BVA9504969 
DOCKET NO.  91-22 997     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

Entitlement to service connection for hearing loss and tinnitus.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

D. B. Weiss, Associate Counsel

INTRODUCTION

The veteran had active military service from March 1943 to
December 1945.

This appeal was originally to reopen the claims of service
connection noted on the title page of this decision.  A June 1993
Board of Veterans' Appeals (Board) decision reopened the claims
and, thus, the claims are now for review on a de novo basis.

In accordance with the provisions of Thurber v. Brown, 5 Vet.App.
119 (1993), the representative was provided with a copy of the
medical literature cited in this decision, in a letter dated in
February 1995.  In a letter dated in February 1995, the
representative responded with further argument.

The representative stated in his argument of February 1995 that
the case should be remanded to allow "due process," or agency of
original jurisdiction review of the medical literature.  However,
neither the Court in Thurber nor an advisory opinion of the
General Counsel which concerned the practice of providing copies
of medical literature only to a claimant's representative
indicated any requirement that the type of evidence obtained
under Thurber be referred to the agency of original jurisdiction.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his hearing loss and tinnitus began in
a bomb blast in 1944, when he served in the Army Air Force in
England.  The veteran also notes that his group was bombed more
than 5 times in March 1944 and that during the time he was in
England they had about 47 air raids and alerts, and almost daily
buzz bombs.  On the particular 1944 occasion when he recalled the
first roaring and ringing in his ears, a buzz bomb had hit the
Red Cross Club where he was staying on leave, throwing him out of
bed and onto the floor.

The veteran contends that he went to the squad clinic several
times for the noise in his ears.  He also saw a flight surgeon
who reportedly told him his ears were worsening and not to fly.
His ear became infected and did not respond to treatment, so he
saw someone in another unit, who helped his infected ear but not
his tinnitus.  The veteran felt this was not noted in his records
because that person was not his squad's flight surgeon.

In the early 1950's, the veteran recalls, he took his son for
hearing acuity testing and underwent testing himself on that
occasion, and was told that he had a hearing problem.  Again in
1954 or 1955, a doctor in Alice, Texas, reportedly told him he
had hearing problems.  In about 1960, Dr. Thomas Foldre diagnosed
hearing loss.  In April 1982, Dr. P. Laursen suggested that the
veteran retire from his job with the Southern Pacific Railroad
based on his hearing acuity.

In an October 1988 statement, the veteran asserted that a "15/15"
audiological acuity rating at service separation was a "joke"
because audiological technology at that time was not capable of
detecting his high frequency hearing loss.

In June 1989, the veteran asked that the Board consider his
hearing loss and tinnitus to have been incurred in combat and to
accord him the benefit of laws pertinent to the incurrence of
disability in combat.  In September 1989, the veteran protested
the notation in a June 1947 Department of Veterans Affairs (VA)
examination that he had the ability to hear ordinary conversation
at 20 feet.  The veteran stated that the doctor had no
conversation with him at this distance and that such conversation
would have been impossible given the size of the examining room.
The veteran added that his first hearing examination was in
Victoria, Texas, in 1950.

The veteran believes his service medical records are incomplete.
He pointed out in an October 1990 statement that he was examined
prior to transfer from England to France and prior to transfer
from Germany to Japan, and that neither of these examination
reports is of record.  In January 1992, the veteran advised that
in service he was taken off flying status due to his ears.

In February 1993, the veteran submitted copies of awards he
received for his service and an excerpt from a history book
pertaining to buzz bombs.  One photograph in the excerpt depicts
the scene of the crash of a plane loaded with bombs, some of
which exploded due to the crash.  The veteran claims that he was
near this plane when it crashed and, in essence, that this
further damaged his ears.  In the same February 1993 submission,
the veteran asserted that he was hospitalized in service for 2
days due to his ears, and that he also received treatment for his
hand in service, which records are missing.

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 preponderance of the evidence is against the
claims.

FINDING OF FACT

Neither hearing loss nor tinnitus was shown in service; hearing
loss and tinnitus, first demonstrated years after service, are
unrelated to service.

CONCLUSION OF LAW

Hearing loss and tinnitus were not incurred in or aggravated by
service, nor may sensorineural hearing loss be presumed to have
been so incurred.  38 U.S.C.A.  §§ 1101, 1110, 1112, 1113, 1154,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1994).

REASONS AND BASES FOR FINDING AND CONCLUSION

Initially, we note that the provisions of 38 U.S.C.A. § 5107 have
been met, in that the claims are well grounded and adequately
developed.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.

Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active wartime
service.  38 U.S.C.A. § 1110.

Where a veteran served for 90 days or more during a period of
war, and sensorineural hearing loss develops to a degree of
10 percent or more within one year from date of service
separation, then such disease may be service connected even
though there is no evidence of such disease in service.  This
presumption is rebuttable by affirmative evidence to the
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307,
3.309.

In any case where a veteran was engaged in combat with the enemy
during a period of war, the VA shall accept as sufficient proof
of service-connection of any disease or injury alleged to have
been incurred in or aggravated by said service such satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service, and, to that end, shall resolve
every reasonable doubt in favor of the veteran.  Service-
connection of such injury or disease may be rebutted by clear and
convincing evidence to the contrary.  38 U.S.C.A. § 1154(b).

With a chronic disease shown as such in service (or within an
applicable presumptive period), subsequent manifestations of the
same chronic disease at any later date are service connected
unless clearly attributable to intercurrent cause.  This rule
does not mean that any manifestation of joint pain, any cough, or
any urinary finding of casts in service will permit service
connection for arthritis, pulmonary disease, or nephritis first
shown as a clearcut entity at some later date.  For the showing
of chronic disease in service, a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as distinguished
from merely isolated findings or a diagnosis including the word
"chronic," is required.  Continuity of symptomatology is required
only where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or where
the diagnosis of chronicity may be legitimately questioned.  When
the fact of chronicity in service is not adequately supported,
then a showing of continuity after discharge is required to
support the claim.  38 C.F.R. § 3.303(b).

Service connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).

The determination of whether the veteran has a service-
connectable hearing loss is governed by 38 C.F.R. § 3.385, which
states that hearing loss will be considered to be a disability
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).

Where service medical records are not available, the Board's
obligations to explain its findings and conclusions and to
consider the benefit-of-the-doubt rule is heightened.  Pruitt v.
Derwinski, 2 Vet.App. 83 (1992); O'Hare v. Derwinski, 1 Vet.App.
365 (1991).

Service medical records reveal that the report of examination at
induction in February 1943 showed the veteran to have normal
hearing acuity of "15/15" bilaterally.  A June 1945 report of
examination for non flying status showed that the veteran had a
physical profile consistent with some defect in hearing acuity or
the ears.  At separation medical examination in December 1945,
the veteran's hearing acuity was normal, as shown by his ability
to hear and understand a whispered voice spoken at a distance of
15 feet bilaterally.  Ear, nose, and throat abnormalities were
described as "none."  The veteran was noted to have had an
infection of his left ear in December 1944, which had healed.
Surgeon General's Office records pertinent to this appeal
disclose no hospitalization for defective hearing or the ears.

VA examination in June 1947 revealed a history of working as a
brakeman and having no post-service hospitalizations.  There were
no complaints of hearing loss or tinnitus.  Ordinary conversation
was heard and understood bilaterally at 20 feet.  The auditory
canals were normal without discharge.  There were no pertinent
diagnoses.

VA ear, nose, and throat examination conducted in October 1984
showed the veteran's history of ear infection, noise exposure and
tinnitus in service with tinnitus and hearing loss persisting
after service.  He added that his tinnitus progressed over time
and that he reported this from time to time.  The veteran
reported that while working for the railroad from 1946 to 1982 he
had been exposed to loud noise.  In 1980 he had almost stepped in
front of a train because he did not hear the warning signal and
therefore went to a doctor.  He was reportedly told that he had
an 80% loss of hearing in his left ear and a 75% loss in his
right ear.  He had been issued a hearing aid about 6 years before
but could not wear it because he was exposed to loud noise at
work and it made him very nervous.  The diagnoses included
history of tinnitus, subjective, continuous, none at time of
exam, and see audiogram for severity of hearing loss.

VA audiology examination in October 1984 was said to show
bilaterally sloping hearing loss and speech discrimination
ability of 86 percent correct bilaterally.  On the evaluation,
pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT
15
25
55

LEFT
15
25
55

In May 1987, [redacted] advised that after several visits to the
veteran at the squadron clinic following the incident at the Red
Cross Club, there was no doubt that the veteran had a hearing
impairment from that incident.  Private audiology reports dated
from May 1988 to May 1989 appear to indicate that the veteran had
sensorineural hearing loss.

In September 1988, [redacted] wrote that prior to D-Day in
1944, the veteran had gone on leave and had come back complaining
about his ear, stating the problem was caused by a buzz bomb
which had exploded near him on his leave.  [redacted] has submitted
a statement received in October 1988, where she said that ever
since the veteran's return from service, he would frequently ask,
"WHAT DID YOU SAY."

The veteran has also submitted a copy of an audiogram which he
reports was done in October 1988 by Dr. Laursen.  Dr. Laursen
wrote in a letter the same month that the veteran had progressive
sensorineural hearing loss.  The veteran related this to World
War II noise trauma.  Dr. Laursen stated that it was possible
that noise trauma produced the veteran's noise notch hearing
loss.

Mr. [redacted] again wrote to the VA in May 1989, advising that the
veteran had ear infection and constant ringing in his ears in
service.

In October 1990, M. McCurdy, M.D., wrote that the veteran was his
patient for 15 years and that during this time the veteran
complained frequently of tinnitus.  The veteran attributed this
to a bomb blast in 1944 which had been concurrent with the first
instance of tinnitus, which had persisted since then.  Dr.
McCurdy felt that the tinnitus was associated with neurosensory
hearing loss.  Dr. McCurdy noted that in 1982 the veteran was
advised to retire due to being unable to hear radio signals on
trains.  Dr. McCurdy added that recent audiograms confirmed the
"typical drop in hearing that it is the result of blast injury."
The veteran was noted to need bilateral hearing aids, and Dr.
McCurdy felt that the veteran "carries a long time permanent
hearing loss with tinnitus as a result of his injury in 1944."

In November 1990, the veteran submitted a photograph depicting a
bombed-out house in England, in June 1944.  In March 1991, the
veteran argued that he was in the building when a buzz bomb hit.
He added that he sustained additional acoustic trauma in service
while working on the flight line.

In November 1991, [redacted] advised that he served with the
veteran and recalled that he complained of ringing and roaring in
his ears after a buzz bomb nearly destroyed a hotel in which he
stayed, and that he was treated for same.  In March 1992, Dr.
McCurdy clarified that he treated the veteran from 1963 to 1982
but possessed no audiogram records in the veteran's case.  In
September 1992, the medical administrator of the railroad, H.
Hyder, M.D., advised that he had been unable to locate any
physical examination records of the veteran.  In February 1993,
Mrs. [redacted] advised that she had known the veteran since
1946 and that at that time he had a hearing problem which he
attributed to buzz bombs.

The veteran has submitted copies of private clinical notes dated
from November 1988 to August 1993, and a record of an audiometry
which is undated.  In September 1993, the veteran's wife advised
that she had been married to the veteran for 45 years and that he
had poor hearing acuity.  [redacted] advised in October 1993 that
he had witnessed the aforementioned incident wherein the veteran
was nearly hit by a train due to his poor hearing.  Also in
October 1993, the veteran was seen at the office of Dr. Laursen,
for audiometry testing.

In August 1993, Dr. Laursen again wrote to report the veteran's
history of hearing loss going back to world War II noise trauma.
In March 1994, P. Dodson, M.D., of the Victoria City-County
Health Department wrote that records of the veteran's visit in
1955 were not retained but that upon her word the VA should
accept that the veteran was tested there 39 years before.  In
July 1994, Mr. [redacted] wrote that when he and the veteran were
discharged, examinations were perfunctory and did not include
hearing testing or ear examination.

We have considered all of the relevant evidence.  We find that
the veteran's bilateral defective hearing and tinnitus were first
shown years after service and are not related to service.  Nor
may service connection be presumptively granted for sensorineural
hearing loss first shown years after service.  In essence, we
find that the December 1945 service separation medical
examination and the June 1947 VA examination are dispositive as
to the state of the veteran's ears and hearing at those
respective times.  We appreciate all of the statements provided
by the veteran's friends and family as to the date of onset and
the cause of his defective hearing and tinnitus.  Nonetheless,
these individuals, as lay persons, can testify as to whether the
veteran had difficulty hearing and that he may have told them
about tinnitus and noise exposure, but are not qualified to
render an opinion as to the etiology of these problems.  See
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992).  Further, and
more importantly, their recollections many years after the fact
are less reliable than the contemporaneous medical evidence as to
the presence of hearing or ear complaints or findings.  We note
the veteran's assertion, supported by Dr. Dodson's letter and the
statements of his subsequent doctors, that in and after 1955,
chronic defective hearing was shown.  We further note that Dr.
Dodson's report that the veteran had defective hearing in 1955
was made from memory more than 38 years after the alleged hearing
test.  In any event, such manifestation of defective hearing is
too remote from service to be related to service.  Therefore, the
preponderance of the evidence is against the claims.  Thus, the
benefit of the doubt rule is not for application, even
considering the allegedly incomplete state of the service medical
records.  O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).

