Citation NR: 9714065 Decision Date: 04/22/97 Archive Date: 05/01/97 DOCKET NO. 96-21 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for the residuals of burns. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a schizoaffective disorder. ATTORNEY FOR THE BOARD Gregory W. Fortsch, Associate Counsel INTRODUCTION The veteran served on active duty from March 1981 to February 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating actions by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that her tinnitus was noted in service and that a schizoaffective disorder was also present in the military. The veteran claims the ringing in her ears was caused both when a bomb exploded in front of her and she was hit by a missile. The veteran also claims that her schizoaffective disorder started when she “freaked out” during special operations training while on a flight crew. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has failed to submit well-grounded claims for service connection for defective hearing, the residuals of burns, tinnitus, and a schizoaffective disorder. FINDING OF FACT Claims for service connection for defective hearing, residuals of burns, tinnitus, and a schizoaffective disorder are not plausible. CONCLUSION OF LAW The claims for service connection for defective hearing, residuals of burns, tinnitus, and a schizoaffective disorder are not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Law and Regulation Service connection can be granted for any disability resulting from disease or injury incurred in or aggravated during active military service in wartime. 38 U.S.C.A. § 1131 (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) (1996). In a claim to establish service connection, a claimant is obliged to present evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is simply a plausible one, which means that it is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). It has also been determined that a well- grounded claim requires medical evidence of a current disability, competent lay or medical evidence of a disease or injury in service, and medical evidence of a link between current disability and an in-service injury or disease. Caluza v. Brown, 7 Vet.App. 498 (1995). If a claim is not well-grounded, then no duty to assist the claimant attaches to the VA under 38 U.S.C.A. § 5107(a). Sensorineural hearing loss, an organic disease of the nervous system, is a chronic disease by VA regulation. 38 C.F.R. § 3.309 (1996). Continuity of symptomatology is required only 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) (1996). 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 (1996). Once the requirements of 38 C.F.R. § 3.385 have been met, and the veteran has been found to have a present hearing "disability" under the applicable laws and regulations, a determination must be made as to whether the current hearing disorder is related to service. The United States Court of Veterans Appeals (Court) has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet.App. 155, 159-60 (1993). Even if a veteran does not have hearing loss for service connection purposes by the standards of 38 C.F.R. § 3.385 during the time of active duty, this does not prohibit a later allowance of service connection. Service connection may still be established if a veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. Id. at 158. The threshold for normal hearing is 0 to 20 decibels. Id. at 157. Facts Service medical records (SMRs) indicate that the veteran had numerous hearing tests during her time in service. None of these hearing tests, however, showed an auditory threshold above 26 decibels at any frequency. In December 1981, a provisional diagnosis of a tympanic membrane abnormality scar and/or perforation was noted, but hearing was described as “OK”. In January 1982, possible tympanic membrane perforation was again noted, but the veteran’s ears were described as within normal limits. A physical examination was also within normal limits. In April 1982 and March 1984, Valsalva were normal bilaterally, and no significant medical or surgical history since the last physical evaluation was noted. No indication of a schizoaffective disorder or tinnitus is shown in the SMRs. With regard to the claim for residuals of burns, a June 1983 entry shows that the veteran slipped while loading a bomb and it exploded; the veteran apparently singed her hair, according to the record, but no burns to the face or neck occurred. The diagnosis was normal “except for hair,” and her condition upon release was described as good. In April 1984, the veteran walked in to a missile on the flight line and complained of a laceration to the scalp. Sutures were placed in the wound, and the diagnosis was a superficial scalp laceration. An entry dated approximately one week later noted that the wound was healed and sutures had been removed. A May 1986 entry in the records indicated that the veteran was medically qualified for flying duty. A July 1986 examination showed no significant medical or surgical history since the last physical evaluation. In June 1995, the veteran wrote that she would instruct her private health care provider to release only the diagnosis that she was treated for because nothing else would be relevant. An August 1995 statement from a private social worker indicated that the veteran had been diagnosed with and treated for a schizoaffective disorder. The social worker added that the veteran’s psychotherapy and psychiatric evaluation upheld this diagnosis. In October 1995, the veteran failed to report for two separately scheduled VA examinations of which she had been properly notified. A February 1996 statement from a private physician noted that the veteran had a schizoaffective disorder and that medication had been prescribed. A work week limited to 40 hours was recommended. Finally, in her May 1996 substantive appeal, the veteran stated that she did not attend the VA examinations that had been scheduled for October 1995 because she was a transsexual and felt that she would not be decently treated. Analysis The Board concludes that none of the veteran’s claims for service connection are well-grounded. As clearly stated by the Caluza decision, a claim requires a showing of an in- service disability, a current disability, and medical evidence of a nexus between the two. With regard to the claim for service connection for hearing loss, there is no showing of a disability in service or current hearing loss disability within the meaning of the applicable regulation. See 38 C.F.R. § 3.385. There are also no current or in- service findings or diagnoses of tinnitus. While there is evidence in the service medical records supporting the veteran’s injuries by a bomb and missile, the only apparent residuals at the time of each incident were singed hair and a superficial scalp laceration. No residuals of either incident were noted on the last examination the veteran had during service in July 1986. The evidence on file shows that these injuries were acute and transitory and resolved without disabling residual. There is no competent clinical evidence showing chronic residuals of either incident either during or after service. The Caluza requirement of a current disability is not satisfied. Finally, while evidence from years after service in August 1995 first documented a schizoaffective disorder, no evidence shows or even tends to show that this disorder had onset during service or is otherwise in any way related to service. The veteran’s personal opinion that a schizoaffective disorder manifested in service or is otherwise attributable to incidents of service is not competent because the veteran is not shown to have the requisite medical expertise to offer such a medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Although where claims are not well-grounded the VA does not have a statutory duty to assist a claimant in developing facts pertinent to her claim, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete an application. This obligation depends upon the particular facts of the case and the extent to which the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995). While the record shows that the RO diligently attempted to assist the veteran in developing her claims, the veteran did not cooperated with those efforts. She refused to report for VA examinations and refused to authorize release of post- service medical records (except for diagnosis). Should efforts to obtain evidence prove unsuccessful for any reason which the claimant could rectify, the VA shall notify the claimant and advise her that the responsibility for furnishing evidence rests with the claimant. 38 C.F.R. § 3.159(c) (1996). In this case, the RO fulfilled its obligations in its attempts to develop the veteran’s claims, and the Statements of the Case informed the veteran of the reasons for the denial of her claims. Furthermore, by this decision, the Board is informing the veteran of the evidence that is lacking and which is necessary to make her claims well- grounded. Because the veteran has failed to submit competent evidence showing current or in-service hearing loss or tinnitus, current evidence of residuals of burns, in-service evidence of a schizoaffective disorder, or a medical nexus or causal connection between a currently diagnosed schizoaffective disorder and service, the claims for service connection for defective hearing, tinnitus, residuals of burns, and a schizoaffective disorder must be denied as not well-grounded. 38 U.S.C.A. § 5107. ORDER Claims for service connection for defective hearing, residuals of burns, tinnitus, and a schizoaffective disorder are denied. J. JOHNSTON Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -