptible to a lay party, such as pain, he is not competent to link those manifestations to a disability that itself is not perceptible to lay observation. Espiritu, supra. As the current neck disability, identified as cervical DJD and stenosis, involves the internal structures of the neck it is not itself subject to lay observation. Accordingly, a lay party, the veteran is not competent to link manifestations perceptible to a lay party to the underlying disability now recognized because the underlying disability is not perceptible to lay observation. Thus, he can not well ground his claim on the basis of continuity of symptomatology. Savage, supra. In this context, the Board must point out that the visual asymmetry of the shoulders the veteran displayed is not itself shown to be diagnosed as productive of disability. Thus, the asymmetry is not subject to service connection because it is not demonstrated to result in disability. Finally, the mere transcription of statements of medical history in the record, not enhanced by medical expertise, does not rise to the level of a medical opinion as to a nexus between service and current disability. LeShore v. Brown, 8 Vet. App. 406 (1995). In this case, there are a number of conflicting statements of medical history scattered through the record indicating the veteran's neck pain began before, during or after service. The Board finds that none of these actually rises above the level of transcription of medical history. The Board will also rule in the alternative under the authority of Holbrook v. Brown, 8 Vet. App. 91 (1995). Even if the Board concluded that the claim was well grounded the result would not change. The RO has discharged the duty to assist, to include obtaining a medical opinion directly on the question of whether the current disability is related to service. This opinion, based upon a complete review of the record, was against the claim. None of the other statements of record, even if they could be deemed to provide a link between current disability and service, is shown to have been based upon a review of the full record. Thus, the medical opinion requested in February 1997 is entitled to vastly more probative weight on this critical point that all the other opinions put together. Accordingly the clear weight of the probative evidence is against the claim and the benefit of the doubt doctrine is not for application. Hearing Loss The SMRs are negative for hearing loss. Audiometric testing measures threshold hearing levels in decibels over a range of frequencies in Hertz. The threshold for normal hearing is from 0 to 20 decibels, a higher threshold indicates some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Inasmuch as the veteran's hearing during service at time of entrance and at time of service separation was 20 decibels or lower, no hearing loss was shown. The finding of entirely normal hearing acuity for VA purposes at service separation, followed by audiometric evidence of a hearing loss years later, is grossly inconsistent with the theory of service incurrence of a hearing loss due to noise exposure in service. Godfrey v. Brown, 7 Vet. App. 113, 122-23 (1995) (Where the Court affirmed a decision of the Board that relied upon a medical treatise that stated that the "overwhelming body of opinion" is that the progress of a hearing loss after removal from noise exposure is from some other cause.) It was many years after service before bilateral hearing impairment was demonstrated on VA examination in 1996. He now maintains that this hearing loss is due to inservice noise exposure, but as hearing loss was first shown many years after service, and as the examiner did not link it exposure to loud noise during service, the Board can not conclude that hearing impairment is of service origin. Accordingly, the claim of entitlement to service connection for hearing loss is not well grounded. As before, the Board has considered the assertions that the veteran has a disability of service origin. While he is competent to report manifestations of a disorder perceptible to a lay party, such as pain, he is not competent to link those manifestations to service on medical causation or etiology. Espiritu, supra. ORDER Service connection for a chronic neck disability with DJD is denied. Service connection for hearing loss is denied. Richard B. Frank Member, Board of Veterans' Appeals