BVA9504978 DOCKET NO. 93-10 797 ) 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 a right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from January 1944 to May 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred a right ear hearing loss during active service. He maintains that during action aboard a naval warship, he stood next to a weapon as it was discharged causing acoustic trauma and resulting in the right ear hearing loss. He asserts that he was treated after service separation for ear disorders and has continued to suffer a right ear hearing loss. DECISION OF THE BOARD The Board of Veterans' Appeals (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 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 veteran's claim of entitlement to service connection for a right ear hearing loss. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable determination of the veteran's appeal has been obtained by the regional office (RO). 2. Right ear hearing loss is not shown during wartime service or for over 48 years thereafter, and is not shown to be etiologically related to the veteran's wartime service. CONCLUSION OF LAW Right ear hearing loss was not incurred in or aggravated by the veteran's wartime service and right ear sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1993); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds, initially, that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. The Department of Veterans Affairs (VA) has a statutory obligation to assist the appellant in the development of facts relevant to the claim. 38 U.S.C.A. § 5107(a) (West 1991). In an October 1993 statement, the veteran's representative requested that the case be remanded for further development, arguing that the veteran had asked for a VA audiology examination but that the request was denied. A review of the record indicates that the veteran requested a VA examination in his July 1992 substantive appeal, that a VA examination was conducted in December 1992, and that the veteran did not request a further examination in his March 1993 statement after the VA examination. The December 1992 VA examination adequately presents evidence for a determination of the issue on appeal and the Board sees no useful purpose to be served by a further VA examination. On appellate review, we see no areas in which further development might be fruitful. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served 90 days or more during a period of war and sensorineural hearing loss (which is a disorder of the central nervous system) becomes manifest to a degree of 10 percent within one year from the date of termination of such service, it 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). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. § 3.303(a) (1993). For the showing of a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity [of symptomatology] after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). Service connection may 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) (1993). When, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991). The veteran contends that during active service he served aboard a naval warship, and that his right ear hearing loss resulted from exposure to acoustic trauma when a weapon discharged near the ear. For the purposes of applying the laws administered by the 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 or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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 (1993). A review of the service medical records reveals no complaints, treatment, or findings regarding a right ear hearing loss. A medical examination prepared in conjunction with the veteran's separation from active duty disclosed no defects or diseases of the ears, and showed that his hearing was measured as 15/15 in the right ear just as it had been on induction. Evidence subsequent to service separation includes a December 1958 letter from Thomas E. Miller, M.D., who noted that the veteran had tubotympanic catarrh and scars in the right tympanic membrane which, Dr. Miller wrote, were the result of a war injury. A copy of a memorandum entitled "Combat History of Ship While You Were Aboard," from the Commanding Officer of the ship to which the veteran was assigned, shows that the ship was involved in combat operations in October 1944 through June 1945. The veteran also submitted a copy of an August 1945 letter he wrote to his brother. The veteran wrote that he "can't go swimming for awhile because of my ears . . . ." At a November 1992 personal hearing, the veteran testified that he entered service without ears problems and that he was close to a 40 millimeter gun when it fired. He noted that he did not have bleeding at this time. He noted that a doctor gave him something for the pain and told him not to go swimming, and that he has had trouble ever since. He testified that he did go swimming once after that but was in sick bay that night. He also noted that there was a mucus discharge from the right ear during active service. The veteran stated that his separation medical examination was inadequate. The veteran continued that after service separation he went to Doctor William Anderson in New Jersey, who said that the impact on the ear was the cause of his problems. He also testified that when he scuba dived after service separation he could not clear his right ear and that he had blood come through his mask. He stated that Dr. Miller told him to stop scuba diving. He testified that he can not hear with his right ear, and that this affects his current job as a tennis umpire. The veteran's wife testified that she met the veteran right after he came out of service and she took him to Dr. Anderson. She indicated that she has to face him when talking and his hearing gets worse all the time. The veteran stated that records from Drs. Miller and Anderson were not available. He testified that in addition to the hearing loss, he has pain when he flies and gets dizzy at times. The veteran underwent a VA audiological evaluation in December 1992. The examiner recorded a history of long-standing hearing loss of the right ear which first occurred in October 1944. The veteran indicated that his head came too close to the muzzle of a 40 millimeter gun which was firing which knocked him to the deck dazed and that he experienced a perforation of the right tympanic membrane with bleeding. He reported episodes of otitis media but no oto-surgery. He indicated he had tinnitus, a light-headed sensation as well as occasional disequilibrium. He also reported a constant pressure sensation of the right ear which he described as irritating. He had no history of sinus infections or nasal allergies. He indicated that his hearing loss was interfering with his work as a professional tennis chair umpire because he occasionally could not hear the ball at the net. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 45 75 100 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and the pure tone average was 61 decibels in the right ear. The examiner concluded that pure tone test results for the right ear indicated a moderate to profound mild and high frequency sensorineural hearing loss. Also of record is a January 1993 letter signed by [redacted], who wrote that he served with the veteran and remembered that during the Leyte invasion the veteran was in the conning tower at the time general quarters was sounded and exited the port side hatch on his way to his gun station on the aft port 20 millimeter gun. Mr. [redacted] continued that the veteran was passing by the 40 millimeter anti-aircraft gun on the port side at the time it started firing, that his head was no more than two feet from the muzzle when it fired, and that he immediately went down on deck and was unconscious for several minutes. Mr. [redacted] concluded that this event occurred in either October or November 1944 and that the veteran had little or no hearing in his right ear. The first clinical evidence showing a right ear hearing loss after service separation is the December 1992 VA audiology examination demonstrating that the veteran had a current right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385 (1994). The evidence of record, however, does not show that the current right ear hearing loss disability was incurred during active service. The service separation examination, like the veteran's service entrance examination, measured his hearing loss in the right ear as normal, 15/15. The veteran testified at his November 1992 personal hearing that he was treated by Dr. Anderson soon after service separation, although he also stated that Dr. Anderson's records were not available. Dr. Miller's December 1958 letter notes the veteran had tubotympanic catarrh and scarring of the right tympanic membrane, but does not report a hearing loss. Since the disorders are not shown by medical evidence to be related to the veteran's hearing loss, Dr. Miller's notation that these findings were the result of a war injury is not pertinent to the issue at hand. We considered the veteran's testimony at his personal hearing regarding his exposure to acoustic trauma, as well as Mr. [redacted]'s January 1993 letter indicating that the veteran was exposed to acoustic trauma during active service. We readily concede that such was probably the case. The evidence of record does not show that Mr. [redacted] has the requisite skill, experience, or education as an expert to provide an opinion as to the etiologic link of the veteran's current right ear hearing loss to his active service or any acoustic trauma therein. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The Board further recognizes the facts contained in the veteran's August 1945 letter to his brother indicating that he could not go swimming because of his ears; the letter, however, does not indicate the reason his ears prevented him from swimming was a right ear hearing loss. The Board has also considered the provisions of 38 C.F.R. § 3.304(d) (1993), that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. Although we can accept the veteran's contention that he was exposed to loud noise during wartime service , we cannot accept his assertion that his current hearing loss began during combat and has continued to the present time, since the service separation examination showed a normal clinical evaluation of his ears and he is not competent to medically relate his current hearing loss to a remote exposure to acoustic trauma. The absence of evidence of a right ear hearing loss in the service medical records, or in any records for over 48 years after service separation outweighs the veteran's contentions he had a right ear hearing loss during active service. While the veteran's testimony and other evidence show that he was exposed to acoustic trauma, the evidence of record does not medically relate such acoustic trauma to the right ear hearing loss. In the absence of competent medical evidence linking the current hearing loss to events in service, the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a right ear hearing loss. ORDER Service connection for a right ear hearing loss is denied. GEORGE R. SENYK 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.