We recognize that the June 1945 physical profile for the veteran
indicates that he had some defect in his hearing acuity or
ear(s).  However, there is indication in the separation
examination in December 1945 that the veteran had an ear
infection in December 1944, which had resolved.  Moreover, even
assuming that he had tinnitus and hearing loss in 1944 due to a
bomb blast, the separation examination and 1947 VA examination
make clear that these problems had resolved.  Thus, the
separation examination and 1947 VA examination provide
affirmative evidence that these problems were not chronic in
service.  38 C.F.R. § 3.303(b).

While the veteran and his service companions have argued, years
after the fact, that the service separation examination did not
include a hearing test or ear examination, this argument is
outweighed by the specific, contemporaneously written finding of
a medical doctor that such examination was performed and was
normal.  We agree with the veteran that audiological technology
at that time was not capable of detecting a high frequency
hearing loss with the same precision as one may be detected
today; however, we disagree with his conclusion that the
separation medical examination was a "joke."  The spoken and
whispered voice tests are "crude but time-honored methods" for
rapid and approximate testing of hearing acuity.  H. Davis, M.D.,
and S. Silverman, Ph.D., Hearing and Deafness, 179-83 (3d. ed.
1970).  The evidence on which we must decide this case is the
evidence of record, and we find that the separation medical
examination is a fair and accurate portrayal of the veteran's ear
and hearing status in December 1945.  We find that the veteran's
first hearing test was not, as he asserts, in Victoria, Texas, in
the 1950's.  Further, even if a hearing test in the 1950's did
show a hearing loss, it does not negate the finding of no hearing
loss on separation examination in December 1945 and on VA
examination in 1947.  We have also considered the veteran's
argument that the VA examiner in 1947 did not and could not have
tested his hearing as reported.  However, the doctor's specific,
contemporaneously written statement to the opposite effect holds
more probative value on this point than does the veteran's
assertion.

We concede that the veteran sustained acoustic trauma, at least
some of which was incurred in a combat situation, in service.  38
U.S.C.A. § 1154.  However, this in no way means that his current
tinnitus and defective hearing, first shown years after
separation, began in service.  Section 1154 permits the inference
that the initial injury, acoustic trauma, occurred in service,
but does not diminish the requirement that the current disability
be shown to arise out of said injury.  This requirement has not
been met in the instant case.  Even if we assume that the veteran
had a hearing loss as a result of a bomb explosion or explosions,
normal hearing found on examination for separation from service
in December 1945 and in 1947 is clear and convincing evidence
that any such hearing loss in service was not permanent, as
discussed in the Jerger and Jerger article below.  We appreciate
that Dr. McCurdy noted that the veteran's audiograms confirmed a
"typical drop in hearing that it is the result of blast injury,"
and that he felt that the veteran "carries a long time permanent
hearing loss with tinnitus as a result of his injury in 1944."
Nonetheless, merely because the veteran's audiograms are typical
of a certain type of acoustic trauma does not show that they
could only reflect the result of in-service trauma.  Nor does Dr.
McCurdy's assessment of the cause of the hearing loss and
tinnitus, based on the veteran's report of his own history, bear
as much evidentiary weight as the contemporaneous medical records
of 1945 and 1947 showing normal hearing and ears.

Medical literature states that exposure to noises of sufficiently
high intensity may result in a temporary or permanent loss of
hearing.  The loss may occur in two different ways:  either from
long-term exposure to a hazardous noise environment (noise-
induced hearing loss) or from short-term exposure to a single
blast of intense noise (acoustic trauma).  The onset of hearing
loss in acoustic trauma is typically instantaneous.  In contrast,
the onset of noise-induced hearing loss is more insidious.  A
temporary loss of hearing occurs, which recovers within a few
days after noise exposure ceases.  With excessive noise exposure,
however, the recovery process does not occur, and a permanent
sensorineural hearing loss is effected.  S. Jerger and J. Jerger,
Auditory Disorders:  A Manual for Clinical Evaluation 119-123
(1981).  Therefore, one would reasonably expect that if a
permanent loss of hearing had been incurred as a result of
acoustic trauma in 1944, it would have been present when the
veteran was examined in December 1945 and in 1947.  In this case,
this is clearly not demonstrated, as explained above.  The
representative's February 1995 argument that the Board has
wrongly equated an absence of evidence with negative evidence has
been considered.  However, the Board finds that the December 1945
and 1947 hearing examinations clearly constitute negative
evidence, or evidence which weighs against the claims.  For all
of these reasons, we are unable to identify a reasonable basis on
which to grant the claims.

ORDER

Service connection is denied for bilateral defective hearing and
tinnitus.

_______________________________
WILLIAM J. REDDY

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.