BVA9505877 DOCKET NO. 91-41 792 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from April 1968 to November 1969. The appeal comes before the Board of Veterans' Appeals from an April 1987 rating action of the Atlanta, Georgia, Regional Office, which denied claims for entitlement to service connection for bilateral hearing loss disability and an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). The claims file was thereafter transferred to the New York, New York, Regional Office (RO), and in July 1992, the Board remanded the appeal for further development of the record. By rating decision of February 1993, the RO confirmed and continued its earlier determinations, and in March 1994 the Board again remanded the case for additional development of the record. In October 1994, the RO established service connection for PTSD, and the RO assigned a 30 percent evaluation effective from February 1987. The Board considers that determination a substantial grant of benefits, and the issue is not for consideration in this appeal. The rating decision of December 1994 again denied the claim for entitlement to service connection for bilateral hearing loss disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially claims that the RO erred when it denied his claim for entitlement to service connection for bilateral hearing loss disability. He states that he currently has a bilateral hearing loss disability that is the result of his exposure to acoustic trauma while in 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 preponderance of the evidence is against the claim for entitlement to service connection for hearing loss disability. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. Left ear hearing loss disability was initially demonstrated years after service, and has not been shown to be related to service. 3. A right ear hearing loss disability resulting from service, is not shown. CONCLUSION OF LAW Neither right ear nor left ear hearing loss disability was incurred in or aggravated by service, and a sensorineural hearing loss disability is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed. Neither the appellant, nor his representative contends that records not already associated with his claims file exist. Accordingly, the Board is satisfied that all relevant facts have been properly developed to their full extent and that the Department of Veterans Affairs (VA) has met its duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted if disability results from a disease or injury incurred in or aggravated by service, or if sensorineural-type hearing loss (organic disease of the nervous system) is demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (1993). Under governing regulations, the disease need not be diagnosed during service; but it must be shown by the evidence to be related to service. 38 C.F.R. § 3.303(d) (1993). For the purposes of applying the laws administered by the VA, service connection for impaired hearing is not precluded when the audiologic threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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(1993). Service medical records do not show right or left hearing loss during service. Testing in April 1968, taken in conjunction with his entrance into service, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 not tested 0 LEFT 10 0 0 not tested 10 Speech recognition ability was not tested at that time. The remaining service medical records include no complaints of, treatment for, or diagnosis of hearing loss. Upon separation in November 1969, pure tone audiometric testing was not 3 performed, but rather spoken voice and whispered voice tests were administered. That testing resulted in a score of 15/15, for each, which indicates normal hearing, bilaterally, at separation from service. Service personnel records indicate that the veteran participated in several operations while stationed in Vietnam. During service, his primary duties included rifle man, mortar man, and ammo man. It is in these duty assignments that the veteran claims exposure to acoustic trauma. Service personnel records generally support his contention that he was exposed to loud artillery gun fire while in service, and the veteran's contentions with regard to acoustic trauma exposure in service are uncontradicted. Upon initial VA audiologic testing subsequent to service, in August 1987, approximately 18 years after his separation from service, the veteran reported a history of noise exposure during service, with an increased hearing loss noticed in the left ear over the past 5 years. The audiologic examiner noted hearing within normal limits to 3,000 hertz dropping to a mild sensorineural hearing loss for the right ear, with a moderately severe sensorineural hearing loss for the left ear. However, while numerical interpretation of the particular thresholds was not made, the examiner's bar-graph threshold demarcations indicate that the criteria for right ear hearing loss disability, under 38 C.F.R. § 3.385, were not met at that time, since no threshold appeared to be greater than 40 decibels, at least three thresholds were less than 25 decibels, and speech discrimination ability was 100 percent on the right. Speech discrimination ability was noted as 52 percent on the left with thresholds above 40 decibels. As such, left ear hearing loss disability is shown initially in August 1987, with a history of in-service acoustic trauma. On the authorized audiological evaluation in October 1991, pure tone air conduction thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 40 LEFT 70 65 60 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 22 percent in the left ear. This testing indicates a right ear hearing loss disability above 3,000 Hertz, and a left ear hearing loss disability as earlier demonstrated. However, the marginal right ear hearing loss disability above 3,000 Hertz was not later demonstrated upon recent VA acoustic testing. The most recent testing indicates that the veteran currently has bilateral sensorineural hearing loss disability. On the authorized audiological evaluation in September 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 35 LEFT 75 75 65 65 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 20 percent in the left ear. A November 1994 memorandum of a senior VA audiologist who reviewed the veteran's claims file noted that due to the inadequacies of the testing at separation from service, bilateral hearing loss disability at separation from service could not be ruled out. Additionally, it was indicated that while the right ear hearing loss disability configuration was consistent with noise exposure, the left ear hearing loss configuration was not that normally associated with noise exposure. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the fair preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). After reviewing the record, the Board finds that although the absence of right ear hearing loss disability on separation from service was not definitively established on separation examination, audiological evaluation in August 1987 established the absence of right ear hearing loss disability. Further, the marginal right ear hearing loss disability demonstrated on audiological evaluation in October 1991 has not been confirmed on subsequent evaluation. In the absence of evidence indicating the presence of a disability or disease, a claim for service connection must fail. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Since current right ear hearing loss disability was not shown on testing in September 1994, service connection for right ear hearing loss disability is not warranted. In this case, service medical records show no complaints of, treatment for, or diagnosis of left ear hearing loss disability while in service, and left ear hearing loss disability is not demonstrated until at least August 1987, 18 years after his separation from service. Although the veteran subsequently attributes left ear hearing loss disability to acoustic trauma, his attempt to self diagnose the pathology of that disability, his medical opinion, is not competent evidence. Grottveit v. Brown, 5 Vet.App. 91 (1993). However, the veteran is competent to state that he was exposed to acoustic trauma in service, and his statements in that regard are uncontradicted by any evidence of record. Furthermore, he is currently diagnosed with left ear hearing loss disability. However, there has been no clinical demonstration that the left ear hearing loss disability, initially demonstrated years after service, is etiologically related to his active service. Moreover, a senior VA audiologist has noted that the veteran's left ear hearing loss disability configuration was not that normally associated with noise exposure. In view of the foregoing, the Board finds that the preponderance of the evidence against the claim for entitlement to service connection for right ear and left ear hearing loss disability, and, therefore, there exists no reasonable doubt which requires resolution. ORDER The claim for entitlement to service connection for hearing loss disability is denied. U. R. POWELL 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.