Citation Nr: 0003414 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-43 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD V.E. French, Associate Counsel INTRODUCTION The veteran served on active duty from November 1990 to June 1991, during which time he served in support of Operation Desert Storm. In addition, a 1991 DD 214 indicates that the veteran had an additional period of 1 year, 11 months, and 17 days of active service. From the record, it can be verified that he participated in active duty for training with National Guard, from December 1963 to May 1964 and from October 1986 to January 1987; however, no other specific dates of active duty or active duty for training are identified. The record also indicates a period in excess of 25 years of service with the Army National Guard. This appeal arises before the Board of Veterans' Appeals (Board) from a March 1994 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) in which service connection for bilateral high frequency sensorineural hearing loss was denied. This claim was remanded by the Board in March 1997, for the purpose of attempting to identify any additional periods of active service for the veteran and to obtain any existing service medical records corresponding to those periods. Having reviewed the record, the Board is satisfied that the required development has been completed to the fullest extent possible. FINDINGS OF FACT 1. A hearing loss disability, as defined for VA purposes, is initially shown in the record in 1972, or prior to a period of active duty for training (from October 1986 to January 1987) and the veteran's period of active service in support of Operation Desert Storm (November 1990 to June 1991). 2. The available medical evidence does not demonstrate a sustained or pathological increase in the veteran's hearing impairment during the period of active duty for training or the period of active service in support of Operation Desert Storm. 3. The record does not include objective medical evidence which suggests that the veteran's hearing loss disability, which pre-existed periods of active service and active duty for training, either increased in severity or worsened as a result of prolonged exposure to elevated noise levels therein. CONCLUSION OF LAW Sensorineural hearing loss, which pre-existed active service, was not aggravated therein. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 1991), 38 C.F.R. § 3.306 (1999). 7 REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. VA has a duty to assist the veteran to develop facts in support of a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1996) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). The veteran has not alleged, and the record does not indicate, the need to obtain any pertinent records which have not already associated with the claims folder. Thus, the Board finds that VA's duty to assist the veteran has been satisfied. According to 38 U.S.C.A. § 1110, 1131 (West 1991 & Supp. 1999), service connection may be granted for a disability if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For certain disabilities, including hearing loss, service connection may be warranted if the disability is manifested to a compensable degree within one year following the veteran's discharge from active service, based on application of the provisions pertaining to service connection on a presumptive basis which are found in 38 C.F.R. § 3.309 (1999). For the purpose 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 (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet.App. 268, 271 (1993); Hensley v. Brown, 5 Vet.App. 155, 163 (1993). Aggravation may not be conceded unless all the evidence of record pertaining to the manifestations of the disorder claimed to have been aggravated reflects that the disorder underwent an increase in severity. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (b) (1999). Evidence The record includes medical records from the time of the veteran's inactive duty with the Army National Guard and for the period of his active service during the Operation Desert Storm. At the time of a September 1963 enlistment examination, conducted just prior a period of active duty for training, an audiometry examination was not done and hearing acuity was recorded as 15/15 for whispered voice in each ear. With conversion to ANSI units, the audiometry findings at the time of the April 1964 separation examination show that puretone thresholds in the right ear of 25, 25, 10, 20, 20, and 25 decibels (dB) at frequencies of 250, 500, 1000, 2000, 4000, and 8000 Hertz (Hz), respectively. In the left ear, puretone frequencies were recorded as 20, 15, 10, 35, 35, and 35 dB at the same frequencies. A hearing loss disability, as defined for VA purposes, is first shown in the record in 1972, at the time of a medical examination conducted for National Guard purposes during the veteran's inactive duty status. The April 1972 examination report shows that puretone decibel thresholds in the veteran's right ear were recorded as 30, 20, 15, 15, 15, 40, 60, and 40 decibels (dB), at frequencies of 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hertz (Hz). In the left ear, puretone decibel thresholds were recorded as 15, 15, 15, 70, 70, 45, 70, and 45 dB in the same frequencies. Thereafter, the veteran's hearing loss is noted on reports of periodic medical examinations for National Guard purposes, also during inactive duty status. A 1976 examination report shows a notation of bilateral hearing loss, nerve deficit. An August 1979 examination report shows a notation of "bilateral hearing loss-longstanding." The report of an August 1987 quadrennial examination shows a notation of "hearing loss, left greater than right, neural, stable." The