Citation Nr: 0000988 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-29 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Evaluation of left ear hearing loss, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from November 28, 1985, to October 31, 1994. He also had 11 years, 1 month, and 25 days of active service prior to November 28, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision by the RO that, among other things, denied a claim of entitlement to service connection for right ear hearing loss. The RO also granted a claim of entitlement to service connection for left ear hearing loss and assigned a noncompensable evaluation, effective from the day following the veteran's separation from service. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) recently held that an appeal from an original award does not raise the question of entitlement to an increased rating, but instead is an appeal of an original rating. Fenderson v. West, 12 Vet. App. 119 (1999). Consequently, the Board has characterized the rating issue on appeal as a claim for a higher evaluation of an original award. (The issue of an evaluation of service-connected left ear hearing loss will be addressed in the REMAND that follows the decision below.) FINDING OF FACT No competent medical evidence has been presented to show that the veteran currently has a right ear hearing loss disability by VA standards. CONCLUSION OF LAW The claim of service connection for right ear hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). 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 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The Court has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. For the purposes of applying the laws as administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those 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). The veteran claims that his right ear hearing loss is the result of exposure to acoustic trauma from the many rounds he fired as an artillery man in service. Nevertheless, in the present case, the Board finds that the veteran's claim of service connection for right ear hearing loss is not well grounded. No competent medical evidence has been presented to show that he currently has a right ear hearing loss disability as defined by VA standards. The veteran's service records indicate that his military occupational specialty was a field artillery cannoneer. His service medical records include a July 1974 enlistment examination, when audiometry revealed puretone thresholds of 5 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz. In July 1975, audiometry revealed puretone thresholds of 5, 5, 0, 0, and 0 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. A May 1978 reenlistment examination report shows that audiometry revealed puretone thresholds of 10, 10, 5, 5, and 5 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. In March 1988, audiometry revealed puretone thresholds of 5, 10, 10, 5, and 20 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. In January 1993, audiometry revealed puretone thresholds of 20, 5, 0, 5, and 25 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. In February 1994, audiometry revealed puretone thresholds of 0, 10, 10, 10, and 25 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. A June 1994 retirement examination report shows that audiometry revealed puretone thresholds of 0, 5, 0, 5, and 10 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. At a May 1995 VA audiological evaluation, puretone thresholds were 10, 10, 15, and 30 decibels in the right ear at 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition ability of 100 percent in the right ear was noted. The examiner noted that the right ear showed normal sensitivity for puretones at all frequencies except for very mild impairment at 4000 Hz and moderate impairment at 8000 Hz. At an April 1997 VA audiological evaluation, puretone thresholds were 10, 10, 10, and 35 decibels in the right ear at 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition ability of 94 percent in the right ear was noted. The examiner noted that right ear hearing was normal from 250 Hz through 3000 Hz with a mild to moderate sensorineural hearing loss from 4000 Hz through 8000 Hz. The veteran's service medical records reflect that his right ear hearing was normal in July 1974. The records show that he began to have elevated puretone thresholds in the right ear, beginning in January 1993, when audiometry revealed a puretone threshold of 25 decibels at 4000 Hz in his right ear. In February 1994, audiometry also revealed a puretone threshold of 25 decibels at 4000 Hz in the right ear. The Court has held that hearing impairment is deemed present when an auditory threshold is greater than 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Nevertheless, the Board notes that, although increased thresholds in the veteran's right ear were noted in service in January 1993 and February 1994 showing right ear hearing impairment, none of the examination reports of record shows that the veteran met the requirements of 38 C.F.R. § 3.385. VA audiological evaluations, conducted in May 1995 and, most recently in April 1997, show that the veteran's right ear hearing also does not meet the criteria set forth in 38 C.F.R. § 3.385, i.e., he does not have a right ear hearing loss disability by VA standards. The Board has taken into consideration the veteran's written statements and testimony regarding his right ear hearing loss problems, but no current finding of hearing loss as set forth in 38 C.F.R. § 3.385 has been provided by one competent to do so. In short, while the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, he has not been shown competent to conclude that he has a right ear hearing loss disability by VA standards. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Consequently, absent the presentation of competent medical evidence of current disability, the veteran's claim may not be considered well grounded and must be denied. The Board also notes that it has been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. Morton v. West, 12 Vet. App. 477 (1999). In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that he is aware of evidence which would render his claim well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for right ear hearing loss is denied. REMAND During the course of the veteran's appeal, the criteria for evaluating hearing impairment were revised. The new criteria have been in effect since June 10, 1999. 62 Fed. Reg. 25,202-25,210 (May 11, 1999). According to the Court, when a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should be applied unless Congress and/or the VA Secretary provide otherwise. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Because Congress or the Secretary has not provided otherwise in this particular instance, the Board concludes that the veteran should be afforded the opportunity to have his claim reviewed under the most favorable version of the applicable rating criteria. The Court has also held that, when the Board proposes to address in its decision a question that has not yet been specifically addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case (SOC) fulfills the regulatory requirements. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded to the RO to avoid prejudice to the claimant. The veteran in this case has not yet been notified of the change in applicable law. Because he has not had an opportunity to present evidence and/or argument on the application of the new rating criteria, and because the SOC and supplemental statement of the case (SSOC) issued to him did not contain a summary of the new criteria, with appropriate citations, and a discussion of whether the new criteria affect his claim, the Board will remand the claim to avoid the possibility of prejudice. 38 C.F.R. §§ 3.327, 4.2, 19.9 (1999). Accordingly, the case is REMANDED to the RO for the following: 1. The RO should ask the veteran to provide information regarding any evidence of recent treatment for service- connected left ear hearing loss that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). 2. The RO should then schedule the veteran for a VA audiological examination to assess the current severity of his service-connected left ear hearing loss. The RO should provide the examiner with a copy of the old and new rating criteria for evaluating hearing impairment, and findings should be made so that both the old and the new rating criteria may be applied. The claims folder, with any evidence obtained pursuant to the request above, must be reviewed by the examiner in conjunction with the examination. 3. The RO should then re-adjudicate the claim based on both the old and new criteria for rating hearing impairment, with application of those criteria that are more favorable to the veteran. If the benefit sought is denied, a SSOC should be issued, which includes a reference to the new rating criteria for hearing loss. If the veteran does not appear for an examination, without good cause, the SSOC should include reference to the provisions of 38 C.F.R. § 3.655 (1999). After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals