BVA9503718 DOCKET NO. 93-06 536 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from October 1956 to September 1958. The issue of service connection for an ear infection was also adjudicated by the regional office (RO) and discussed in the June 1992 statement of the case. It does not appear, however, that the veteran has raised that issue, and in the September 1992 substantive appeal the veteran stated that he did not have an ear infection. As such, this issue is not before the Board of Veterans' Appeals (Board). In a November 1994 letter, the Board furnished the veteran's representative with copies of the medical literature cited in this decision in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993). The veteran's representative responded in a December 1994 statement that "[a]t this time the veteran has no additional evidence, argument or comments to make . . . ," and reiterated argument contained in a March 1993 statement. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred a hearing loss during active service. He argues that while at Fort Bliss, Texas, he was trained to use a rocket launcher from his left shoulder which resulted in a greater hearing loss in his left ear than his right ear. He asserts that a doctor told him that the extreme hearing loss in his left ear, 72 percent, and the loss in his right ear, only 12 percent, are uneven enough to indicate an injury to the left ear. The veteran also contends that he sought medical attention at the time of the injury. 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 service connection for hearing loss and an ear disorder. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Any hearing loss that the veteran may have experienced during service was acute and transitory; a permanent, or chronic, bilateral hearing loss was not shown until many years after service separation, and is etiologically unrelated to active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor can sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. The Department of Veterans Affairs (VA) has a statutory obligation to assist the veteran in the development of facts pertinent to the claim. Id. The service medical records are not available, having been destroyed by the 1973 fire at the National Personnel Records Center (NPRC). The VA must place an increased emphasis on the duty to assist in cases where service medical records are not available. See Dixon v. Derwinski, 3 Vet.App. 261 (1992) (where a denial of a veteran's claim rests, in part, on the government's inability to produce records that were once in its custody, an explanation of the reasonableness of the search conducted and why further efforts are not justified is required). See also Moore v. Derwinski, 1 Vet.App. 401 (1991) (duty to assist is particularly great in light of the unavailability of service medical records). In November 1991, the veteran completed an NA Form 13055 (Rev. 1- 90), Request for Information Needed to Reconstruct Medical Data, wherein he had an opportunity to provide detailed information about his service. NPRC noted in April 1992 that its searches for the veteran's records were unsuccessful. Records for veterans, such as the appellant, who were separated from the U.S. Army but who were not retired and did not have a reserve obligation, are stored at NPRC. The search requested by the VA, and the request to the veteran for clarifying information regarding his service, constituted a reasonable search for records pertaining to the veteran. On appellate review, we see no areas in which further development might be fruitful. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991). Where a veteran served continuously for 90 days or more during peacetime, and a sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). For the showing of 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) (1993). On a private audiological evaluation in July 1969, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 10 10 15 LEFT -5 5 25 30 30 On a separate private audiological evaluation in July 1969, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 10 10 20 LEFT 5 10 25 30 30 On a private audiological evaluation in September 1969, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 5 5 20 LEFT -5 10 25 30 25 On a private audiological evaluation in June 1972, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 10 15 20 25 LEFT 10 15 25 35 35 On a private audiological evaluation in May 1976, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 30 35 30 LEFT 10 35 35 40 45 On a private audiological evaluation in January 1980, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 35 35 40 LEFT 15 45 50 45 50 On a private audiological evaluation in February 1980, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 35 30 40 35 LEFT 15 40 50 45 45 On a private audiological evaluation in December 1984, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 45 45 45 LEFT 30 60 45 50 50 On a private audiological evaluation in July 1985, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 50 50 50 50 LEFT 35 65 60 55 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 76 percent in the left ear. Dennis L. Burrows, M.A., CCC-A, reported as history that the veteran reported difficulty hearing from distances and in crowded rooms, and that there was no family history of otological problems. Mr. Burrows reported that pure tone results revealed a mild to moderate sloping sensorineural hearing loss in the right ear and a mild to moderately severe sloping hearing loss in the left ear. On a private audiological evaluation in August 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 55 60 60 LEFT 65 65 60 55 60 R. Stanley Baker, M.D., in a statement dated in August 1991, noted that the audiometric evaluation documented a significant hearing loss, which neuro-otologic evaluation allowed to be localized at the inner ear. He noted that pure tone audiometric evaluation revealed a binaural hearing impairment of 40.3 percent. He further noted that his calculations did not take into account the impairment in speech discrimination in the left ear which would impair but not preclude rehabilitation by hearing aid fitting. A treatment record dated in August 1991 provided by Dr. Baker revealed that the onset and symptoms of a hearing loss were noticeable gradually over an eight to ten year period, and that the veteran had been aware of an asymmetry to the hearing for about eight years with no apparent cause. Dr. Baker reported a history of high speed centrifuge exposure which was not asymmetric. He reported no other significant otoneurologic symptoms but, because of the discrimination deficit, he obtained auditory brain responses which were adequate to rule out retrocochlear cause. He stated that the basic ear, nose, and throat examination was normal except for a nasal deformity. Dr. Baker also noted that the veteran had occasional tinnitus and vertigo when looking up and nausea when working under a car. Noise exposure was also noted. Service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service- connected when the thresholds for the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. § 3.385 (1993). As noted above, the veteran's service medical records are not available. Additionally, it is noted that the veteran indicated in his November 1991 request for Information Needed to Reconstruct Medical Data that he was not seen for his ear problems while he was in service, although in his substantive appeal he stated that he felt that the VA was incorrect in stating that he did not go to the infirmary during service. The first clinical evidence after service separation regarding a hearing loss in the left ear is the July 1969 private audiometric examination. For the right ear, the first clinical evidence of a hearing loss after service separation is the June 1972 private audiometric examination. See Hensley v. Brown, 5 Vet.App. 155 (1993) (threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The pure tone thresholds recorded at the May 1976 private audiological evaluation meet the criteria of 38 C.F.R. § 3.385 (1993) for each ear, and, therefore, the veteran has a current hearing loss for VA compensation purposes. However, there is a separation of over ten years from service separation in September 1958 and the first clinical evidence of record in July 1969 of a left ear hearing loss. Similarly, there is a separation of over 13 years from service separation to the first clinical evidence of record in June 1972 of a right ear hearing loss. Moreover, Dr. Baker reported in an August 1991 clinical record that the veteran had been aware of an asymmetry to his hearing for about eight to ten years prior to that clinical record with no apparent cause. This would place the veteran's awareness of an asymmetry in his hearing in approximately the early 1980's, as opposed to active service in the late 1950's when, the veteran alleges, his hearing loss resulted from exposure to weapons firing. In addition, when the history was recorded, "no apparent cause" was reported. Medical literature states that exposure to noises of sufficiently high intensity may result in a temporary or permanent hearing loss. 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 "characteristically instantaneous." In contrast, the onset of noise-induced hearing loss is characteristically "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 & J. Jerger, Auditory Disorders: A Manual for Clinical Evaluation 119-23 (1981). Therefore, one could reasonably expect a chronic, or permanent, hearing loss due to such noise exposure during service to have been noted during service or in close proximity to service. The record does not include evidence of a chronic, or permanent, hearing loss closely proximate to the alleged in- service acoustic trauma or noise exposure. While a bilateral hearing loss is currently demonstrated for VA purposes, the preponderance of the evidence of record is against the claim for service connection. The service medical records are absent and therefore cannot substantiate a hearing loss during service, and the record does not contain documentation regarding a hearing loss within one year of service separation. The first clinical evidence of a permanent or chronic hearing loss in the left ear is over ten years after service separation, and for the right ear over 13 years after service separation, and the record contains no medical evidence linking the post-service hearing loss to active service. The evidence indicates that any hearing loss that the veteran may have experienced on a firing line in service was acute and transitory. This conclusion is supported by the history recorded in 1991 that the veteran's hearing loss had been noticeable for eight to ten years and that there was no apparent cause. The veteran's assertion that a doctor told him that the hearing loss in his left ear is such that it could indicate an injury to that ear is insufficient to relate any such injury to service, given the remainder of the evidence of record. It is the determination of the Board that the preponderance of the evidence is against service connection for bilateral hearing loss. ORDER Entitlement to service connection for bilateral hearing loss is denied. WILLIAM J. REDDY 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.