BVA9502060 DOCKET NO. 90-26 532 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from September 1952 to July 1953. This appeal arises from a rating decision dated in July 1989 from the Jackson, Mississippi, Regional Office (RO) which denied the veteran's request to reopen his claim for service connection for bilateral hearing loss. The RO found that the veteran had not submitted new and material evidence sufficient to reopen his claim, which had been originally denied by the RO in November 1985. In November 1990, the Board of Veterans' Appeals (Board) also denied the veteran's request to reopen his claim for service connection. The Court of Veteran's Appeals (Court), however, vacated that denial, finding that new and material evidence had been presented to reopen the veteran's claim, and the case was remanded to the Board for additional evidentiary and procedural development consistent with the Court's instructions. [citation redacted]. The Board thereafter remanded the case to the RO in May 1993. The claims folder was returned and docketed at the Board in July 1994, and is now ready for appellate review and consideration. We note that the veteran has, on several occasions, complained that he suffers from tinnitus, or ringing in the ears, which he attributes to service. This issue, which is a separate claim from that of service connection for bilateral hearing loss, has not heretofore been developed or adjudicated by the RO, and we therefore instruct the RO to undertake such action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred bilateral hearing loss when he was exposed to the noise of a .50 caliber machine gun during a training exercise during service, as well as exposure to loud noise as a heavy equipment operator. He asserts that since service, his hearing acuity has steadily decreased, requiring the use of hearing aids. 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 a grant of service connection for the veteran's bilateral hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. At the time of his separation from service, the veteran gave a history of trouble with his ears, although no specific symptomatology or complaints were noted. At his separation examination, however, no loss of hearing acuity was found, and no physical abnormalities were diagnosed. 3. Further evidence demonstrating the presence of bilateral hearing loss is not shown until 1985-86, more than 32 years after service separation, when bilateral sensorineural hearing loss was found in a VA audiological examination, and it was recommended that the veteran be fitted with hearing aids. A September 1986 private audiological examination found the veteran's hearing loss to be progressive in nature, and "in all medical probability is a result of noise exposure." CONCLUSION OF LAW Bilateral hearing loss was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(b), 3.303(d), 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b) (1994). 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, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Fed. Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). In order to establish service connection for hearing loss, these hearing loss thresholds must currently be met, and all the evidence of record, including that pertinent to service, must demonstrate that a current hearing loss was incurred as a result of service. Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992); 38 C.F.R. § 3.303(d) (1994). On the most recent authorized Department of Veterans Affairs (VA) audiological evaluation in July 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 80 85 95 LEFT 20 15 55 55 55 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 94 percent in the left ear. From these testing results, it is clear that the veteran currently suffers from a bilateral hearing disability which is moderate to severe. After review of the entire record, however, we cannot conclude that his current bilateral hearing loss is attributable to service. The veteran contends that his current hearing loss is attributable to an incident during his training to be an Infantryman while stationed at Fort Leonard Wood in 1952. He asserts that another individual opened fire with a .50 caliber machine gun nearby during a training exercise, and that he subsequently suffered from headaches, as well as ringing and pain in his ears. He also states that he was exposed to loud noise as a result of heavy equipment operation during service. He notes that he sought treatment for these complaints both at Fort Leonard Wood, and again at Oaklawn Army Hospital in California in 1953, and that he has suffered from periodic ear problems ever since. Service medical records for the majority of the veteran's nine months of service are not available, and the National Personnel Records Center has indicated that these reports may have been destroyed in the fire which partially consumed its storage facility in St. Louis, Missouri, in July 1973. The record does contain, however, the veteran's separation examination report and personal history, dated in July 1953. At that time, he noted a history of "ear trouble," but did not specify any particular complaints. The examination found that he could hear both whispered and spoken voices at fifteen feet, and noted no physical abnormalities. Although the veteran did give a history of "ear trouble" at service separation, consistent with his subjective history of exposure to loud gunfire in service, we also note that any complaints in service appear to have been acute and transitory in nature, inasmuch as no abnormal findings were made at the service separation examination, and he did not complain of any headaches, pain, ringing in the ears, or other symptoms at the time. Moreover, no further treatment or complaints are shown until 1985-86, when the veteran was found to suffer from bilateral sensorineural hearing loss in a VA auditory evaluation conducted in association with surgery to be performed for a heart condition. A September 1986 private auditory examination conducted by Dr. Graves, also noted a "very significant" binaural hearing impairment, for which it was recommended that he protect his ears from loud noise exposure. Dr. Graves indicated, however, that the veteran's hearing loss would progress despite such protective measures, and that this disability was "in all medical probability" due to noise exposure. The veteran has himself indicated in sworn testimony and in written letters that his hearing problems were not found until 1985 or 1986, when he underwent triple bypass surgery at the VA Medical Center in Birmingham, Alabama. He nevertheless contends that he constantly suffered symptoms of pain, itching and progressive hearing loss subsequent to separation which arose in service. He also contends that the physical examination given at discharge was not thorough, and should have detected his hearing loss and other auditory problems. He avers that he was basically asked a few questions about venereal disease or other illnesses, and then asked to sign his name to the final report. We note, however, that upon a complete review of the examination report, the veteran's contentions with regard to his separation examination are not substantiated. Not only was his hearing tested through spoken and whispered voice testing, which was the usual means of evaluating hearing acuity at the time, but he also underwent evaluation for color blindness, blood pressure, chest inspiration and expiration, vision, and was also afforded both urine and blood tests. It appears that the separation examination was not the cursory event of which he has complained. Moreover, we find that the veteran's assertions with regard to the etiology of his hearing disability remain speculative, and that the credibility of his subjective history and contentions is questionable. First we note that the veteran has a history of exposure to loud noise in addition to that alleged during service. He was employed for several years after service at a stainless steel factory, and worked as welder in various other industrial capacities for many years. He has also stated that one of his primary hobbies is hunting. With his continuous participation in such activities for many years, coupled with the absence of any treatment for more than 30 years after service, the veteran's assumption that his current bilateral hearing disability arose from incidents in service is wholly speculative. Second, and more importantly, in a letter received in February 1986, he indicated that he had difficulty remembering what happened 35 years ago, and should not be expected to remember such events in light of his tenth grade education. He could not even recall whether he had sought any medical treatment for his claimed disability in the years between 1953 and 1985, but stated that the VA should be able to reach a positive conclusion despite the absence of such evidence. We cannot make such positive conclusions, however, where the separation examination report shows no hearing loss, where the record is silent for additional treatment or symptomatology for more than 30 years, where the veteran has a stated history of exposure to loud noises subsequent to service, and where the veteran himself questions his own ability to adequately recall the events surrounding the history of his disability. Despite the vehemence of the veteran's allegations, the record contains no probative and credible medical evidence which supports these contentions. Although the July 1993 VA examiners do state that the veteran currently suffers from bilateral hearing loss resulting from exposure to loud noise, we note that the only etiology noted is the subjective history given by the veteran. No reference is made to other noise exposure subsequent to service, as is noted in the remainder of the record. Thus any conclusions drawn with regard to the cause of the veteran's current hearing loss are entitled to little probative weight, inasmuch as these findings can be no better than the history proffered by the veteran. See Swann v. Brown, 5 Vet.App. 229, 233 (1993). Although the veteran contends that all benefit of the doubt should be accorded to his claim, that doctrine does not apply in this case, inasmuch as a relative balance of positive and negative evidence has not been presented. The record simply fails to demonstrate that his current bilateral hearing disability has been chronic or continuous since service separation, or is attributable to any alleged incident in service. Thus entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.303(d), 3.385 (1994). (CONTINUED ON NEXT PAG ORDER Entitlement to service connection for bilateral hearing loss is denied. JACK W. BLASINGAME 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.