BVA9505975 DOCKET NO. 93-12 505 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of frostbite to the feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from December 1943 to November 1945. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a May 1992 rating decision of the Waco, Texas, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he sustained hearing damage when exposed to loud artillery fire during service. He further contends that he currently suffers residual disability due to frostbitten feet during 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. 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 service connection for bilateral hearing loss and residuals of frostbite to the feet is warranted. FINDINGS OF FACT 1. The appellant served on active duty from December 1943 to November 1945. 2. The appellant's service medical records are presumed destroyed in 1973 in a fire at the National Personnel Records Center in St. Louis, Missouri, with the exception of daily sick reports dated November 1943 to March 1944 which reflect that the appellant was seen on two separate occasions for an unknown illness/condition and returned to duty in each instance. 3. Two lay statements dated September 1991 from fellow servicemen reflect personal knowledge that the appellant suffered hearing difficulties and frostbitten feet during service. 4. VA examination in December 1991 reported the presence of a residual disability of the feet possibly consistent with the history of frostbitten feet during service. 5. Otological findings on VA examination in December 1991 reflect a history of hearing loss since World War II and the diagnosis of bilateral sensorineural hearing loss probably attributable to noise exposure. 6. The appellant's bilateral hearing loss and residuals of frostbitten feet are consistent with the circumstances and conditions of his period of active duty in combat, and there is no clear and convincing evidence to the contrary. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1994). 2. Chronic residuals of frostbite were incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. I. Background The appellant served on active duty from December 1943 to November 1945. The appellant's service medical records are presumed destroyed in 1973 in a fire at the National Personnel Records Center in St. Louis, Missouri, with the exception of two daily sick reports. The daily sick reports dated November 1943 to March 1944 reflect that the appellant was seen on two separate occasions for an unknown illness or condition and returned to duty in each instance. The report of separation shows that the appellant served in combat as an artillery field lineman. In April 1983, the appellant claimed entitlement to service connection for bilateral hearing loss. In a lay statement from a fellow serviceman dated September 1991, Curtis Roy Young indicated that he that he had personal knowledge of the appellant's hearing difficulties and frostbitten feet during service. Similarly, in a lay statement from another fellow serviceman dated September 1991, Pedro Herrera indicated that he served in the same field artillery battalion as the appellant and that many soldiers in their battalion had frostbitten feet; he also reported that their battalion was surrounded by constant gunfire causing hearing damage. In November 1991, the appellant claimed entitlement to service connection for frozen feet. In a statement which accompanied his claim, the appellant indicated that both his feet were frozen during the Battle of the Bulge; he also indicated that his hearing was damaged when he was unable to duck his head in time after a Tom Gun blast during service. He also reported that, subsequently, a bug had entered his ear while on guard duty and that he sought treatment at the First Aid Station. At that time, the appellant submitted the names and addresses of four physicians noted as follows: Willis H. Carter, M.D., (urology); Charles A. F. McCluuer, Jr., M.D., (skin cancer); Jack Mobley,. M.D., (family doctor since 1950); and Edward Singleton, D. P.M. (feet). In December 1991, a VA examination was conducted. The appellant, a 68-year old male, complained of having had frozen feet during the Battle of the Bulge. It was noted that no medical records were made available for review prior to examination. By history, the appellant reported that his frostbitten feet were treated with a formaldehyde solution from which his feet broke out. He further reported that he was not hospitalized and was kept on duty. The appellant complained that, at present, his feet and ankles tingle and burn, especially in the toes. Clinical findings noted some discoloration of the feet, some varicose veins on the feet, an abnormality of the toenails bilaterally which appeared to be infected with a fungus of all five nails on each foot, considerable hypertrophy of the nails bilaterally, and a mallet deformity, with painful hard end corn, on the third toe of the left foot. The appellant was diagnosed with residuals of frozen feet bilaterally with some discoloration, pain with prolonged walking, and abnormal toe nails bilaterally; he was also diagnosed with some decreased vibratory sensation in the feet, possibly the result of previous frozen feet. On the authorized audiological evaluation in December 1991, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT xxx 65 65 65 65 LEFT xxx 65 70 70 80 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 in the left ear. The appellant reported, by history, hearing loss since service but without vertigo or tinnitus. He was diagnosed with bilateral symmetric sensorineural hearing loss probably secondary to combat noise exposure. In response to VARO's request, various outpatient and inpatient treatment records from the physicians reported by the appellant were obtained in January 1992. These records date from August 1968 to October 1991 and reflect treatment for cellulitis of the ankles, gout, prostatitis, arthritis of the knees, hypertension, diabetes mellitus, and degenerative arthritis of the back. In a private medical statement dated January 1992, Dr. Singleton indicated that had treated the appellant on three separate occasions beginning in February 1991. The appellant was diagnosed with painful Heloma Dural of the 5th toe of the left foot, Heloma Molle of the 4th toes of the right foot, and an exostosis of the distal aspect of the terminal tuft of the distal phalanx. Surgical intervention was recommended. In April 1992, the appellant submitted a United States (US) Army extract of the appellant's points of location/deployment during service, a personal letter from a friend in Germany dated January 1947 which showed that the appellant had been in Nordlingen, Germany, and a newspaper article dated August 1945 which showed the