BVA9506443 DOCKET NO. 93-11 314 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a hearing loss of the left ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active naval service from August 1947 to March 1969. This matter comes before the Board of Veterans' Appeal (Board) on appeal of January 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the veteran's Substantive Appeal received by the RO in November 1992, he stated that he was seeking service connection for hearing loss in his left ear, a statement which is consistent with an earlier statement in January 1992. "An appellant's Substantive Appeal to the [Board] perfects the filing of the [Notice of Disagreement], continues the appeal, and frames the issues to be considered." Sondel v. Brown, 6 Vet.App. 218, 220 (1994). The Board determines that the veteran has perfected an appeal of the issue of entitlement to service connection for a hearing loss of the left ear. In addition, medical records indicate the veteran complained of ringing in the ears in 1977 and in 1988. It was noted in VA outpatient records dated in April 1989 that the veteran appeared to have experienced vertigo associated with tinnitus. The evidence shows that the veteran worked around aircraft while in service. The Board determines that an inferred claim for entitlement to service connection for tinnitus has been raised by the evidence, but that it is not inextricably intertwined with the issue currently before the Board. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). Therefore, the inferred claim for service connection for tinnitus is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently has a hearing loss of the left ear that was caused by his exposure to aircraft noise during service. He asserts that he was told of the hearing loss at the time of his examination for separation from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 evidence supports a grant of service connection for a hearing loss of the left ear. FINDINGS OF FACT 1. The veteran has submitted a well-grounded claim for entitlement to service connection for a hearing loss of the left ear, and the evidence is sufficient to equitably decide the issue on appeal. 2. The veteran's occupation for many years during service as an aviation electronics technician exposed him to loud aircraft noise resulting in acoustic trauma. 3. The veteran sustained a high frequency sensorineural hearing loss of the left ear during service. 4. The veteran currently has a sensorineural hearing loss disability of the left ear within the meaning of VA regulation which cannot be disassociated from the high frequency sensorineural hearing loss shown during service. CONCLUSION OF LAW A hearing loss disability of the veteran's left ear was incurred in service. 38 U.S.C.A. § 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board determines that the veteran has submitted a well-grounded claim for entitlement to service connection for a hearing loss of the left ear within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that the evidence is sufficient to equitably decide the veteran's appeal. Service connection may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a) (1994). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1994). Service connection can be established by presumption for certain chronic diseases manifest to a degree of 10 percent or more within one year after service. 38 C.F.R. §§ 3.307, 3.309 (1994). However, presumptive periods are not intended to limit service connection for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (1994). In addition, when service connection is claimed for impaired hearing, 38 C.F.R. § 3.385, 59 Fed. Reg. 60560 (1994) provides: 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. The veteran entered service in 1947. Reports of routine physical examinations throughout the veteran's time in service show that no abnormalities of the veteran's ears were found on examination. Neither an injury to or disease of the veteran's ears, nor hearing loss, was noted during service. In addition, during the first 20 years of service, the results of testing of the veteran's ears by means other than an audiometer revealed consistent scores of 15\15 in each ear. Audiometric testing of the veteran's ears on an annual physical examination in February 1968 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 10 25 Shortly thereafter, audiometric testing of the veteran's ears on a physical examination for reenlistment in April 1968 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 10 25 At the physical examination for separation in February 1969, the audiometric testing of the veteran's ears revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 10 20 25 "[T]he threshold for normal hearing is from 0 to 20 db, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet.App. 155, 157 (1993). The audiometric testing during the last year of service revealed some loss of hearing of the left ear. However, only the puretone threshold at 4000 hertz exceeded the normal range. Thus, a hearing loss disability within the meaning of 38 C.F.R. § 3.385 was not demonstrated during service. It should be noted, though, service medical records show that during the veteran's many years of service, he was assigned to numerous naval air stations while holding the occupation of "Aviation Electronics Technician." This occupation required the veteran to inspect and maintain aviation electronics equipment as well as to operate airborne electronic equipment. See Manual of Navy Enlisted Manpower and Personnel Classifications and Occupational Standards, NAVPERS 18068E, Section 1, at 5-D-1; and 5-D-7 (January 1986). Thus, his statements that he worked around and flew on aircraft during service which exposed him to significant noise are credible. In August 1977, the veteran was evaluated at an Ear, Nose, and Throat Clinic for complaints of tinnitus and decreased hearing in the left ear for one month. He reported that he was exposed to noise when flying in jets in service. It was noted that there was a high frequency sensorineural hearing loss of the left ear at 4000 hertz. In June 1988, the veteran requested VA outpatient evaluation for decreased hearing in his left ear. It was noted that he had been "deaf" in the left ear since service. He reported at a VA audiological consultation in October 1988 that he had experienced a hearing loss of the left ear since service. The audiologist noted aircraft noise exposure as the pertinent audiological history. Testing revealed a word discrimination score of 80 percent at 75 decibels. The testing results as a whole showed asymmetrical high frequency sensorineural hearing loss with the left ear having significant loss of hearing above 1000 hertz with at least 3 puretone thresholds exceeding 25. Thus, the evidence establishes that the veteran currently has a hearing loss disability of the left ear within the meaning of 38 C.F.R. § 3.385. In an April 1989 request for a consultation to a VA Ear, Nose, and Throat Clinic, it was noted that the veteran had a longstanding history of unilateral sensorineural hearing loss of unknown origin. A CT scan of the veteran's head in June 1989 failed to rule out the presence of a small intracanalicular neuroma in the left ear. Results of audiological testing that same month confirmed a sensorineural hearing loss of the left ear which meets the requirements of 38 C.F.R. § 3.385. In December 1989, the VA issued the veteran a hearing aid for the left ear. In evaluating the evidence, the Board notes that the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the United States Court of Veterans Appeals (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385...For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. at 159 (quoting from a brief of the VA Secretary). The Board previously determined the veteran experienced acoustic trauma during service. In addition, there was an upward shift in tested thresholds during the last year of service, with an abnormal result at 4000 Hertz, indicating a high frequency hearing loss. "The typical audiogram of an ear in a noise- exposed worker, then, will usually show a maximum loss at 4000 [Hertz]." W. Dixon Ward, Ph.D., "Noise-Induced Hearing Damage," Chapter 45 at 1642 in Otolaryngology, Volume II (Michael M. Paparella et al eds., 3rd ed. 1991). A high frequency sensorineural hearing loss of the left ear meeting the requirements of 38 C.F.R. § 3.385 has currently been shown. A sensorineural hearing loss was diagnosed as early as 1977 with exposure to aircraft noise during service consisted cited as the possible cause of the hearing loss. Although there is evidence the veteran now possibly has a small intracanalicular neuroma in the left ear, the hearing loss of the left ear shown at the end of service cannot be disassociated from the current hearing loss, and there is no evidence of an intercurrent cause. Thus, service connection is established for a hearing loss of the veteran's left ear because there is evidence of acoustic trauma and hearing loss during service, a current hearing loss disability within the meaning of VA regulation, and a medically sound basis to attribute the post-service findings to injury in service. The Board notes that in reaching its decision, the Board has referred to several publications not a part of the record at the time of the issuance of the last supplemental statement of the case, and that the veteran has not been afforded an opportunity to respond to the use of these publications. However, in view of the Board's favorable disposition of this appeal, and to ensure that an opinion is rendered as expeditiously as possible, the Board finds that no prejudice to the veteran will result from the Board's noncompliance with procedures set forth in Thurber v. Brown, 5 Vet.App. 119 (1993) and Chairman's Memorandum No. 01-94- 19 (Sept. 8, 1994). See Mykles v. Brown, No. 93-187, slip op. at 6, (U.S. Vet. App. Feb. 6, 1995). ORDER Service connection for hearing loss of the veteran's left ear is granted. JACQUELINE E. MONROE 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.