Citation NR: 9702697 Decision Date: 01/30/97 Archive Date: 02/12/97 DOCKET NO. 95-01 832 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for a bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his friend ATTORNEY FOR THE BOARD Roberto D. DiBella, Associate Counsel INTRODUCTION The veteran had active duty from September 1946 to March 1948. The appeal for entitlement to service connection for post- traumatic stress disorder arises from a December 1993 decision by the RO. The appeal for entitlement to service connection for a bilateral hearing loss arises from a January 1995 decision by the RO. (The issue of entitlement to service connection for post- traumatic stress disorder will be the subject of the remand portion of this document.) CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that his recently diagnosed bilateral hearing loss was to due to exposure to cannon fire while he was performing his duties as a tank commander in service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 evidence is insufficient to justify a belief by a fair and impartial individual that the veteran has presented a well-grounded claim of service connection for a bilateral hearing loss. FINDINGS OF FACT 1. The first recorded findings referable to a hearing disability for VA purposes were noted approximately 39 years after service in April 1987. 2. No competent evidence has been submitted to show that the recently diagnosed bilateral hearing disability is due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for a bilateral hearing loss has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical The service medical records show that on the veteran's induction examination, performed in September 1946, his hearing was 15/15 and his ears were within normal limits. The records further show that on his separation examination, conducted in March 1948, his hearing was 15/15 and his ears were within normal limits, with no defects having been noted. His service records show that he was a tank mechanic and an armorer (while having served with the 337th Ordinance (Ord.) Depot Company (Co), he maintained and serviced and made minor repairs on small-arms weapons). The veteran also submitted a military motor vehicle operator’s permit which showed that he was authorized to drive tanks while in service. On a private audiological examination, conducted on April 15, 1987, the pure tone air conduction thresholds were reported as 35, 35, 35, 45 ,and 60 decibels in the right ear and 40, 40, 60, 85, and 95 decibels in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 hertz, respectively. His speech discrimination was reported as 98 percent in the right ear and 74 percent in the left ear. On April 16, 1987, a private physician prescribed hearing aids to facilitate the veteran’s hearing; and reportedly, he would require these devices for the rest of his life. On a VA audiological examination, conducted in August 1993, the pure tone air conduction thresholds were reported as 35, 30, 40, 50, and 65 decibels in the right ear and 45, 45, 60, 75, and 85 decibels in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 hertz, respectively. His speech discrimination was reported as 100 percent in the right ear and 82 percent in the left ear. The veteran related a history of decreased hearing since the Korean War when he was a tank driver, and he had had trouble hearing bilaterally, especially in background noise. The diagnosis was that of mild sloping to moderately severe sensorineural hearing loss with good word recognition in the right ear; and a moderate to profound sensorineural hearing loss, with reduced word recognition in the left ear. In a September 1993 statement, the veteran reported that while having performed his duties as tank commander in service, he had operated tanks for 2 to 3 months; and after having fired the cannon on his tank, he would get ringing in his ears which would last for an hour or more. He further reported that he had noticed a definite hearing loss when he returned home from service, and he had learned to live with the problem until 1987 when he was forced to get hearing aids because his hearing was so bad. The veteran appeared with his friend at a personnel hearing at the RO in May 1995. In regards to his claim for hearing loss, he testified that, while assigned to the 81st Tank Company, he was a tank commander and driver. Reportedly, he would fire three shots from the tank’s 105 mm cannon twice month at an old wreck that was located outside the base. After having fired the cannon, the veteran testified that he would see someone’s lips move, but only would hear a “wow” sound. Eventually, the veteran testified that this “wow” sound would go away and that his hearing had seemed to be all right; however, he had noticed later that his hearing had started to deteriorate as he was having problems hearing other people. He added that he did not have any ear protection. He also testified that, during his separation examination, the examiner had told him that he had had a little hearing problem. In a November 1993 letter, the RO requested the veteran to furnish medical evidence to support his claim of hearing loss as a result of military service which should include treatment reports or the audiometric examination that first noted his disability. In a November 1993 statement, the veteran reported that he had not received treatment for his hearing loss until 1987 when he was prescribed hear aids (April 15, 1987 private audiological examination). He further reported that that he did not have another hearing examination until the August 1993 VA examination. The veteran also stated that he would get statements from family and friends who would attest that they had noticed a difference in the veteran’s hearing after his discharge from service, if the RO thought these statements would assist his claim. II. Analysis In general, service connection may be granted for a disability shown to be due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1995). However, before the veteran's claim can be addressed, he must first present evidence sufficient to justify a belief by a fair and impartial individual that the service connection claim is well- grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). The United States Court of Veterans Appeals (Court) has held that the veteran must submit evidence of a well- grounded claim, one that is plausible or meritorious. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the veteran has not met that burden, there is no further duty on the part of the VA to assist the veteran with the development of that claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v. Brown, 6 Vet.App 136, 140 (1994). When, as in this case, the issue involves a medical question of diagnosis or causation, competent, medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Statements and testimony from lay witnesses or the veteran in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the evidence must show that the veteran currently has a disability stemming from service. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Therefore, in order to have a well-grounded claim, the veteran must submit competent evidence of a current medical disability (a medical diagnosis); evidence of an incurrence or aggravation of a disease or injury in service (lay or medical evidence); and competent evidence of a nexus between an inservice injury or disease and a current disability (medical evidence) Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Service connection for defective hearing may be established only when the veteran's audiometric test results, including speech recognition scores, have reached a certain level. The provisions of 38 C.F.R. § 3.385 provide that for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 hertz is 40 decibels or greater, or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 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 (1995). The results of the audiometric tests performed by a private physician, and the VA, in April 1987 and August 1993, show that the veteran’s hearing disability meets the criteria as set forth hereinabove. Therefore, the crucial determination before the Board in regard to this issue is whether his recently diagnosed bilateral hearing loss is due to disease or injury which was incurred in or aggravated by service. As a preliminary matter, while the veteran’s limited service records do not support his position that he was a tank commander during service, they do show that he was a tank mechanic and armorer, and that he had had a military motor vehicle operator’s permit which had authorized him to drive tanks while in service. Consequently, the documentary evidence of record does tend to support the veteran’s statements and hearing testimony that he probably was exposed to some form of acoustic trauma during service. To establish service connection, the veteran is not obliged to show that a hearing loss was present in service. He may establish the required nexus between his current condition and his term of military service if he can show that his initial injury occurred while in military service. Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Therefore, if the evidence sufficiently demonstrates a medical relationship between the veteran’s inservice exposure to loud noise and his current disability, it would follow that the veteran incurred the current disability in service. Id. Therefore, the fact that the veteran has not shown that a hearing loss was present in service is not dispositive for evaluating a claim for service connection. Instead, the evidence must sufficiently demonstrate a medical relationship between the veteran’s inservice exposure to loud noise and his current disability. Unfortunately, the veteran has not presented such evidence. The first recorded diagnosis of a hearing loss was in April 1987, approximately 39 years after service; and no opinion as to the etiology of the veteran’s condition was noted by the private examiner who conducted the audiological examination. While the veteran provided a history of decreased hearing since the Korean War when he was a tank driver in the August 1993 VA examination, the examiner only noted a diagnosis of sensorineural hearing loss with no opinion as to the etiology of his condition. Therefore, no competent evidence has been presented to show that his current bilateral hearing disability is due to disease or injury which was