Citation Nr: 9915693 Decision Date: 06/07/99 Archive Date: 06/15/99 DOCKET NO. 98-17 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES Entitlement to service connection for hearing loss. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from July 1943 to November 1945. The veteran filed a claim in January 1998 for service connection for hearing loss and tinnitus. This appeal arises from the May 1998 rating decision from the Buffalo, New York Regional Office (RO) that denied the veteran's claim for service connection for hearing loss and tinnitus. A Notice of Disagreement was filed in June 1998 and a Statement of the Case was issued in August 1998. A substantive appeal was filed in September 1998 with no hearing requested. FINDINGS OF FACT 1. The veteran has presented no competent evidence to show that he currently suffers from hearing loss; the claim is not plausible. 2. The veteran has presented no competent evidence to show that any tinnitus is related to noise exposure in service or any postservice symptomatology; the claim is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a service induction examination in July 1943, no history of hearing loss or tinnitus was reported. On examination, the veteran's bilateral hearing was 15/15. On a separation examination in November 1945, no history of hearing loss or tinnitus was reported. On examination, the veteran's bilateral hearing was 15/15, whispered voice. The veteran's Report of Separation shows that he served from July 1943 to November 1945 with 1 year 5 months and 6 days of foreign service. Battles and Campaigns participated in were Ardennes, Central Europe, Rhineland and Normandy, Northern France. Decorations and Citations received were the Victory Medal, European African Middle Eastern Campaign Medal, and Good Conduct Medal. The veteran served with the Service Btry 557 FA Bn. A Separation Qualification Record shows that the veteran's military occupations were clerk typist and general clerk. In January 1998, the veteran filed a claim for service connection for hearing loss and tinnitus as a result of serving in an artillery battalion in the service. He left blank information requested as to treatment in service. He indicated that postservice treatment for "all conditions" was at the VAMC, Syracuse since 1997. In February 1998, a letter was sent to the veteran from the RO requesting treatment records since service for the claimed disabilities. A notation from the National Personnel Records Center (NPRC) from February 1998 indicates that the veteran's service medical records were not on file and may have been destroyed in a fire on July 12, 1973. VA outpatient treatment records from August 1997 to January 1998 do not show complaints, treatment, or diagnoses of hearing loss or tinnitus. In an April 1998 statement, the veteran's representative indicated that the veteran reported that he had not sought medical care for tinnitus or hearing loss. Additionally an examination was requested. By rating action of May 1998, service connection for hearing loss and tinnitus was denied. The current appeal to the Board arises from this denial. II. Analysis Unfortunately, the veteran's medical records from his period of active service are unavailable, presumably having been destroyed in a fire in the early 1970s at the NPRC. In cases where service medical records are unavailable through no fault of the claimant, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, Vet. App. 365 (1991). In this case, the service induction and separation exams are of record and efforts have been made to obtain all available post service records. The veteran has denied medical treatment both during and post service for the disabilities at issue. Therefore, there is no indication that there might be additional records available to help support the veteran's claim. Thus, the undersigned finds that the VA has met its heightened obligation to this veteran whose service medical records are unavailable. While the veteran may submit alternate forms of evidence to support his claim when service medical records are not available such as lay statements, a remand to obtain such statements would not serve any useful purpose in view of the basis for the denial in this case. In this regard, the claim is being denied because of the lack of medical evidence of the presence of hearing loss and the lack of medical evidence of a nexus between any current tinnitus and military service or post service symptomatology. Where a claim for service connection is brought by a veteran who engaged in combat, the Board must apply 38 U.S.C.A. § 1154 (West 1991), which provides that satisfactory lay or other evidence that a disease or an injury was incurred in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even if there are no official records indicating service incurrence. 38 U.S.C.A. § 1154 (West 1991). In this case, the veteran's military occupation was as a clerk typist and no decorations were received that would denote combat service. A decision of whether the veteran engaged in combat does not need to be reached as the provisions of 38 U.S.C.A. § 1154 are limited to the question of whether a particular disease or injury occurred in service, that is, what happened then, and not with the question of either current disability or nexus to service, both of which require competent medical evidence. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet. App 141, 144 (1992). In other words, these provisions only relax the evidentiary requirements for determining what happened in service. The provisions do not establish service connection for a combat veteran. The veteran must still present competent evidence of a current disability and medical evidence showing a nexus between a current disability and service. See Arms v. West, 12 Vet App 188 (1999). Establishing service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See 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 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Alternatively, under 38 C.F.R. § 3.303(b) (1998), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307 (1998) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1998). Where a veteran served 90 days or more during a period of war and high frequency hearing loss becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West l991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1998). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (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, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). The veteran is claiming that he currently has hearing loss and tinnitus that were incurred during service. The November 1945 separation examination is silent regarding complaints, clinical findings, or diagnoses of hearing loss or tinnitus. Further, no current medical evidence has been submitted to establish the presence of hearing loss or a nexus between any tinnitus and noise exposure during military service. As such, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992); and Caluza. Even if the veteran were to furnish lay evidence of continuity of symptomatology between his claimed tinnitus beginning in service, there would still remain the need to supply medical evidence of a relationship between any current tinnitus and postservice symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The only evidence that would support the veteran's claim is found in his statements; however, lay evidence is inadequate to establish a medical diagnosis or a nexus between a current disability and military service or post-service symptomatology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Savage. The veteran having failed to present evidence of a plausible claim for entitlement to service connection for hearing loss and tinnitus, those claims must be denied. While the representative notes that an examination should be conducted to determine whether the veteran has the claimed disabilities and their relationship to service, 38 C.F.R. § 3.326 (1998), in pertinent part reads, ...(a) Where there is a well-grounded claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child.... As the veteran has not presented a well grounded claim, an examination is not required. 38 C.F.R. § 3.326(a). Finally, the representative contends that the Board should determine whether the RO complied with M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996), prior to denying the service connection claim. He further contends that, if the Board finds that the RO did not comply with this provision, that the Board should remand the claim for "further development," specifically, evidentiary development, including provision of a VA medical examination pursuant to VA's "duty to assist." See 38 U.S.C.A. § 5107(a) (West 1991). 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. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table); accord, Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. den. sub nom. Epps v. West, 118 S.Ct. 2348 (1998). 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 the 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 provided by 38 U.S.C.A. § 5107(a)); Epps, 126 F.3d at 168; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development of "facts" 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 requires VA to 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); cf. 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 United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (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 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 RO complied with 38 U.S.C.A. § 5103. ORDER As a well grounded claim has not been presented, entitlement to service connection for hearing loss is denied. As a well grounded claim has not been presented, entitlement to service connection for tinnitus is denied. Iris S. Sherman Member, Board of Veterans' Appeals