Citation Nr: 9900785 Decision Date: 01/13/99 Archive Date: 01/22/99 DOCKET NO. 98-13 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from February 1944 to January 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 1998 decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran’s claim of service connection for defective hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran’s current bilateral hearing loss was caused by exposure to noise in service. Specifically, the veteran alleges that while in service he worked in the engine room of a ship for two years and this caused his current loss of hearing acuity. 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 claim 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 a well-grounded claim of service connection for defective hearing. FINDING OF FACT There is no competent medical evidence tending to link currently diagnosed defective hearing with the veteran’s military service or problems coincident therewith. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim of entitlement to service connection for defective hearing. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that 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, 1468-69 (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 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 also established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998). See Caluza, supra. Furthermore, regarding claims of service connection for defective hearing, it is important to point out that VA may only find impaired hearing 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 are less than 94 percent. 38 C.F.R. § 3.385 (1998). A review of the veteran’s service medical records, which include a January 1946 separation examination report, reveals that no loss of hearing acuity was noted. Records prepared following the veteran’s military service, dated from November 1947 to August 1988, are also negative for complaints or diagnosis of defective hearing. (A November 1947 VA examiner specifically reported that the veteran’s auditory canals were normal, no discharge was seen, and he had normal conversational hearing.) More recently, VA audiological examinations, dated in January 1995 and February 1998, were obtained by the RO. At the January 1995 audiological examination, the veteran, for the first time, was shown to have bilateral defective hearing per 38 C.F.R. § 3.385 (1998). Specifically, the veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 65 N/A 75 LEFT 45 65 70 75 95 Speech audiometry revealed speech recognition ability of 68 percent correct in the right ear and 48 percent correct in the left ear. The assessment was that the veteran had mild to severe sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. The examiner also recorded the veteran’s complaints of having had hearing loss for 25 years. The Board also notes that, a February 1998 examination report shows that the veteran had a history of long standing hearing loss and a history of noise exposure. Moreover, the examiner also opined that his test results showed that the veteran had mild to severe sensorineural hearing loss in the right ear and severe to profound sensorineural hearing loss in the left ear. Furthermore, it was reported that the veteran’s speech discrimination was moderately reduced in the right ear and poor in the left ear. Taking into account the record on appeal as reported above, the Board observes that the veteran was first shown to have impaired hearing of the sensorineural type in January 1995. Therefore, the veteran has met the first prong of the three- prong test set forth in Caluza, supra. However, his service medical records do not show that he had any loss of hearing acuity. Additionally, a review of post-service medical records fails to disclose a medical nexus between the current diagnosis of bilateral defective hearing and his military service. In short, no competent evidence has been presented to link currently shown disability to military service, or noise exposure coincident therewith. Likewise, no evidence has been presented to show that sensorineural hearing loss was manifested to a compensable degree within a year of the veteran’s separation from service. 38 C.F.R. §§ 3.307, 3.309. Inasmuch as the veteran is offering his own medical opinion as to the cause of hearing loss, the Board notes that the record does not indicate that the veteran has any medical expertise. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran's assertion of a medical nexus is not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993). Additionally, lay assertions of a medical nexus cannot constitute evidence to render a claim well grounded. See Grottveit, at 93; LeShore v. Brown, 8 Vet.App. 406 (1995). While the veteran is competent to report on the noise he was exposed to during service, there has been no competent medical evidence presented to link his current hearing impairment to such noise. Therefore, the veteran’s claim of service connection for defective hearing must be denied as not well grounded. The Board notes that the veteran’s representative has argued, in a December 1998 informal hearing presentation, 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) (1998)(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, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for defective hearing is denied. MARK F. HALSEY Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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). 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