incurred in or aggravated by service. Although the veteran has offered an opinion that his currently diagnosed sensorineural hearing loss was due to exposure to acoustic trauma in service, and that he could additionally obtain statements from family and friends who would attest that they had noticed a difference in the veteran’s hearing after his discharge from service, they are not, as a lay persons, competent to offer a medical opinion as to the diagnosis or causation of his claimed condition. Epps v. Brown, 93-438 (U.S. Vet App. August 27, 1996); Espiritu, supra; See also Franzen v. Brown, 9 Vet.App. 235 (1996). (The only evidence of in the record as to the cause of the veteran’s disability was his assertions and hearing testimony. Since his lay testimony is not competent evidence of medical causation, the veteran’s claim cannot be well grounded.) The Board would note the fact that the VA authorized an examination for the veteran’s claimed condition, does not mean that the veteran, who did not fulfill his statutory requirements to establish a well-grounded claim, is entitled to the duty to assist. Slater v. Brown, 9 Vet.App. 240 (1996) (Whether or not a VA examination should be conducted under 38 C.F.R. § 3.326 is an issue that arises only where a claim has already been determined to be well-grounded). Consequently, the veteran has not presented a well-grounded claim. The Board would note, that in its Informal Brief Presentation, the veteran’s representative requested the Board to determine whether the RO followed the VA Adjudication Manual, M21-1 (M21-1) which requires “full development” prior to a well-grounded determination. 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). However, if the representative is arguing that “full development” is to be interpreted as the duty to assist also applies in cases in which the veteran has not presented a well-grounded claim, the Board is of the opinion that the provisions of M21-1 and recent decisions rendered by the Court do not support this position. As a preliminary matter, the Board would note that M21-1 Part VI, 2.10(f), which states “the duty to assist will prevail while development is undertaken,” is not applicable. 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, a well-grounded claim). Consequently, development is undertaken pursuant to this provision once a veteran has presented a well-grounded claim. As he has not, this provision is not applicable to the veteran’s case. M21-1 Part III, 1.03(a) states “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” The Court has held repeatedly that only when a claim is well grounded does the VA have an obligation to “assist such a claimant in developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet.App. 69, 77-74 (1995). See also Epps v. Brown No. 93-438 (U.S. Vet.App. Aug. 27, 1996); Beausoleil v. Brown, 8 Vet.App. 459, 465 (1996). Therefore, until a the veteran has submitted a well-grounded claim, the VA is under no duty to establish the elements of his claim. Robinette, 8 Vet.App. at 76 (i.e. conduct a thorough and comprehensive medical examination to establish a causal nexus between an inservice injury and a current disability). Therefore, the requirement to “fully develop” a claim pursuant to M21-1 Part III, 1.03(a) is not analogous to the duty to assist which arises after a well-grounded claim has been submitted. The requirement applies to ensuring that the veteran has not filed a defective or incomplete application which would make development of the claim not feasible. Robinette, 8 Vet.App. at 78. Consequently, “fully developed” under the M21-1 means if the veteran’s application for benefits is incomplete, the VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. However, the veteran has not put the VA on notice that competent evidence exists that supports his lay assertions that his recently diagnosed bilateral hearing loss is due to exposure to acoustic trauma or other disease process in service. In a November 1993 statement, the veteran reported that he had not received treatment for his hearing loss until 1987, and that he did not have another hearing examination until the August 1993 VA examination. Furthermore, the RO has ensured that the veteran has submitted a complete application. In a November 1993 letter, the RO requested the veteran to furnish medical evidence to support his claim of hearing loss as a result of military service which should include treatment reports or the audiometric examination that first noted his disability. In addition, the RO ordered a VA examination even though it was under no obligation to do so. Consequently, the RO has met its burden under 38 U.S.C.A. § 5103(a) by informing the veteran of the evidence necessary to complete his application for benefits. Therefore, the Board is of the opinion that the veteran’s claim has been fully developed as the RO has associated with the claims folder all the available medical records for consideration. Under the circumstances of this case, the VA has not been put on notice that any other relevant evidence exists, or could be obtained, which, if true, would make the veteran’s claim “plausible.” Robinette, 8 Vet.App. at 80. Consequently, a remand is not appropriate under the