BVA9501702 DOCKET NO. 93-08 988 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from September 1987 to November 1989. This appeal arises from a rating decision of April 1992 from the Houston, Texas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for bilateral hearing loss disability. He specifically alleges through his representative that his pre- existing condition was aggravated beyond natural progress during his active service. 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 veteran's claims file(s). 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 his claim for service connection for bilateral hearing loss. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been developed. 2. Bilateral hearing loss disability was initially manifested prior to active service, and insufficient evidence has been presented to demonstrate aggravation therein CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in of aggravated by active service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. 3.303, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A.§ 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not indicated that any records of probative value that may be obtained and which are not already associated with his claims folder are available. The Board accordingly finds that all relevant facts have been properly developed, and the duty to assist him, mandated by 38 U.S.C.A.§ 5107(a) (West 1991), has been satisfied. As noted above, the veteran contends that he has bilateral hearing loss disability that was aggravated by active service, and that service connection is warranted therefor. After a review of the record, the Board finds that his contentions are not supported by the evidence, and that his claim fails. In a decision dated in April 1992 , the Houston, Texas, RO denied service connection for bilateral hearing loss disability. The veteran's disability was deemed existent prior to service entry without significant aggravation therein. Under the provisions of 38 U.S.C.A. § 1111 (West 1991). "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service". The report of the medical examination conducted in conjunction with the veteran's entrance into active service, dated in August 1987, indicates that bilateral hearing loss disability had been manifested prior to active service. The provisions of 38 C.F.R. § 3.385, which defines hearing loss disability, is satisfied if one of the following criteria is met: 1. There is at least one 40 decibel threshold at 500, 1000, 2000, 3000, or 4000 hertz, or; 2. If speech recognition scores are less that 94 percent, or; 3. If three of the frequencies (500, 1000, 2000, 3000, 4000 hertz) have thresholds greater than 25 decibels. The entrance examination shows that the veteran's hearing was evaluated at 55 decibels and 60 decibels at the 3000 hertz level for the right and left ear respectively. Likewise, at 4000 hertz, the right ear threshold was evaluated at 65 decibels and the left ear at 80 decibels. Therefore, hearing loss disability as defined by § 3.385 was manifested prior to entrance into active service and the presumption of sound condition has been rebutted. It must now be determined, for the purposes of granting service connection therefor, whether this disability was aggravated by active service. The provisions of 38 U.S.C.A. § 1153 stipulates: A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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. The report of the audiometric examination conducted in August 1989 reveals that at the 4000 hertz level the veteran's left ear hearing capacity diminished 5 decibels since entrance into service. Similarly, the veteran's right ear hearing capacity at 3000 hertz was evaluated as 5 decibels less than it was upon entrance into active service. These audiometric findings reflect only a minimal upward shift in test thresholds during service. In addition, this same examination also reflects that the veteran's left ear hearing improved 5 decibels at the 3000 hertz level and remained constant at 4000 hertz for the right ear. Further, since the examination evaluates hearing thresholds only in 5 decibel increments, even the slightest of changes may be reflected as a 5 decibel increase or decrease in hearing capacity. Variables such as differences in examining facilities and background noise may have played a roll in the threshold readings. This is not to say that whenever there is only a 5 decibel change in thresholds, it is necessarily the result of variables, but when as here, there is both an increase and a decrease in hearing thresholds, it cannot be said that the veteran experienced an increase in hearing disability during active service. The Board also notes that the veteran worked in law enforcement while in the service, and states that he spent most of his tour in flight line security, where he presumably was exposed frequently to loud noise. However, given only the slight upward shift in 2 of the 4 relevant thresholds, and a decrease in another, it is the opinion of the Board that the veteran's pre- existing hearing loss disability was not aggravated by active service. In brief, the evidence shows that the veteran had a pre-existing bilateral hearing loss disability, and insufficient evidence has been presented to show aggravation beyond the natural progress of the disability. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for bilateral hearing loss disability. ORDER Service connection for bilateral hearing loss disability is denied. 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.