report of a September 1989 audiogram, conducted during inactive duty, shows pure tone decibel thresholds of 25, 15, 20, 70, and 70, and 65 dB in the right ear at frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hertz (Hz), respectively, and thresholds of 20, 15, 65, 75, 75, and 70 dB for the same frequencies in the left ear. On a November 1990 report of medical history, conducted at the time of mobilization for deployment to the Persian Gulf, the veteran gave a history of hearing loss. The record does not include an audiometry examination for the time corresponding to the veteran's induction into active duty at this time. In March 1991, during his period of active duty, an audiological examination was conducted. In the right ear, puretone thresholds were recorded as 10, 5, 20, 70, 70, and 75 dB at frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hz respectively. In the left ear, puretone thresholds were recorded as 15, 5, 70, 80, 75, and 90 dB at the same frequencies. In April 1991, the veteran was afforded an ear, nose, and throat consultation regarding his sensorineural hearing loss, which was noted to have been progressive over the last 8-10 years. On audiometry examination, puretone decibel thresholds in the right ear were recorded as 20, 5, 5, 10, 25, 75, 80, 70, and 60 dB at frequencies of 250, 500, 1000, 1500, 2000, 3000, 4000, 6000, and 8000 Hz, respectively. In the left ear, puretone thresholds were recorded as 30, 25, 10, 45, 65, 85, 85, 70, and 80 dB at the same frequencies. The report indicates that the veteran did not feel his hearing was a problem for him at present, but he was willing to try amplification. Audiologic assessment was of asymmetric predominantly sensorineural hearing loss, mild sloping to severe, with the loss more significant in the left ear than in the right. Word recognition scores were depressed in the left ear. In May 1991, the veteran was fitted with two hearing aids, and unaided puretone thresholds in the right ear were recorded as 5, 5, 10, 25, 75, and 80 dB at frequencies of 500, 1000, 1500, 2000, 3000, 4000 Hz, respectively, and as 25, 10, 45, 65, 85, and 85 Hz at the same frequencies in the left ear. The report of a periodic National Guard medical examination, conducted during inactive duty in April 1993, shows a notation of bilateral significant hearing deficit requiring hearing aids. Audiometry examination was conducted without hearing aids as a result of feedback noise, and puretone decibel thresholds in the right ear were recorded as 30, 15, 5, 60, 55, and 70 dB at frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hz, respectively. In the left ear, puretone decibel thresholds were recorded as 15, 10, 55, 75, 60, and 75 dB at the same frequencies. At the time of a March 1994 VA examination, the veteran gave a history exposure to prolonged and frequent noise from a busy airport located close to his duty station during his service in Saudi Arabia. He also gave a history of exposure to the noise from a rifle range. Puretone thresholds were recorded as -5, 10, 25, 75, and 75 dB in the right ear, for a four frequency average of 46 dB; and in the left ear, puretone thresholds were recorded as 0, 5, 70, 75, and 85 dB for a four frequency average of 59 dB. Speech recognition scores were 88 percent in the right ear and 60 percent in the left ear. The examiner indicated that hearing was within normal limits for 250-2000 Hz in the right ear an for 250- 1000 Hz in the left ear. For the higher frequencies, there was a severe bilateral sensorineural hearing loss. In a VA Form 9 (substantive appeal), dated October 1994, the veteran indicated that he did not dispute the fact that hearing loss existed prior to his active duty training in the Persian Gulf. However, he argued that this condition had been aggravated by his period of service, as evidenced by the fact that hearing aids were furnished during that time. He also indicated his belief that the evidence regarding his pre-service and in-service acoustic levels were proof that the condition has become worse and was aggravated during his Persian Gulf service. The record indicates that the RO made repeated attempts to obtain all available medical records for the veteran by contacting the appropriate sources, including the veteran himself. A July 1998 report of contact indicates that all efforts to locate additional service medical records had met with negative results, and there were no further avenues to follow. In conjunction with his claim, the veteran submitted a copy of a May 1986 memorandum which indicates that he participated in explosives and demolition training in May 1986. Additional records show that the veteran also participated in demolitions and explosives training in November 1986 and December 1986 at the U.S. Army Engineer School. Analysis Having reviewed the record, the Board has concluded that the preponderance of the available evidence weighs against a finding that service connection is warranted for hearing loss. Initially, the Board notes that a hearing loss disability is not shown to have been incurred or manifested during the veteran's initial period of active duty for training, between December 1963 and May 1964, as his hearing was evaluated as within normal limits both at the time of induction and separation examinations, and there is no evidence of the manifestation of hearing loss within one year following the veteran's discharge from such service. A hearing loss disability, as defined for VA purposes, is initially shown at the time of an April 1972 medical examination (during inactive status) which shows that a puretone threshold of 60 dB in the right ear at 4000 Hz, and puretone thresholds of 70, 70, and 45 at frequencies of 2000, 3000, and 4000 Hz, respectively, in the left ear. Thereafter, the veteran's medical examinations repeatedly note the presence of bilateral sensorineural hearing loss. Thus, the evidence clearly establishes that a hearing loss disability pre-existed the veteran's known period of active duty for training between October 1986 and January 1987 and his active duty in the Persian Gulf from November 1990 to June 1991. Therefore, a grant of service connection requires evidence that the pre-existing hearing loss disability worsened in severity or that there was an increase in the disability either during or as a result of such service. In statements on appeal, the veteran has contended that his hearing loss disability worsened solely as a result of his Persian Gulf service, during which time he was stationed in close proximity to a frequently used airport. However, he has also submitted documentation indicating that he participated in explosives and demolition training during a period of active duty for training between October 1986 and January 1987 and he has referred to a long history of exposure to noise from rifle ranges. Having reviewed the record, however, the Board finds no evidence suggestive of an increase in his hearing loss disability during this period of active duty for training, and the record does not include findings which identify the level of the veteran's hearing acuity upon entry into that period of active duty for training. Thus, the evidence of record is insufficient to show aggravation of the pre-service hearing loss for this specific period in time. With regard to the veteran's period of active duty in support of Operation Desert Storm, between November 1990 and June 1991, it is the opinion of the Board that the evidence does not support a finding that the veteran's pre-existing hearing impairment either worsened in severity during that time or that there was an increase in the hearing loss disability as a result of that service. The record does not include audiometry findings which identify the level of the veteran's hearing acuity at the time of his induction into active service in November 1990, and thus, the nature and severity of his hearing impairment, as manifested at the time of induction into active service, is not known. Therefore, the Board has conducted a comparative review of the audiometry findings shown in September 1989 (at the time of the examination conducted closest to the time of his entry into active service in November 1991) with those shown during active service in March, April, and May of 1991, when the veteran was evaluated and fitted for hearing aids. In addition, the Board has also considered the findings of post- service VA audiometry examinations conducted in April 1993 and March 1994. In the Board's view, the evidence does not demonstrate a sustained, pathological increase in the veteran's hearing disability during the period of active service. Rather, the findings indicate fluctuations, both up and down, in puretone decibel levels at the tested frequencies during the specified period. For example, improvement is shown in the two lowest frequencies when comparing the decibel threshold findings from September 1989 with those of April 1991, while an increase is indicated with regard to threshold levels for the same dates when considering the higher frequencies. Likewise, improvement is shown when contrasting the April 1991 puretone decibel levels in the right ear (25 dB at 2000 Hz, 75 dB at 3000 Hz, 80 dB at 4000 Hz, and 70 dB at 6000 Hz) with those recorded in April 1993 (5 dB at 2000 Hz, 60 dB at 3000 Hz, 55 dB at 4000 Hz, and 70 dB at 6000 Hz), and similar improvement is shown when comparing the left ear results for the same dates. Thus, while the in-service findings indicate a fluctuation of approximately 5-10 dB in the decibel levels at certain frequencies, the increases which are indicated are not shown to have been sustained or permanent. As such, with consideration of the overall disability picture and the indicated variations, both up and down, in the level of the veteran's hearing acuity, the Board cannot conclude that a hearing loss disability either increased in severity or worsened as a result of active service in support of Operation Desert Storm. The Board also notes that the record does not include a medical opinion or other medical evidence which suggests that the in-service audiometry findings represent an increase in the severity of the veteran's hearing loss. The veteran has asserted that an increase in severity can be shown by the fact that he was fitted for hearing aids in 1991. He believes that if his hearing loss had not grown worse during active service, hearing aids would not have been necessary. The medical evidence shows, however, that the level of his hearing impairment did not change significantly between the 1989 audiogram and the April 1991 prescription for hearing aids, and in fact, improvement in his hearing acuity is demonstrated at some frequencies. Thus, the fact that the veteran was given the option of hearing aids during active duty does not necessarily establish or suggest that service connection is warranted for hearing loss on the basis of aggravation, particularly as the increased decibel thresholds shown during service are not shown to have been sustained or pathological in nature. For the reasons stated above, therefore, the Board has concluded that the preponderance of the available evidence weighs against a finding that a hearing loss disability, which pre-existed the veteran's periods of active service, either increased in severity or worsened permanently as a result of such service or exposure to elevated levels of noise therein. ORDER Service connection is denied for hearing loss. C. P. RUSSELL Member, Board of Veterans' Appeals