Citation NR: 9707360 Decision Date: 03/03/97 Archive Date: 03/13/97 DOCKET NO. 94-34 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for inflammation of the right auditory canal. 3. Entitlement to service connection for punctured left ear drum. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mark E. Goodson, Associate Counsel INTRODUCTION The veteran had active military service from July 1942 until January 1946. This appeal to the Board of Veterans’ Appeals (Board) arises from June 1993 and September 1994 rating decisions of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for a punctured left ear drum, inflammation of the right auditory canal, and hearing loss. The veteran further contends he should be given the benefit of the doubt, and that the RO failed to ensure that his claim was fully developed prior to its adjudication. 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 not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim of service connection for a punctured left ear drum, inflammation of the right auditory canal, and hearing loss is well-grounded. Accordingly, his claim is denied as not well-grounded. FINDINGS OF FACT 1. No competent evidence has been presented showing that the veteran has a punctured left ear drum or inflammation of the right auditory canal. 2. No competent evidence has been presented showing that the veteran’s hearing loss was incurred in or aggravated by service. CONCLUSION OF LAW The veteran’s claim of service connected punctured left ear drum, inflammation of the right auditory canal, and hearing loss is not well-grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran’s service medical records reflect the veteran incurred a punctured left ear drum in service. In January 1943 the veteran was seen for inflammation of his right auditory canal and eardrum. The veteran’s discharge examination reflects his ears had no abnormalities and that the veteran had hearing of 15/15 on the whisper test. In March 1993 the veteran filed a claim for hearing loss, an ear condition and a punctured eardrum as a result of service. In support of the claim the veteran stated he never had any treatment for these conditions after service. In June 1993 the RO denied the claim of service connection for a punctured left ear drum, inflammation of the right auditory canal, and hearing loss. The RO notified the veteran that there was no evidence of disability at the present time. In September 1993 the veteran submitted to a VA examination. The veteran stated he had a perforated right tympanic membrane in service. After removing a great deal of cerumen from the right ear, the examiner observed the right tympanic membrane was intact. The examiner noted deafness in the right ear and referred the veteran to a VA audiologist. The examiner’s diagnostic impression was deafness. On October 19, 1993 the veteran submitted to a VA audiological examination. The veteran’s chief complaint was decreased hearing in his right ear. He also complained of tinnitus in the right ear. He reported a history of right tympanic membrane perforation dating from service, when he was injured in a football game during basic training. He further stated that he had surgery for the perforation but that it “never took right.” He stated that his left ear was good. Otoscopy showed scarring of the right tympanic membrane and a slight amount of cerumen. The audiologist noted that present acoustical reflexes and flaccid tympanic membranes were not consistent with the veteran’s indication of a perforated right tympanic membrane, but were consistent with cochlear pathology. Audiological evaluation showed that the pure tone air conduction thresholds were reported as 35, 40, 55, 55, and 65 decibels in the right ear and 65, 80, 75, 75, and 80 decibels in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 hertz, respectively. Speech recognition was 32 percent in the right ear and 76 percent in the left. The audiologist noted the results indicated a sensorineural hearing loss in the left hear, within normal limits in the low frequencies sloping to a moderate to moderately severe loss in the middle and higher frequencies. The right ear demonstrated a moderate to profound mixed loss. On October 26, 1993 the veteran filed his substantive appeal. He repeated that his right eardrum had been injured in service. He further stated he had not been able to hear in his right ear subsequent to service. In September 1994 the RO again denied service connection for connection for a punctured left ear drum, inflammation of the right auditory canal, and hearing loss. The veteran appeals the denial of service connection for these disabilities. II. Analysis. The threshold question to be answered is whether the veteran has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order to show that a claim is well-grounded, there must be competent evidence of (1) a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet.App. 498 (1995). “Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence” in order to be considered well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1996); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well-grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board points out that 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 regulations provide that 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 with speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1996). Here, there is no question that the veteran meets the criteria of Section 3.385, and thereby satisfies the first prong of Caluza as to hearing loss. However, there is no current medical diagnosis of either left ear puncture or right ear inflammation. Therefore, the veteran’s claim as to left ear puncture and right ear inflammation fails the first prong of Caluza, supra. