BVA9505827 DOCKET NO. 92-56 385 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to service connection for bilateral hearing loss. Entitlement to an increased (compensable) disability evaluation for residuals of perforation of the right tympanic membrane. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. M. Yonemoto, Counsel INTRODUCTION The veteran had active service from July 1969 to June 1972. In a written presentation of January 1995, the veteran's representative asserted that the issue of entitlement to service connection for tinnitus is inextricably intertwined with the issues of service connection for bilateral defective hearing as well as to an increased (compensable) disability evaluation for residuals of perforation of the right tympanic membrane. The Board of Veterans' Appeals (Board) is of the opinion that the former issue can be rated separately from the latter issues and is thus not inextricably intertwined. See Kellar v. Brown, 6 Vet.App. 157, 160 (1994). Hence, the issue relating to tinnitus is referred to the regional office (RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during service he was exposed to acoustic trauma which led to the development of his bilateral defective hearing. Specifically, it is maintained that he was near a machine gun when it was accidentally fired within inches of his ear, that the firing ruptured his eardrum, causing hearing impairment, and that the onset of his current hearing loss was in 1971. It is also argued that the residuals of the perforation of the tympanic membrane on the right have increased in severity. Attention is directed to the provisions of 38 C.F.R. §§ 4.1, 4.7 and 4.10 (1994). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for left ear hearing loss and for an increased (compensable) disability evaluation for residuals of perforation of the right tympanic membrane. It is also the decision of the Board that the evidence supports the grant of service connection for right ear hearing loss. FINDINGS OF FACT 1. The veteran's right ear hearing loss is causally related to the in-service acoustic trauma to that ear. 2. At service separation, left ear hearing was normal; left ear hearing loss, first shown years after service, is unrelated thereto. 3. Residuals of perforation of the right tympanic membrane are asymptomatic. CONCLUSIONS OF LAW 1. Right ear hearing loss was incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.102 (1994). 2. Left ear hearing loss was not incurred in or aggravated by service, nor may sensorineural hearing loss in that ear be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 3. A compensable disability evaluation for perforation of the right tympanic membrane is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.41, Part 4, Code 6211 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that his claims are plausible. Furthermore, the Board is satisfied that all relevant facts have been properly developed, and there is no further "duty to assist" the claimant, which is also mandated by § 5107(a). I. Entitlement to Service Connection for Bilateral Hearing Loss. To establish service connection for a disability, the evidence must show that the disability was incurred in service, or, if pre-existing, that it was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). When sensorineural hearing loss, included in "other organic diseases of the nervous system," becomes manifest to a compensable degree within one year after separation from service, it is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Hearing loss shall be considered service connected when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. Department of Veterans Affairs, 38 C.F.R. Part 3, Disability Due to Impaired Hearing, 59 Fed. Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). When a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1994). The audiometric study during the veteran's pre-induction examination in June 1969 showed threshold levels of 0, 0, 0, 0 and 0 decibels in each ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. In the medical history report completed in connection with the pre-induction examination, the veteran answered in the negative the question of whether he had or had ever had hearing loss. Physical examination of the ears was normal. The audiometric study in December 1969 revealed threshold levels of 20, 25, 20, 20, 20 and 15 decibels in the right ear and 10, 5, 10, 20, 15 and 20 decibels in the left eat at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. The service medical records show that in November 1970 the veteran sought treatment for a right ear disorder. Clinical data disclosed that a machine gun had gone off next to his right ear about four weeks before, and that he had had otalgia and decreased hearing since that incident. No drainage or fever was reported. Examination revealed perforated right tympanic membrane with healing in process. The impression was traumatic perforation of the right tympanic membrane. In July 1971, he sought treatment for a disorder not pertinent herein. Ear examination was negative. An audiometric study in April 1972 disclosed 15, 10, 10, 5, 15 and 35 decibels in the right ear and 10, 15, 5, 5, 10 and 35 in the left ear at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 hertz, respectively. The separation examination in June 1972 revealed normal ears. An audiogram at that time showed threshold levels of 25, 25, 15, 15, 25 and 30 decibels in the right ear and 20, 15, 15, 15, 20 and 15 decibels in the left at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hertz, respectively. There was no diagnosis referable to hearing loss. In a statement, dated in May 1990, the veteran related that during a training exercise in 1970 a machine gun accidentally fired within inches of his ear, and that his ear drum was ruptured. In an application for compensation benefits, received in June 1990, the veteran reported sustaining an ear injury in 1970. The veteran remained silent as to listing the names of civilian physicians and hospitals which might have treated him for an ear condition. Included as part of the record are Department of Veterans Affairs (VA) outpatient treatment reports dated in 1990 and 1991. A progress note of May 1991 shows that the veteran was fitted with hearing aids. In November 1992, the veteran underwent a VA audiometric study. At that time, he reported having a history of longstanding hearing loss which originated from a right tympanic membrane burst in service. Pure tone air conduction tests revealed threshold levels of 40, 40, 35, 45 and 65 decibels in the right ear and 30, 30, 25, 35 and 55 decibels in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. The audiologist concluded that the veteran had bilateral, fairly symmetrical, mild sloping to moderately severe sensorineural hearing loss with fair speech recognition. On a VA ear examination in March 1993, the veteran gave a history of his ear condition. He stated that since the acoustic trauma in the early 1970's he had had decreased hearing, and that he had worn bilateral hearing aids since 1991. Examination revealed normal eardrums. The diagnoses included bilateral neurosensory hearing loss, dating back to the early 1970's. In June 1993, the veteran had a VA ear examination. On that occasion, he stated that he was around loud machine-gun fire and sustained a perforation in the right eardrum at one time, that that condition healed spontaneously, and that the veteran had decreased hearing since that time in the early 1970's. Examination revealed intact eardrums. There was mild right tympanosclerosis. Tuning fork test revealed air conduction greater than bone conduction in both ears. The Weber was not adequately heard to either ear to lateralize accurately. The diagnoses included status post perforation of the right eardrum in 1971, healed spontaneously with right tympanosclerosis, and bilateral neurosensory hearing loss since 1971. Regarding the veteran's claim for service connection for right ear hearing loss, the Board initially observes that service medical records document that a machine gun was fired near his right ear and that he complained of decreased hearing shortly thereafter. Thus, the evidence of record establishes that the veteran was exposed to in-service acoustic trauma to the right ear. When the audiometric findings recorded prior to the machine gun incident are compared with those reported at his separation from service, there is a showing of an increased in severity of the veteran's hearing impairment in the right ear. The latter reflected abnormal hearing at 4 decibel levels. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). These findings pertinent to the right ear on service separation support his assertion that his current hearing loss in the right ear is causally related to the in- service noise exposure. The VA examiner's conclusion in 1993 that the veteran's current hearing loss in the right ear dated back to the early 1970's also significantly supports the veteran's assertion. As noted in Hensley, the veteran may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury suffered in service even though during service there was no indication of a hearing disability under 38 C.F.R. § 3.385. Hensley also held that a failure to meet the requirements of 38 C.F.R. § 3.385 at separation from service does not necessarily bar service connection for hearing loss. Hence, after review all the evidence on file, especially the abnormal acoustic findings in service, the acoustic trauma to the right ear and the medical opinion of the date of onset of the veteran's current right ear hearing loss, it is the Board's judgment that the in-service acoustic trauma near his right ear led to the development of his current hearing loss in that ear. Service connection for right ear hearing loss is warranted. Concerning the veteran's claim for service connection for left ear hearing loss, a careful review of the service medical records discloses one abnormal finding at the 6,000 Hertz level in April 1972. Significantly, the separation examination showed normal hearing acuity, even at the 6,000 Hertz level. Additionally, with respect to hearing in the left ear, the audiometric findings prior to the machine gun incident and at the separation examination were essentially similar and all were within the range of normal. Manifestations of sensorineural hearing loss in the left ear were not shown to be present within one year following his separation from service. The veteran did not file an application for compensation benefits for defective hearing until more than seventeen years after his service discharge. While the Board has considered the 1993 VA examiner's opinion that broadly states that the veteran's "hearing loss" dated back to the 1970's, it is otherwise noted that the opinion was based on the veteran's reported history of having such problems since that time. As noted above, his history is consistent with the findings during service pertaining to the right ear hearing loss. However, the clinical data do not support the presence of left ear hearing loss until years after service. Consequently, the post-service medical opinion is of limited probative value. In weighing the evidence regarding whether there is an etiological relationship between the current defective hearing of the left ear and an incident in service, the Board concludes that the findings of an abnormal decibel level on one occasion during service which had resolved by the time of the separation examination and the lack of any post-service showing of left ear hearing loss for an extensive period of time following service outweigh the veteran's current contentions and the post-service diagnosis of "hearing loss" dating back to service. Accordingly, after reviewing the evidentiary picture in its entirety, the Board concludes that the veteran's current left ear hearing loss is not related to service. Service connection for left ear hearing loss is, therefore, not warranted. II. Entitlement to an Increased (Compensable) Disability Evaluation for Residuals of a Perforation of the Right Tympanic Membrane. The veteran argues that he should be entitled to a compensable disability evaluation for his service-connected residuals of a perforation of the right tympanic membrane. The residuals have been evaluated under Diagnostic Code 6211 of the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). Under that diagnostic code, perforation of the tympanic membrane warrants a noncompensable evaluation. 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedular rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). In evaluating the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). The veteran's claims folder contains the service medical records and VA medical reports. The service medical records disclose that he had perforation of the right tympanic membrane. The separation examination, however, revealed normal ears and drums. On a VA ear, nose and throat examination in March 1993, the veteran gave a history of injuring his right ear drum in service. On examination, he had normal eardrums. There was no diagnosis referable to the eardrums. In June 1993, the veteran had a VA ear examination. On that occasion, he stated that he was around loud machine-gun fire and sustained a perforation in the right eardrum at one time, and that that condition healed spontaneously. Examination revealed intact eardrums. There was mild right tympanosclerosis. The diagnoses included status post perforation of the right eardrum in 1971, healed spontaneously with right tympanosclerosis. On review of the medical evidence on file, the Board observes that the veteran's perforation of the right tympanic membrane healed well. There is no current medical evidence disclosing symptomatic residuals of that perforation or functional impairment caused by the residuals. Because of the objective findings reflecting a healed right tympanic membrane, the Board concludes that the assignment of a compensable disability evaluation for residuals of a perforation of the right tympanic membrane is not warranted. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Part 3 and Part 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the service-connected residuals of a perforation of the right tympanic membrane present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, such factors as frequent periods of hospitalization or marked interference with employment are not demonstrated in the record. ORDER Service connection for hearing loss of the right ear is granted. Service connection for hearing loss of the left ear is denied. An increased (compensable) disability evaluation for residuals of a perforation of the right tympanic membrane is denied. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (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.