Citation Nr: 0003761 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 96-27 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from April 1956 to May 1959. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) San Diego Regional Office (RO) May 1995 rating decision which denied service connection for a bilateral hearing loss. FINDING OF FACT The medical evidence of record does not show that the veteran's bilateral hearing loss had its onset during his period of service; nor was his bilateral hearing loss evident to a compensable degree within the year following his separation from service. CONCLUSION OF LAW The veteran's bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim of service connection for a bilateral hearing loss is well grounded pursuant to 38 U.S.C.A. § 5107(a), as it is plausible under the circumstances of this case. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran contends that he has a bilateral hearing loss which results from noise exposure sustained during his period of service. His claim is well grounded, i.e., plausible, as the record includes private and VA audiological evaluation reports showing that he has a bilateral hearing loss for VA compensation purposes, and a private medical statement wherein his bilateral hearing loss is related to inservice noise trauma. The Board is also satisfied that all relevant facts have been properly developed with respect to his claim, and that no further assistance to the veteran is required in order to comply with the VA duty to assist him in developing his claim. 38 U.S.C.A. § 5107(a) (1999). Service connection may be granted for a disability resulting from a chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection may also 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) (1999). For the showing of a chronic disease in service there is required 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." Continuity of symptomatology is required where the condition noted during service 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) (1999). Service connection may also be allowed on a presumptive basis for certain disabilities such as organic diseases of the nervous system ( sensorineural hearing loss), if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether the veteran's impaired hearing amounts to a disability for VA compensation purposes 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. If the record shows evidence of inservice acoustic trauma and inservice audiometric results indicate an upward shift in tested thresholds, and if postservice audiometric testing results meet the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the postservice findings to injury in service, or whether they are more properly attributable to intercurrent causes. Hensley, 5 Vet. App. at 159. A review of the veteran' service medical records discloses that, at the time of his April 1956 service entrance medical examination, a clinical evaluation of his ears revealed normal findings, and that 15/15 hearing was recorded, bilaterally, on both whispered and spoken voice testing. In the accompanying Report of Medical History, he reported that he had not had any ear trouble. The remainder of these records do not disclose any report or clinical finding of a bilateral hearing loss. The veteran's service personnel records do not show that he was treated for a bilateral hearing loss during his period of service. On VA medical examination in August 1959, a clinical evaluation of the veteran's ears did not reveal any significant abnormalities. Private billing records, dated from May 1987 to December 1988, from A-Adams Hearing Aid Center, show that the veteran was issued hearing aids. Private medical records, dated from May 1987 to December 1993, from G. S., M.D., show that the veteran was afforded five audiological examinations during this period. A May 1987 audiological examination report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 20, 15, 45, 65 and 80, respectively, in the right ear, and 20, 30, 50, 60 and 65, respectively, in the left ear. A December 1988 audiological examination report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 25, 30, 40, 70 and 90, respectively, in the right ear, and 25, 40, 55, 70 and 65, respectively, in the left ear. An August 1989 audiological examination report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 35, 35, 45, 75 and 100, respectively, in the right ear, and 25, 45, 60, 70 and 70, respectively, in the left ear. A June 1992 audiological examination report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 40, 100, 115, 120+ and 120+, respectively, in the right ear, and 35, 65, 90, 90 and 95, respectively, in the left ear. The impression was that the veteran had a mild sloping to profound hearing loss of both ears. A September 1992 audiological examination report shows that the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 35, 90, 85, 100 and 100, respectively, in the right ear, and 35, 45, 85, 85 and 85, respectively, in the left ear. In a September 1993 letter, an employee of A-Adams Hearing Aid Center reported that the veteran had a profound bilateral hearing loss. She also reported that the veteran had been fitted for hearing aids. On VA audiological evaluation in August 1994, the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 75, 95, 100, 110 and 110, respectively, in the right ear, and 65, 95, 105, 110 and 110, respectively, in the left ear. Speech discrimination was 0 percent in the right ear, and 8 percent in the left ear. The impression was that the veteran had a mild to profound sensory motor bilateral hearing loss. In a November 1994 letter, Dr. S. indicated that the veteran's hearing ability was nearly non functional and disabling in nature. In a statement received in June 1996, the veteran's sister indicated that she had noticed that the veteran's ability to hear had decreased after his discharge from the Navy in 1959. At his hearing before the undersigned in May 1997, the veteran testified that he had served on an enclosed 5 inch gun mount aboard the U.S.S. Weis in 1956. He also testified that his duties required him to go inside the gun mount while it was firing. He reported that the sound inside the gun mount