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992)(Congress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability). As to the second prong of Caluza, supra, the veteran’s service medical records confirm his claim that a punctured left eardrum was incurred in service. Therefore, he has satisfied the second prong of Caluza as to the punctured left eardrum. As to right ear canal inflammation and hearing loss, service medical records confirm that the veteran was seen for a right auditory canal inflammation. However, the discharge report reflects no such inflammation. On the contrary, on separation the veteran had normal hearing and no ear abnormalities. Moreover, the veteran states he was not examined from 1945 until 1993 for ear problems. Thus, even if there were a current diagnosis of right ear inflammation, there is nothing in the record to suggest that then 1943 inflammation was a chronic disability or anything other than an acute and isolated condition. See 38 C.F.R. § 3.303(b)(1996). The only evidence that either the ear inflammation or hearing loss was incurred or aggravated in service is the veteran’s statements to that effect. However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). While the veteran is competent to testify as to ear pain or other symptoms he may have had following service, there is no indication in the record that he has a medical background or training. Thus, he does not have the expertise to comment upon medical findings or provide a medical opinion concerning the diagnosis or onset of a disorder. Therefore, the veteran’s claim of service connection for right ear inflammation and hearing loss fails to satisfy the second prong of Caluza, supra. Further, the veteran must show a nexus, or link, between service and the current disability. Caluza, supra. With no current right ear inflammation or left eardrum puncture disabilities, there is nothing to link to service. Moreover, there is no medical evidence linking the veteran’s hearing loss to service. The veteran’s statements as to the nexus are entitled to no probative weight. Layno v. Brown, 6 Vet.App. 465 (1994); Espiritu, supra at 494. Therefore, given the absence of competent medical evidence to show such a nexus, the third prong of Caluza, supra, is not satisfied and the claim for hearing loss, right ear inflammation and punctured left eardrum is not well-grounded. The veteran contends his account of the service connection should be given the “benefit-of-the-doubt.” The Board notes that the veteran has the burden of submitting evidence sufficient render the claim well-grounded. 38 U.S.C.A. § 5107(a)(West 1991). If, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue, then the benefit of the doubt in resolving such issue will be given to the veteran. 38 U.S.C.A. § 5107(b)(West 1991). However, nothing in subsection 5107(b), supra, shifts the burden of submitting evidence in subsection 5017(a), supra. Id. Where a claim is not well-grounded, as in this case, weighing of the evidence is inappropriate and the benefit of the doubt doctrine does not apply. It is also contended on behalf of the veteran that recently modified provisions of the VA Adjudication Manual, M21-1 (M21-1) have “overruled” past decisions by the Court. Specifically, the representative argues that the duty to assist exists even if the veteran has not presented a well- grounded claim. The representative relies upon 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). M21-1 Part VI, 2.10(f) provides 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. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) after the veteran has presented a well-grounded claim. As the veteran 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.” The Court, in interpreting the relevant law,” 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, 9 Vet.App 341 (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 (regarding medical examination to establish a nexus between an in-service 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. Instead, the requirement to fully develop a claim requires the VA to ensure that the veteran has not filed a defective or incomplete application which would prevent development of the claim. Robinette, 8 Vet.App. at 78. Consequently, “fully developed” under M21-1 means that 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 he currently suffers from hearing loss, a punctured eardrum, and right ear canal inflammation which are linked to a disease or injury incurred or aggravated in service. In his May 1993 statement in support of claim, the veteran specifically noted that he had any treatment subsequent to service for his claimed disabilities. Furthermore, the RO ensured that the veteran submitted a complete application. In an April 1993 letter to the veteran, the RO requested evidence relating to treatment for his claimed disabilities since his discharge from service. In his October 1993 substantive appeal, the veteran asserted that VA outpatient records would establish his disabilities. The RO obtained the VA records and associated them with the claims folder. Consequently, the RO has met its burden under Title 38 U.S.C.A. Section 5103(a) by informing the veteran of the evidence necessary to complete his application for benefits, and associating with the claims folder all the available medical records for consideration. Therefore, the veteran’s claim has been fully developed. Furthermore, by this decision, the Board is informing the appellant of the evidence which is lacking and that is necessary to make the claim well-grounded. ORDER As the veteran’s claim of service connection for hearing loss, left ear puncture, and right ear inflammation is not well-grounded, the appeal is denied. N. R. ROBIN 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. 1995), 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 -