facts of this case. Accordingly, since the veteran has not submitted competent evidence to support his contentions that his current disability is due to disease or injury in service, a well- grounded claim has not been presented. Caluza, 7 Vet.App. at 506; See also Brammer; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992) Since he has not presented a well-grounded claim, service connection for a bilateral hearing loss must be denied. ORDER As a well-grounded claim for service connection for a bilateral hearing loss has not been presented, the appeal is denied. REMAND The veteran maintains that his emotional problems are due to the stress he encountered during his military service. He states, in essence, that, while assigned to the provisional guard, commanded by a Lieutenant [redacted], between April 1947 to July 1947 in Korea, he was exposed to combat during raids on villages to recover stolen U.S. government property, to include having been beaten by 5 or 6 Koreans during one of these raids. In an October 1992 statement submitted by an individual who had served with the veteran, he reported that the veteran was assigned to the 81st Tank Company in Ascom City after having arrived in Korea; however, he was later transferred to the Provisional Guard Company. A Separation Qualification Record verifies that the veteran was assigned to the 337th Ord. Deport Company in Ascom City, Korea; however, the veteran’s service personnel records have not been associated with the claims folder. In an April 1993 VA examination, the veteran related a history of experiences in Korea that might be considered stressor incidents. In fact, the examiner diagnosed the veteran with post-traumatic stress disorder, moderate to severe, chronic in nature, Axis I. The veteran has additionally, through statements and his testimony at his personal hearing, presented evidence which was similar to those incidences described in his VA examination. No attempt has been made to verify these incidents. The veteran has presented a well-grounded claim of service connection for post-traumatic stress disorder because he has recently been diagnosed with post-traumatic stress disorder and there is a VA medical opinion of record which appears to relate his condition to service. Moreau v. Brown, 94-883 (U.S. Vet. App. September 12, 1996). When the veteran has submitted a well-grounded claim for post-traumatic stress disorder, the VA is required to assist him in developing the facts pertinent to his claim. Zarycki v. Brown, 6 Vet.App. 91, 99 (1993); See also Dizoglio v. Brown, 9 Vet.App. 163, 167 (1996) (When no attempt was made to verify the veteran’s claimed stressor, which if verified, would be a sufficient stressor, the VA has a duty to attempt to corroborate this information). Consequently, this case must remanded for further development of the record. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should again take the appropriate steps to contact the veteran in order to corroborate information concerning his alleged stressful events in service or stressors which have been identified in connection with his claimed post-traumatic stress disorder. This should include the specific the dates that the veteran was assigned to the Provisional Guard Company, whether this company had a more specific unit designation, and other circumstances surrounding these events. If received, the evidence should be associated with the claims folder. In addition, the RO should take appropriate steps in order to obtain the veteran’s service personnel records. 2. The RO should take the appropriate steps to contact the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road Springfield, Virginia 22150 and verify all claimed stressors of record. This should include obtaining a unit history of the Provisional Guard Company, commanded by a Lieutenant [redacted], between January 1947 to December 1948 in Korea. 3. The RO should take the appropriate steps to contact the veteran and obtain the names and addresses of all medical care providers who have treated him for any psychiatric disability since his discharge from service. Based on his response, the RO should obtain copies of all of the records from the identified treatment sources and associate them with the claims folder. 4. The RO also should obtain copies of any records referable to VA outpatient treatment received by the veteran pertaining to psychiatric disease since his discharge from service and service personnel records, and associate them with the claims folder. 5. The RO should schedule the veteran for a comprehensive VA psychiatric examination. All indicated testing should be conducted. The claims folder must be made available to the examiner prior to the examination. Based on his/her review of the case, it is requested that the examiner determine whether the veteran is suffering from post-traumatic stress disorder and, if so, whether the claimed stressor(s) is sufficient to support such a diagnosis and whether there is a causal relationship between the stressor(s) and the veteran’s present symptomatology. 6. After the development requested above has been completed, the RO should again review the veteran’s claim. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -