BVA9506023 DOCKET NO. 93-06 572 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for perforation of the left tympanic membrane. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from April 1954 to January 1956. In a February 1995 letter, copies of the medical literature cited in this decision were furnished to the veteran's representative in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993). In February 1995, additional argument was received from the veteran's representative in response to this letter, and will be addressed in the portion of this decision pertaining to the issue of entitlement to service connection for hearing loss. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has developed bilateral hearing loss as a result of active service. He states that he sustained an acoustic trauma during service in 1955 when a 21 pound satchel charge exploded prematurely. He argues that he has experienced hearing loss since that time, and states that it has gradually become worse. Currently, he notes that he has bilateral hearing loss, and that his left ear is almost completely deaf. In addition, he contends that perforation of the left ear drum is also the result of the trauma he sustained during service. 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 claims for entitlement to service connection for bilateral hearing loss and perforation of the left ear drum. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO). 2. There is no evidence of sensorineural hearing loss or a perforated left tympanic membrane until many years following discharge from active service, and the post-service disorders are unrelated to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated during active service nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. Perforation of the left tympanic membrane was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The RO attempted to obtain the veteran's service medical records; the only record available is the service separation examination of January 1956. No records from the Office of the Surgeon General are available. Since there is a question as to whether complete service medical records are available, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The veteran's representative has argued that a remand for an opinion as to the etiology of the veteran's hearing loss would be helpful. However, the Board notes that the veteran has been afforded a recent Department of Veterans Affairs (VA) audiological evaluation and examination for neurological sequelae, which appear to be full and complete. Accordingly, no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The veteran argues that he is entitled to service connection for bilateral hearing loss and perforation of the left eardrum. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. The veteran's recent diagnoses have included sensorineural hearing loss. If an organic disease of the nervous system such as sensorineural hearing loss becomes manifest to a degree of 10 percent within 1 year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of sensorineural hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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) (1993). The only available portion of the veteran's service medical records is his January 1956 discharge examination. This examination is negative for any evidence of perforation of the left tympanic membrane or of hearing loss. The examination report notes that hearing was 15/15 bilaterally for whispered voice. There are no post service medical records for the first year following discharge from active service to show hearing loss. However, a November 1992 letter from [redacted] is of record. Mr. [redacted] states that he has known the veteran for many years, and that they shared a room at a boarding house while attending college shortly after discharge from active service. After a year of college, Mr. [redacted] says that he went to work, and eventually persuaded the veteran to join him 6 months later. Mr. [redacted] states that during the 4 years that they worked together, he began to notice that the veteran had problems hearing out of his left ear. He notes that the veteran always attributed this problem to an explosion during active service. Mr. [redacted] states that the veteran's hearing has become worse with the passing years and his opinion was that the veteran's hearing loss was a direct result of an explosion during service. The veteran was afforded a VA examination in July 1992. He stated that he sustained an acoustic trauma during active service when a 21 pound satchel charge blew up near him. He reports that he lost consciousness, and later received treatment at an aid station. He states that he has had some hearing loss as a result of the explosion. On examination, there was a small perforation of the left tympanic membrane. The assessment was history of concussion with no neurological sequelae. An audiological evaluation in July 1992 showed bilateral sensorineural defective hearing, and the left ear was noted to be essentially nonfunctional. Hearing aids were recommended. The veteran stated that he felt that his hearing deficit of the left ear was due to noise trauma to which he was exposed during the military. After careful consideration of the veteran's contentions and the evidence of record, the Board is unable to find that service connection for bilateral hearing loss or perforation of the left tympanic membrane is shown by the evidence of record. These conditions were not noted on the discharge examination, and were first shown to exist many years after discharge from active service. While the Board notes that the veteran may have been exposed to acoustic trauma during service, the evidence does not show that this acoustic trauma resulted in hearing loss. Acoustic trauma is a single blast of intense noise. The onset of hearing loss in acoustic trauma is "characteristically instantaneous." S. Jerger and J. Jerger, Auditory Disorders: A Manual for Clinical Evaluation 119-123 (1981). Thus, one would reasonably expect hearing loss in this particular case to have occurred shortly after the noise exposure. However, the veteran's hearing was normal to whispered voice at the January 1956 discharge examination. Whispered voice testing falls within the range of hearing tested by a formal audiometric evaluation. Robert K. Jackler, M.D. and Michael J. Kaplan, M.D., Ear, Nose, & Throat in Current Medical Diagnosis and Treatment 146 (Steven A. Schroeder, M.D. et al. eds., 1992). It is noted by the Board that the service discharge examination was negative for hearing loss or perforation of the left tympanic membrane. Sensorineural hearing loss was not demonstrated until July 1992, more than 36 years after discharge from active service, and the examiner at that time provided an assessment of "no neurological sequelae" from history of concussion. There is otherwise no medical evidence linking the post-service hearing loss or perforated tympanic membrane to service. In his February 1995 statement, the veteran's representative has objected to the manner in which the medical literature cited above is used. He argues that the whispered voice test administered to the veteran during service was inaccurate, and that it was not the equivalent of a formal audiometric study. The representative states that nothing in the extract from Ear, Nose, & Throat in Current Medical Diagnosis and Treatment states that the whispered voice falls within the range tested by a formal audiometric evaluation, as asserted by the Board in its February 1995 letter. In response, the Board notes the extract from Ear, Nose, & Throat in Current Medical Diagnosis and Treatment demonstrates that whispered voice testing tests hearing acuity for speech and an audiometric study measures the main speech frequencies. The article further states that the threshold of normal hearing is from 0 to 20 decibels, which corresponds to the loudness of a soft whisper. The Board does not offer the extract from Ear, Nose, & Throat in Current Medical Diagnosis and Treatment to suggest that the two forms of testing are equivalent, but to show that they are both accurate. Without any other contemporaneous medical evidence to contradict the January 1956 discharge examination, and no other medical evidence to confirm hearing loss or tinnitus for the next 36 years, the January 1956 examination must be accepted as accurate. While the Board recognizes that a formal audiometric study would be preferable to the whispered voice test, there is nothing in the extract from the Ear, Nose, & Throat in Current Medical Diagnosis and Treatment to suggest that the whispered voice test is inaccurate. Although the representative has speculated that the test was not performed under ideal conditions, neither he nor the veteran has submitted any evidence to show that the test as administered was faulty. The article also demonstrates that the Weber test and Rinne test are used to determine whether hearing loss is conductive or sensorineural. Therefore, it was not necessary that they be performed in this case, as no hearing loss was shown. Robert K. Jackler, M.D. and Michael J. Kaplan, M.D., Ear, Nose, & Throat in Current Medical Diagnosis and Treatment 146 (Steven A. Schroeder, M.D. et al. eds., 1992). The representative has noted that the extract from Auditory Disorders: A Manual for Clinical Evaluation states that subjective complaints of hearing loss are generally not reported by patients until a hearing loss of more than 25 dB HL (ANSI-69) occurs at a frequency below 3000 Hz. The representative argues that this would have prevented the veteran from recognizing the existence of hearing loss until many years following discharge from service. However, a review of the entire paragraph from which the representative takes this statement reveals that it refers to noise-induced hearing loss, which is hearing loss resulting from long-term exposure to a hazardous noise environment. The veteran contends that his hearing loss is the result of a single acoustic trauma. Therefore, this statement would not apply to the veteran's case. S. Jerger and J. Jerger, Auditory Disorders: A Manual for Clinical Evaluation 119-120 (1981). Finally, the Board notes that the veteran's representative has objected to the use of the word "sequelae" by the VA examiner in July 1992. He argues this word, when properly used, refers only to the residuals of disease, and not to the residuals of an injury. Therefore, he believes that the usage of this word renders the findings of the July 1992 examination irrelevant. However, the Board notes that the entire assessment is of "History of concussion with no neurological sequelae." This assessment clearly refers to the relationship between the veteran's injury and his current disability. The only conclusion that can be drawn from this assessment is that the examiner did not believe there is a relationship between the concussion in service and the veteran's current disabilities. In reaching this decision, the Board has considered the statement submitted by Mr. [redacted]. While this statement is helpful, it infers that Mr. [redacted] did not notice a hearing loss initially following the veteran's service discharge, and states that the veteran's hearing loss was first noticed somewhere between 1 1/2 and 6 years after discharge from service. As noted above, hearing loss due to acoustic trauma would be instantaneous, and would have become apparent prior to that time. Although he provides his opinion that the veteran's hearing loss resulted from service, Mr. [redacted] is not competent to render an opinion regarding medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). For the above reasons, service connection for bilateral hearing loss and perforation of the left tympanic membrane is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for perforation of the left tympanic membrane is denied. M. SABULSKY 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.