was deafening and that, every time he went to general quarters, his ears rang and he was unable to hear anything for at least an hour. He indicated that he did not report his loss of hearing in service because he was young and did not want to hurt his image. He reported that he was not exposed to any loud noises following his service separation. He indicated that he began to wear hearing aids in 1989. The veteran then showed the undersigned pictures of him aboard his ship. In a statement received in May 1997, Dr. S. reported that the veteran had sustained significant noise trauma in 1956. Dr. S. also reported that the veteran's hearing loss was probably caused by this noise trauma. In a May 1997 statement, the veteran's friend indicated that, after the veteran was discharged from the Navy in 1959, he was unable to hear her whenever she called his name. She also indicated that the veteran's parents had told her that something had happened to the veteran's hearing while he was in the Navy. She reported that she had renewed her friendship with the veteran 15 years earlier and that, as a nurse, she noticed that he had to read her lips. She also reported that the veteran's hearing loss was almost total. On VA audiological evaluation in April 1999, the veteran's auditory thresholds at 500, 1,000, 2,000, 3000 and 4,000 Hertz were 85, 105, 115, 120+ and 120+, respectively, in the right ear, and 75, 115, 120, 120+ and 120+, respectively, in the left ear. Speech discrimination was 0 percent, bilaterally. The diagnosis was severe to profound sensorineural hearing loss in both ears with negligible speech discrimination. The examiner reported that Dr. S had not substantiated his claim that the veteran's hearing loss had had its onset in 1959. The examiner also reported that there was absolutely no evidence that the veteran's hearing loss occurred during his period of service. On the basis of the foregoing, the Board finds that the preponderance of the medical evidence is against the veteran's claim of service connection for a bilateral hearing loss. As noted earlier, to establish service connection, the evidence must show that the veteran's bilateral hearing loss was incurred in service or manifest to a compensable degree within the one year following his service separation. In this case, his service medical records are bereft of any report or clinical finding of a bilateral hearing loss. The Board notes that the postservice private and VA audiological evaluation reports beginning in 1987 all reflect that the veteran had bilateral auditory threshold levels in excess of 40 decibels. As such, these reports show that he had a bilateral hearing disability pursuant to 38 C.F.R. § 3.385. However, it is observed that these findings were made no earlier than 28 years after his service separation. Moreover, none of these records during the initial treatment demonstrate that his bilateral hearing loss was of service origin or manifest to a compensable degree within the one year following his service separation. The Board is aware that, in his May 1997 statement, Dr. S. indicated that the veteran's hearing loss was probably caused by inservice noise trauma. As noted above, this opinion is sufficient to render the veteran's claim plausible. In determining that the appellant's claim is well-grounded, the credibility of evidence has been presumed and the probative value of the evidence has not been weighed. However, once the claim is found to be well grounded, the presumption that it is credible and entitled to full weight no longer applies. That is, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991). An opinion that is against the veteran's claim was provided by the examiner who conducted the most recent VA audiological evaluation in April 1999. This examiner specifically commented that there was absolutely no evidence that the veteran's hearing loss occurred during his period of service. She also refuted Dr. S's May 1997 statement by asserting that he had not substantiated his claim that the veteran's hearing loss had had its onset in service. Given that the 1999 VA examiner had the opportunity to physical examine the veteran, record his history and review the claims file, this examiner's opinion is of greater weight than that of Dr. S. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, or based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). As noted above, the most recent VA audiological evaluation report specifically refutes the assertions contained in Dr. S's May 1997 statement and observes no rationale was provided to substantiate the opinion. With the 1999 VA examiner, knowledge following a longitudinal review of the claims file was utilized before forming an opinion. Consequently, the Board finds that the 1999 VA examiner's opinion is of far greater probative value than that of the private medical opinion. The Board has carefully considered the testimony of the veteran, as well as the statements from his sister and friend, regarding the etiology of his bilateral hearing loss. However, as a laypersons, they are not qualified to render such opinions as to a medical diagnosis, etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, the ultimate question pertinent to whether the veteran's hearing loss is related to service involves diagnosis and medical causation. Lay statements regarding whether a hearing loss disability for VA purposes is present or whether a hearing loss disability is related to service do not provide a basis for a grant of service connection. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Consequently, the Board finds that the preponderance of the evidence is against the claim for service connection for a hearing loss. In reaching its decision, the Board has considered the matter of resolution of the benefit of the doubt. However, application of the benefit-of-the-doubt rule is only appropriate when the evidence is evenly balanced or in relative equipoise. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). Such is not the case where, as discussed above, the Board has found that the weight of the evidence is against the claim. ORDER Service connection for a bilateral hearing loss ear is denied. M. SABULSKY Member, Board of Veterans' Appeals