BVA9500512 DOCKET NO. 93-07 394 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty for training from October 1943 to March 1946 and from October 1950 to September 1951. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision in May 1992, by the Los Angeles, California, Department of Veterans Affairs Regional Office (VARO) which denied the appellant service connection for a bilateral hearing loss with tinnitus. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he currently suffers from bilateral hearing loss with tinnitus that is directly related to his period in service as a radio operator. 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 appellant'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 a chronic bilateral hearing loss with tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. A chronic hearing loss and tinnitus related to service have not been demonstrated. CONCLUSION OF LAW A chronic bilateral hearing loss with tinnitus was not incurred in or aggravated by service, and a sensorineural hearing loss disability may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. 3.303, 3.307, 3.309, 3.385 (1993). 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. 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 which is plausible. We are also satisfied that all relevant evidence has been obtained. There is no indication in the record that there are other records available that should be obtained. Therefore, no further development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background The appellant's complete service medical records are unavailable. However, his September 1951 separation examination was negative for any complaints referable to his ears, and the results of his hearing test were 15/15 bilaterally. A February 1983 Valley Presbyterian Hospital summary, was submitted by the appellant's private physician, Michael Landman, M.D., which indicated a laryngectomy. Kaiser Permanente medical treatment records dated from August 1990 to September 1990 reported that the appellant complained of bilateral tinnitus for more than 4 years. The appellant denied hearing loss or vertigo. The appellant's hearing levels were measured on audiometric testing as follows: 250 500 1000 2000 4000 8000 (Hertz) RIGHT 10 0 10 10 40/50 70 (Decibels) LEFT 10 0 10/20 10 40 60 The examiner diagnosed tinnitus, secondary to high frequency sensorineural hearing loss. Medical treatment records dated from April 1985 to December 1986 from Dr. Landman reported that the appellant complained of tinnitus in October 1985. A May 1991 treatment report from the appellant's private physician Ronald P. Accomazzo, M.D., described the appellant's ears as within normal limits. His impression was tinnitus. A VA examination was conducted in February 1992. The appellant complained of a continuous ringing in his ears that began 15 to 20 years earlier and which was more noticeable when background noise was low. Several tests were performed to determine the extent of the appellant's hearing loss. The appellant's hearing levels were measured on audiometric testing as follows: 250 500 1000 2000 3000 4000 6000 8000 RIGHT 20 20 20 15 35 40 45 85 (Decib LEFT 20 10 20 20 40 50 45 80 A speech audiometry revealed a 92 percent right ear recognition and a 100 percent left ear recognition. An ear, nose and throat consultation was also conducted. The examiner observed the ears to have intact tympanic membranes and canals. The appellant's nose was midline with no polyps or infections. The examiner diagnosed a bilateral high frequency hearing loss with constant tinnitus. During his November 1992 hearing on appeal, the appellant testified that while he worked as a radio operator during service, it was necessary to keep the volume of his head phones raised in order to hear signals above the static. He claimed that he was not exposed to loud noises after service, but worked as a teletype operator, milkman and electronic technician. He reported that he first noticed a ringing in his ears in the mid to late 70's. Analysis Service connection for a hearing loss disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if a sensorineural-type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). Service connection for impaired hearing will not be established when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz are all less than 40 decibels, and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385 (1993). For a 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. 38 C.F.R. §3.303(b)(1993). 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.303(d)(1993). When all of the relevant evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against his claim, in which event the claim is denied. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, we find that service connection for a chronic bilateral hearing loss is not warranted. The service medical records do not reflect any treatment or findings of hearing problems. The appellant's separation examination was negative for complaints of hearing loss and the results of his hearing test was normal. There is no medical evidence of sensorineural hearing loss disability to a compensable degree within one year of separation from service. Although the audiometric findings in 1990 satisfy the regulatory requirements of a current bilateral hearing loss, the diagnosis was made almost forty years after discharge. No medical evidence was submitted to link the appellant's current bilateral hearing loss to his active duty as a radio operator. The veteran's current hearing loss is too remote to reasonably relate it to any incident of service without any evidence of "continuity of symptomatology." We do not doubt the appellant, serving as a radio operator, was exposed to loud noise or possibly even acoustic trauma in service. The appellant says he has bilateral hearing loss due to the loud radio volume in service, but being a layman he has no competence to give a medical opinion on causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). There is nothing in the record, other than the appellant's own subjective statements, which relates his current bilateral hearing loss and tinnitus to service or to any incident therein. His unsupported lay statements, standing alone, do not present the nexus necessary to establish service connection. Consequently, the evidence does not support his claim and service connection for bilateral hearing loss and tinnitus is not warranted. ORDER Service connection for a bilateral hearing loss and tinnitus is denied. C. P. RUSSELL 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.