BVA9501723 DOCKET NO. 93-22 310 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case had active service from November 1942 to October 1945. This appeal to the Board of Veterans' Appeals (Board) arises from a November 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes upon review of this case that, in a decision of December 1989, the Board denied entitlement to service connection for defective hearing. Since the time of that decision, the veteran has submitted additional evidence which, in the opinion of the RO, is new and material, and sufficient to a proper reopening of his claim. Accordingly, the Board will address the issue on appeal on a de novo basis. Finally, in September 1993, a hearing was held in St. Petersburg, Florida, before a traveling member of the Board. A transcript of that hearing is included in the veteran's claims file. The case is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran's argument is that the RO committed error in denying entitlement to service connection for bilateral defective hearing, in that such disability had its origin during the veteran's period of active military service. Specifically, it is asserted that the veteran's current hearing loss is the result of acoustic trauma sustained aboard various aircraft during World War II. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for service connection for bilateral defective hearing. FINDINGS OF FACT 1. Chronic defective hearing is not shown to have been present in service, or for many years thereafter; nor has it been shown to be the result of any incident or incidents of active military service. 2. A sensorineural hearing loss is not shown to have been present during the first year following service discharge. CONCLUSION OF LAW Chronic defective hearing was not incurred in or aggravated by active military service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.304(d), 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board has found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is 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). Entitlement to service connection generally requires that it be shown that a disease or injury was present in service, or, in the alternative, is the result of some incident or incidents of service, and has resulted in continuing or residual disability. 38 U.S.C.A. § 1110 (1991). Moreover, where a veteran served ninety (90) days or more during a period of war, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from 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 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). In the case of any veteran who has engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, there shall be accepted as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1993). In the present case, service medical records, including the veteran's service entrance and separation examinations, are negative for history, complaints, or abnormal findings indicative of the presence of defective hearing. While during the veteran's period of active service, he received treatment for what was described as a "ruptured eardrum," no hearing loss was in evidence. At the time of the veteran's service separation examination in October 1945, a physical examination of the ears was entirely within normal limits. Hearing for the whispered voice was 15/15 in each ear, and no pertinent diagnosis was noted. While in December 1954, the veteran's private physician, J. Dorris, M.D., wrote that he had treated the veteran "every 5 or 6 months" for the past five years for otitis media, this statement is devoid of any mention whatsoever of hearing loss. Moreover, such statement would place the origin of the veteran's post service ear pathology no earlier than 1949, four years following his discharge from service. The earliest objective indication of the presence of clinically identifiable defective hearing is revealed by a VA audiometric examination conducted in June 1990, approximately 45 years following service separation, at which time there was noted the presence of a bilateral sensorineural hearing loss. Based on such findings, and following a full review of the pertinent evidence of record, we are unable to reasonably associate the veteran's current hearing loss, first persuasively documented many years following service discharge, with any incident or incidents of his period of active service. Accordingly, we are unable to reach a favorable decision in this case. In reaching the above determination, we have given due consideration to the recent statement of the veteran's spouse to the effect that, following his discharge from service, she became aware of the veteran's "hearing problem." Such a statement, however, carries no particular weight when considered in light of the evidence as a whole. Moreover, the veteran's spouse lacks the medical expertise necessary to enter a judgment regarding the medical relationship between the veteran's hearing loss and any claimed inservice onset. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). We have further given due consideration to the veteran's testimony given at the time of a personal hearing in September 1993. Such testimony, while informative, is neither credible nor probative when considered in conjunction with the evidence as a whole. Rather, the majority of such testimony concerns episodes of otitis media and the previously-discussed "ruptured eardrum," neither of which serves to demonstrate the existence of chronic hearing loss in service. Accordingly, entitlement to service connection for defective hearing is not warranted. Finally, we wish to make it clear that we have given full consideration to the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1993), as those provisions pertain to veterans with combat service alleging disease or injury incurred or aggravated during such service. In the case at hand, however, any evidence of service-incurred hearing loss has been rebutted by clear and convincing evidence to the contrary. Specifically, service medical records reflect no evidence whatsoever of service-incurred hearing loss. Nor is there any evidence of hearing loss of any kind prior to 1990, 45 years following the veteran's separation from service. In light of this, and as noted above, following a full review of the pertinent evidence of record, the Board remains convinced that service connection for bilateral defective hearing must be denied. ORDER Service connection for bilateral defective hearing is denied. J. U. JOHNSON 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.