date and place of the appellant's return to the US from overseas. In April and May 1992, private outpatient treatment reports dated January 1971 to May 1991 were received. They reflect treatment for solar keratosis. In November 1992, a personal hearing was conducted at VARO. The appellant testified that the tingling and burning sensation in his feet was due to frostbitten feet during service. The appellant noted that, at the time of the Battle of the Bulge, the temperature was extremely cold and there was deep snow. The appellant also testified that he was exposed to significant artillery noise in service which he believes is responsible for his current hearing impairment. The appellant recalled one instance in particular wherein he was very close to three large guns when they were fired; he reportedly experienced temporary deafness bilaterally along with a ringing in the ears which eventually subsided. II. Service Connection Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 1131 (West 1991). Furthermore, in the case of any disease diagnosed after discharge, service-connection may be granted when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service includes satisfactory lay or other evidence of service incurrence or aggravation of injury or disease, if consistent with the circumstances, conditions, or hardships of such service, and to that end, every doubt must be resolved in the favor of the veteran. However, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 1991). There are some disabilities where service connection may be presumed if the disorder is manifested to a degree of 10 percent disabling within one year of separation. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The Board notes that sensorineural hearing loss may be afforded the benefit of this presumption under the applicable VA law and regulations. In weighing the evidence of record, the Board concludes that through the application of 38 U.S.C.A. § 1154 (West 1991), and the lack of clear and convincing evidence to the contrary, entitlement to service connection for bilateral hearing loss and residuals of frostbite to the feet is warranted. A. Hearing loss The appellant has contended that his bilateral hearing loss is the result of artillery fire and in particular an incident where the appellant was in near proximity to three large gun blasts during service. While the service medical records are presumed to have been destroyed in the fire at the National Personnel Records Center in 1973, the lay statements of the appellant's fellow servicemen dated in September 1991 which relate personal knowledge of artillery blasts and the appellant's hearing difficulty supports the appellant's contention that he sustained acoustic trauma during service. Furthermore, the Board finds that the VA audiological report dated in December 1991, which reflects that the appellant's present hearing disability is probably related to the combat noise exposure he reported by history, weighs in favor of service connection, since it is no longer solely predicated on the subjective history of the appellant in view of the lay statements of the appellant's fellow servicemen which provides satisfactory proof of the incurrence of acoustic trauma during service as the appellant contends. While the first objective medical evidence of record of bilateral hearing loss was on VA examination report dated in December 1991, we note that in O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991), the Court of Veterans Appeals (the Court) indicated that where the service medical records are presumed destroyed the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. We have carefully considered our heightened obligation with respect to the benefit-of-the-doubt rule and in view of the lack of clear and convincing evidence to the contrary coupled with the fact that the bilateral hearing loss is considered to be consistent with acoustic trauma resulting from the appellant's combat service, the undersigned concludes that the evidence of record supports the appellant's contention that bilateral hearing loss is related to his period of service. We place particular emphasis upon application of 38 U.S.C.A. § 1154(b) (West 1991) and its provision that satisfactory lay evidence shall be accepted as proof of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence. (Emphasis added). See Sheets v. Derwinski, 2 Vet. App., 512, 515 (1992). In view of the above, the Board concludes that service connection for bilateral hearing loss is warranted. B. Residuals of Frostbite The appellant is also seeking service connection for residuals of frostbite to the feet during service. In this case, the Board concludes that the appellant's claim that he sustained frostbitten feet and suffers residual disability attributable to frostbite in service is supported by the record, in particular the two lay statements from fellow servicemen and the VA examination report dated December 1991. While the post-service treatment reports of record do not show complaints or findings for a bilateral foot disorder related to frostbite in service, the Board finds that the two lay statements from fellow servicemen who apparently served closely with the appellant, which reflect personal knowledge of the appellant's frostbite injury to the feet in service, and the VA examination report dated December 1991, which reflects a diagnosis for residuals of frozen feet, tend to weigh in favor of the appellant's claim, particularly when coupled with our heightened obligation concerning the benefit-of-the-doubt rule under O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). Accordingly, in light of our heightened obligation with respect to the benefit-of-the-doubt rule under O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) and in view of the lack of clear and convincing evidence to the contrary coupled with the fact that the discoloration, pain on prolonged walking, abnormal toe nails, and decreased sensation of the feet are considered to be consistent with frostbite resulting from the appellant's combat service, the undersigned concludes that the evidence of record supports the appellant's contention that he suffers residuals of frostbite to the feet related to his period of service. Again, the Board places particular emphasis upon application of 38 U.S.C.A. § 1154(b) (West 1991) and its provision that satisfactory lay evidence shall be accepted as proof of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence. (Emphasis added). See Sheets v. Derwinski, 2 Vet. App., 512, 515 (1992). In view of the above, the Board concludes that service connection for residuals of frostbite is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for residuals of frostbite is granted. 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.