BVA9504086 DOCKET NO. 90-19 629 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: William A. L'Esperance, Attorney WITNESS AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from November 1941 to September 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an April 1987 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Albuquerque, New Mexico, which denied the veteran's claim for entitlement to service connection for bilateral hearing loss. In a decision dated in July 1990, the Board denied service connection for bilateral defective hearing. By means of a single judge Memorandum Decision in September 1991, the Board decision was summarily affirmed. The veteran filed a motion for review by a panel which was granted. On Appellant's Motion for Review, in [citation redacted], the United States Court of Veterans Appeals (the Court) vacated the Board's decision and remanded the case to the Board for additional development in accordance with the Court's decision. The case was returned to the Board in March 1993, at which time the Board remanded the case to the RO for additional information. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the regional office committed error in denying entitlement to service connection for bilateral defective hearing in that such disability had its origin during his period of active military service. He specifically asserts that his current hearing loss is the result of repeated exposure to artillery and mortar fire in World War II. Although the veteran's service medical records did not record a hearing loss, the veteran requests that, based on the provisions of 38 U.S.C.A. § 1154 (West 1991) and 38 C.F.R. § 3.304(d) (1994), service connection be granted for his bilateral hearing loss. 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 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 service connection for 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 agency of original jurisdiction. 2. Bilateral defective hearing is not shown to have been present in service. 3. A bilateral sensorineural hearing loss is not shown to have been present during the first year following service discharge. 4. A bilateral sensorineural hearing loss is not shown to have been present in 1953 when the veteran underwent a comprehensive VA Compensation and Pension physical examination. CONCLUSION OF LAW Bilateral defective hearing was not incurred in or aggravated by active military service, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.304(d), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, we note that we have found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and Murphy V. Derwinski, 1 Vet. App. 78 (1990). That is, we find that he has presented a claim that is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). To establish entitlement to service connection generally requires that it be shown that a disease or injury causing current disability was incurred in service or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Moreover, service connection for a sensorineural hearing loss may be established on a presumptive basis where that disorder is shown to have been compensably manifested within one year following service separation. In the present case, the veteran served on active duty from November 1941 to September 1945. Upon separation from active duty, whispered voice hearing test found his hearing to be 15/15, bilaterally, which was indicative of normal hearing. Two years after his discharge, a Dr. O. B. Crocker saw the veteran, who noted that the veteran had "normal" hearing. Letter from Dr. O. B. Crocker, May 26, 1947. The veteran then applied for VA benefits in 1953. VA Form 8-526, Veteran's Application for Compensation or Pension, January 7, 1953. In conjunction with that application, the veteran underwent a VA Compensation and Pension Examination on May 21, 1953. At that time, he did not complain of hearing loss or ringing of his ears. The examining physician noted that the veteran's hearing was within normal limits. The veteran first complained of bilateral hearing deficiencies in March 1987. This was forty-two years after his discharge from the Army, and thirty-four years after his last VA medical examination. The RO denied service connection and the veteran did not appeal that decision. One year later, the veteran again applied for VA benefits for the hearing loss. In support of his claim, he submitted an audiolgoical evaluation and a statement from a physician. Family Hearing Center Audiological Evaluation, February 14, 1990; Statement from Dr. Jean Dugas, March 2, 1990. The audiological evaluation did indeed show that the veteran was suffering from bilateral hearing loss. Moreover, the physician's statement stated that the veteran was suffering from profound bilateral sensorineural hearing loss and that possibly said loss could be attributed to his military service. The veteran also submitted statements from a member of his military unit, his wife, and his son. These statements were to the effect that the veteran was exposed to repeated noise, and that his hearing was impaired. Additionally, the veteran provided testimony before a hearing officer at the RO. RO Hearing Transcript, November 16, 1993. During said hearing, the veteran reiterated his contention that the repeated firing of mortar rounds caused his bilateral hearing loss. The Court, in its decision [citation redacted], remanded this case to the Board for the following purposes: (1) The Board was to obtain additional medical information that reportedly showed the veteran's bilateral hearing loss in 1959. (2) The Board was to discuss whether the veteran qualified for service-connected benefits via 38 U.S.C.A. § 1154 (West 1991) and 38 C.F.R. § 3.304(d) (1994). (3) The veteran was to be examined at a VA facility for the purposes of determining the nature and extent of his bilateral deficient hearing. The Court noted that the VA had a duty assist the veteran in obtaining medical records that possibly documented his bilateral hearing loss. See White v. Derwinski, 1 Vet.App. 519, 521 (1991); Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1991). To fulfill its duty to assist, the Court stated that the VA should attempt to obtain and associate with the claims folder all records for the veteran from the Lovelace Clinic for A.C.F. Industries for the atomic energy program. The RO attempted to comply with this order from the Court, and contacted the Lovelace Clinic in April 1994. See VA Form 119, Report of Contact, April 4, 1994. Personnel at the clinic informed the RO that a fire had occurred at the clinic in February 1988, and that the veteran's records were probably destroyed. In other words, the clinic had no record of treatment for the veteran. Although there are no records available, the Board is satisfied that the VA has met its obligation to assist the veteran in obtaining additional information in support of his claim. The Court has further stated that the provisions of 38 U.S.C.A. § 1154 (West 1991), and 38 C.F.R. § 3.304 (1994), may apply to the present case. These regulations and statutes state that where a veteran is seeking service connection for any disability, due consideration is to be given to the places, types, and circumstances of the veteran's service. Further, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence should be accepted as sufficient proof of service connection for any alleged disease or injury, if consistent with the circumstances, conditions, or hardships of such service. In this regard, it should be noted that, besides those of the veteran, all statements and testimony currently of record in the veteran's claims folder are dated no earlier than 1993 - forty- eight years after the veteran's separation from service. These statements are to the effect that the veteran had normal hearing before service, a point that is not in dispute. The statements then attest to the fact that the veteran had hearing difficulties on his return from service. The Board believes that the recollections and statements were given in good faith. However, in evaluating the veteran's claim, we have given considerable weight to the actual service records and the clinical data, which showed normal hearing both in 1945 and 1953. Clinical information is far more probative than a statement based on remote memories by friends and family of the veteran. Furthermore, the earliest indication of a hearing loss was not until the veteran filed his initial claim in 1987. It is our opinion that had a hearing loss been present and progressing ever since service, it should have been documented by contemporaneous data sooner than forty-two years after the veteran's discharge from active service, as is the case here. Included in the claims folders were two opinions concerning the etiology of the veteran's bilateral hearing disability. These statements were provided by Doctors Jean Dugas and B. Rappaport - November 11, 1993, and September 28, 1993, respectively. The second statement was obtained in accordance with the directions given by the Court from a VA examiner after he examined the veteran. Both statements, and the conclusions therein, were based upon the history provided by the veteran, and not based on personal observations during the critical time in question. While both examiners speculated that noise exposure might have caused the veteran's hearing loss while in the military, there were no records of testing accomplished by the specialists that would substantiate their conclusions. In evaluating the veteran's claim we have placed considerable weight on the actual service records, the contemporaneous medical documentary records, and the medical data obtained in 1947 and 1953. The Board believes that this clinical information is far more probative than the unsubstantiated diagnoses of the examiners who saw the veteran forty-seven plus years after the supposed noise exposure. In other words, the examiners based their conclusions solely on the history given by the veteran, rather than upon an objective review of the record. These diagnoses, therefore, can be no better than the facts alleged by the claimant, and may be accorded little weight with regard to the causation of the veteran's current disability. Swann v. Brown, 5 Vet.App. 229, 233 (1993). Moreover, the Board finds it difficult to imagine more equivocal statements. The Court made it clear in Tirpak v. Derwinski, 2 Vet.App. 609 (1992) and Gabbard v. Derwinski, No. 90-1463, (U.S. Vet. App. Sept. 21, 1992), that medical possibilities and unsupported medical opinions carry negligible probative weight. Additionally, the Court in Tirpak further commented that medical evidence which merely indicates that the alleged disorder "may or may not" exist, is too speculative to establish the presence of the disorder claimed. Therefore, we find the statements by the examiners not to be persuasive. In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). It is our opinion that the preponderance of the evidence is against the veteran's claim, and, accordingly, we are unable to render a decision favorable to the veteran. That is, the Board is unable to associate the veteran's current hearing loss, first persuasively documented many years following service discharge, with any incident of his period of active military service. Consequently, we are unable to reach a favorable decision in this case. The veteran may contend his case is no different than that decided by the Court in Hensley v. Brown, 5 Vet.App. 155 (1993), or Ledford v. Derwinski, 3 Vet.App. 87 (1992). We disagree. In those cases, the Court stated that the criteria of 38 C.F.R. § 3.385 applied when establishing service connection for a hearing loss. Per this regulation, to establish the existence of a current disability, the veteran's hearing status must meet the pure tone and speech recognition criteria. The criteria states that at least one of the threshold pure tone levels at 500, 1000, 2000, 3000 or 4000 Hertz, must measure more than 40 decibels, or at least three of these five threshold levels must measure more than 25 decibels, or speech recognition must be lower than 94 percent. Additionally, the evidence must establish that the current hearing loss was incurred in service. Moreover, if the veteran had "normal" hearing upon his discharge, but developed hearing loss measurably to the criteria stated above, and if he was able to establish a causal relationship between his hearing loss and service, service connected benefits would be granted. In this situation, the veteran did not undergo, at the time of his discharge, an audiological hearing test which would measure whether he had hearing loss at any particular Hertz. Moreover, a speech recognition test was not conducted. However, when the veteran did apply for benefits in conjunction with this appeal, he did present audiological tests which established the existence of a current disability. Yet, as discussed above, he has not presented evidence which would etiologically link his current disability with service. Therefore, establishment of service connection may not be granted via 38 C.F.R. § 3.385 (1994). ORDER Entitlement to service connection for bilateral defective hearing is denied JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.