Citation Nr: 9836445 Decision Date: 12/14/98 Archive Date: 12/30/98 DOCKET NO. 97-10 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Wanda Beamon, Associate Counsel INTRODUCTION The appellant served on active duty from September 1952 to September 1954. This appeal arises from a January 1997 rating action. In that decision, the regional office (RO) denied service connection for defective hearing. (In his substantive appeal, the appellant requested a personal hearing before the Board at the local VA office; however, he subsequently withdrew this request.) The Board notes that the veteran’s October 1996 claim constituted a claim for compensation on account of defective hearing, and a claim for pension. It does not appear that the RO addressed the pension claim in its 1997 rating decision. Therefore, this issue is referred to the RO for further action as appropriate. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his defective hearing began during military service. Specifically, he asserts that he was exposed to heavy artillery and mortar fire during the Korean conflict, and that such noise exposure caused his hearing loss. The veteran’s representative has asked that the case be remanded to the RO for further development in accordance with 38 U.S.C.A. § 1154(b) (1998). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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’s claim of entitlement to service connection for defective hearing is not well grounded. FINDING OF FACT The record contains no competent evidence of an association between currently shown defective hearing and the veteran’s military service. CONCLUSION OF LAW The appellant’s claim of entitlement to service connection for defective hearing is not well grounded. 38 U.S.C.A. §§ 1110, 5107, 1154(b) (West 1991); 38 C.F.R. §§ 3.303, 3.385, 3.304(d) (1998). 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 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1998); Allen v. Brown,, 7 Vet. App. 439 (1995). When a 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) (1998). 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). 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). 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 United States Court of Veterans Appeals (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; Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The term “impaired hearing” is defined by regulation. For the purposes of applying the laws administered by VA, hearing loss 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; when the auditory thresholds for at least three of the frequencies of 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 (1998). During the current appeal, the appellant has asserted that service connection for defective hearing should be granted because, during active military duty, he was exposed to acoustic trauma. He referred to being exposed to heavy artillery and mortar fire while serving in Chae Gung-Dong, Korea. The appellant contends that he experienced ringing in his ears in 1965, and that, in following years, he experienced both ringing and popping in his ears. In addition, the appellant indicates that his hearing acuity has decreased during the past 20 years. Service medical records were unavailable. The only post-service medical record is a VA audiometric examination report prepared in November 1996. The examination showed puretone thresholds of 15, 25, 45, 55, and 70 decibels in the right ear, and 15, 20, 35, 60, and 70 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition scores were 84 percent in both ears. As to the right ear, the examiner noted that hearing was within normal limits from 250 to 1000 Hertz. Sensory neural hearing loss was mild at 2000 Hertz, moderate at 3000 Hertz, and moderately severe from 4000 to 8000 Hertz. As to the left ear, the examiner indicated that hearing was within normal limits from 250 to 1000 Hertz. Sensory neural hearing loss was mild at 2000 Hertz and moderately severe from 3000 to 8000 Hertz. In the present case, the results of the audiometric evaluation completed in November 1996 show some degree of defective hearing, bilaterally. See Hensley v. Brown, 5 Vet.App. 155 (1993). Furthermore, this audiometric test result provides competent evidence of current bilateral hearing impairment cognizable under 38 C.F.R. § 3.385. Significantly, however, the claims folder contains no medical evidence associating the appellant’s current defective hearing to his military service. As indicated above, there are no service medical records available, and the first evidence of defective hearing is dated in November 1996, approximately 42 years after his separation from active military duty. In short, the claims folder does not contain competent evidence associating the appellant’s defective hearing to his active military service. Although the appellant has indicated that he was exposed to heavy artillery and mortar fire in service, no opinion evidence has been presented linking current defective hearing to such in-service noise exposure. Without such evidence, the appellant’s claim of entitlement to service connection for defective hearing is not well grounded. Caluza, supra. It should be emphasized that, although the appellant’s service medical records are unavailable, apparently lost in a fire at the National Personnel Records Center, the Board’s decision to deny his claim is not premised upon the lack of official service records. Indeed, the Board has carefully considered the appellant’s statements with respect to events occurring both during and after service and, for purpose of considering whether his claim is well grounded, has presumed that they are true in all respects. 38 U.S.C.A. § 1154(b), 38 C.F.R. § 3.304(d). See King v. Brown, 5 Vet.App. 19, 21 (1993). The problem in this case is that no medical opinion has been submitted which tends to show that currently shown defective hearing can be attributed to the in-service noise exposure that the appellant has described. Without such evidence, his claim simply cannot be considered well grounded. It has also been contended on the veteran’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 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.” 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 veteran 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) (1997)(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 v. Brown, 5 Vet. App. 91 (1993), 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 at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. 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 to merely 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 veteran’s application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran’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 The appellant’s claim of entitlement to service connection for defective hearing is denied. MARK F. HALSEY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -