Citation Nr: 0006146 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-24 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from January 1962 to December 1964, and from April 1981 to April 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1993 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board. By decision in November 1998, the Board determined that the veteran's claim had been reopened, and the case was remanded for additional development. FINDING OF FACT The veteran's current hearing loss is no causally related to his active military service. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that this appeal was previously before the Board and denied in a July 1997 BVA decision. The veteran submitted a request to reopen his claim for service connection, and in November 1998 the Board determined that new and material evidence had been presented to reopen the claim. The Board also determined that the claim was well- grounded, and the matter was remanded for additional development. The requested development has been completed, and the Board finds that the duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a). Essentially, the veteran claims that he currently has hearing loss as a result of an incident during his second period of active military service, in 1983, when he sustained a gunshot wound to the right temple. As such, he maintains that service connection for hearing loss is warranted. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The mere fact of an in-service injury is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). At this point, the Board notes that 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, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A review of the veteran's claims file reveals that his original claim for service connection for hearing loss was received in May 1984. At that time, the veteran indicated that he was seeking service connection for hearing loss, due to an incident that occurred in 1983. In a January 1995 hearing at the RO, the veteran clarified that the 1983 incident involved a gunshot wound. Although the Board acknowledges that the veteran is claiming service connection based on an incident in 1983, the Board has reviewed the veteran's entire record. The veteran's service medical records from his first period of military service, January 1962 to December 1964, are negative for any evidence of complaints or findings of hearing loss. Following that period of service, the record reveals that in 1972, the veteran sustained a gunshot to the head that resulted in a skull fracture and contusion, but there was no evidence of resulting hearing loss. Private medical records from Barnes Hospital, dated in July 1983, reflect that the veteran was treated for a gunshot wound to the right temple, specifically, the pre- auricular/temporal area. It was noted that the veteran reported no decreased hearing at that time, and his hearing was described as within normal limits, although there were some metal fragments in the ear canal. Reviewing the veteran's service medical records from his second period of service, April 1981 to April 1984, those records also reflect hearing within normal limits. A record dated in August 1983, reveals that two weeks earlier the veteran had a hand gun fired next to his right ear, while he was on leave. The veteran complained of vertigo, but there were no complaints or findings of hearing loss. Further examination in September 1983, revealed some metal fragments in the external right ear canal, but there was no evidence of hearing loss. Audiometric evaluation conducted in March 1984 revealed all auditory thresholds at the applicable frequencies to be in the 0 to 10 decibel range, and speech recognition was reported to be 96 percent in each ear. The veteran's service separation examination report, dated in May 1984, is negative for any findings of hearing loss. Audiometric testing showed auditory thresholds at the applicable frequencies to be in the 0 to 10 decibel range. In March 1985, the veteran underwent a VA examination. No audiometric testing was accomplished, and the examiner noted that the claims file was not available. The reported diagnosis was bilateral neurosensory hearing loss. In a September 1986 VA examination report, the veteran was diagnosed with "bilateral neurosensory hearing loss, worse on the right side, dating back to a traumatic injury in 1982." Audiometric testing was not accomplished in connection with the September 1986 examination. Audiometric testing was accomplished in December 1986, and the examiner commented that all thresholds were within normal limits; speech discrimination was 98 percent in the right ear and 96 percent in the left ear. VA audiometric evaluations dated from March 1992 to January 1994, are for the most part negative for any hearing loss. However, a January 1994 audiometric evaluation reflected auditory thresholds of 25, 25, 30, and 40 at the 500, 1000, 2000 and 4000 Hertz levels, which meets the criteria under 38 C.F.R. § 3.385 for impaired hearing as a disability. Private medical records from Joel A. Goebel, M.D., including a June 1994 audiological report, appear to show normal hearing except for at the 6000 Hertz level in the right ear. Records from the Social Security Administration, received in November 1996, are negative for any evidence of hearing loss. Following the November 1998 BVA remand, the veteran presented private medical records from Sheldon L. Davis, M.D., dated in February 1999, which noted hearing within normal limits. That same month, the veteran underwent an additional VA audio examination and was diagnosed with a mild to moderate, high frequency sensorineural hearing loss in the right ear. Auditory thresholds were 15, 10, 15, 25, and 35 at the 500, 1000, 2000, 3000, and 4000 Hertz levels. Left ear hearing was within normal limits. Speech recognition was described as "excellent" in both ears. In a March 1999 addendum to the February 1999 VA examination report, the examiner concluded that "the veteran's hearing loss in the right ear was acquired after his military service." The examiner acknowledged both of the veteran's periods of active service, and also noted gunshot wounds sustained by the veteran in 1972 and 1983. The examiner pointed out that the veteran underwent several audiological examinations after the second gunshot incident, but his hearing was consistently within normal limits. Additionally, the examiner noted that on the veteran's discharge examination report, he checked "no" for hearing loss. The examiner stated that based on the record, "it is clear that the veteran left the military with hearing within normal limits with no signs that could link the hearing loss found on [the February 1999 examination]." After reviewing the totality of the evidence, the Board concludes that the preponderance of such evidence is against entitlement to service connection for hearing loss. While it appears that some examiners have reported high frequency sensorineural hearing loss, the various audiometric studies do not support such a conclusion. Moreover, the March 1999 opinion by a VA examiner clearly negates a relationship between any current hearing loss and an incident of the veteran's active military service. The Board finds this VA examiner's opinion to be highly persuasive in view of the fact that he appears to have reviewed the veteran's medical and military history, and also examined the veteran for current signs of hearing loss. The Board does not dispute that the veteran may currently have some current hearing loss; however, the Board is simply not persuaded by the evidence of record that any current hearing loss is due to the 1983 gunshot incident, as the veteran maintains, or any other incident of military service. The March 1985 diagnosis of bilateral neurosensory hearing loss as well as the September 1986 VA diagnosis, which reflects bilateral neurosensory hearing loss to a traumatic injury in "1982" are not accompanied by any supporting clinical findings or audiometric testing. These reported diagnoses appear to be based in large part on history furnished by the veteran. Moreover, other examinations, including several accomplished in service just after the 1983 gun fire incident, are all negative for clinical or audiometric evidence of hearing loss. In any event, the Board finds that more weight should be placed on the March 1999 VA examiner's opinion, which negates a causal relationship between any current hearing loss and the veteran's military service. See Guerreri v. Brown, 4 Vet. App. 467, 470-471 (1993) (it is within the province of the Board to assess the credibility and weight to be attached to medical evidence). This opinion is overwhelmingly supported by numerous audiometric tests over the years which do not show evidence of hearing loss until the 1990's. At this point, the Board notes that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary). However, in the present case there is no inservice evidence of any upward shift in tested thresholds in service to suggest any loss of hearing acuity due to acoustic trauma. The lack of any evidence of any diminished hearing acuity during service further supports the VA examiner's opinion that there is nothing to link the veteran's current hearing loss to service. The Board acknowledges the 1983 gun shot incident as well as the medical evidence of current hearing loss. However, the VA examiner's 1999 opinion is supported by vast majority of other medical reports of record. In short, for the reasons above, the Board concludes that the preponderance of the evidence is against a finding that the veteran's hearing loss is related to his military service. As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the provisions of 38 U.S.C.A. § 5107(b) are not applicable, and the appeal as to this issue is denied. ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals