BVA9500764 DOCKET NO. 93-10 027 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from June 1970 to January 1972. This appeal arises to the Board of Veterans' Appeals (Board) from the July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for bilateral hearing loss. On two prior occasions, the veteran previously applied for service connection for hearing loss. The RO administratively denied his claim both times, in 1972 because the veteran failed to report for a scheduled examination, and in 1985 because he failed to respond to a request for evidence showing continuity of treatment since service. To the extent that the veteran's statements at the time of his VA consultation examination in April 1992 may be construed as a claim for service connection for tinnitus, that issue has not been adjudicated or otherwise developed for appellate review, and so is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he incurred hearing loss during service and currently has a compensable hearing disability. He contends that his hearing has been impaired since serving in Viet Nam. 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 folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in favor of a grant of service connection for bilateral hearing loss. FINDINGS OF FACT 1. The veteran's hearing was within normal range on entry into active service. 2. The veteran sustained acoustic trauma during service. 3. The veteran was shown to have bilateral sensorineural hearing loss while in service. 4. The veteran is currently shown to have a bilateral sensorineural hearing loss disability on VA examination. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background At his pre-induction examination in March 1970 the veteran reported no history of hearing loss or ear trouble. The service examiner noted cerumen in the veteran's right ear. On audiological evaluation, pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 - -5 LEFT 15 5 15 - 20 Service medical records show that in May 1971, the veteran sought treatment for hearing loss in his left ear which he had experienced since sustaining a head injury two days earlier. The examiner noted that both ear canals were full of cerumen. Hearing in the left ear reportedly improved after both ear canals were cleaned. The examiner's impression was hearing loss related to cerumen rather than a blow to head. Nevertheless, clinical records show that the veteran was seen again on the following day complaining of pain in his right ear and drainage of blood tinged fluid. On examination the left tympanic membrane was clear. Dried blood was found in the left ear canal. The right ear canal contained blood tinged exudate. The veteran was referred to an Evacuation Hospital where an audiological evaluation was conducted a few days later. Pure tone thresholds, in decibels, were recorded as follows (after conversion to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 10 - 55 LEFT 25 10 15 - 10 The audiologist's notation indicates mild sensorineural hearing loss in the left ear. On the authorized audiological evaluation conducted prior to separation in December 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 Clinical evaluation showed all normal findings, including the condition of the veteran's ears and ear drums. The veteran's DD Form 214 indicates that his military occupational speciality was light weapons infantry. Service personnel records reflect that, during his reserve service from 1974 to 1984, the veteran served as a combat engineer. In the veteran's August 1972 compensation claim for bilateral hearing loss he asserted that he was treated at DaNang Army Hospital in June 1971. The RO was unable to locate service records of any such treatment. At the time of the veteran's re-enlistment for reserve service in July 1976, an authorized audiological evaluation was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 30 - 30 LEFT 20 20 15 - 60 The veteran reported ear trouble and a history of hearing loss since 1971 in Viet Nam. Diagnosis was mild bilateral hearing loss. An H-2 medical profile was assigned, indicating that the veteran met standards for enlistment, but may have been limited in his occupational classification and assignment. During a periodic reserve examination in August 1984 the veteran reported a history of ear trouble and hearing loss since Viet Nam. On the authorized audiological evaluation at that time pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 45 50 LEFT 0 0 10 0 25 The service examiner noted hearing loss in the right ear. In August 1985 the veteran stated that while in Viet Nam he spent considerable time in close proximity to 155 Howitzers and that he was sent to a small aid station because he was having trouble hearing. He indicated that he recalled severe pain, and bleeding from his ears, after medics inserted instruments, described as wires containing hooks, into his ear canals. The veteran claimed that his hearing had been impaired since that time. A reserve medical examination conducted in October 1989 indicates that the veteran needed audiological testing, although there is no record such testing was done. In July 1991, he was diagnosed with hearing loss during a VA compensation examination conducted for an unrelated claim. The veteran's most recent authorized audiological evaluation was conducted at the Syracuse VA Medical Center in April 1992. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 75 65 LEFT 15 20 15 35 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The veteran reported noise exposure in the service and decreased hearing, with periodic tinnitus since 1970-71. He denied any history of middle ear disease or vertigo. Entitlement to service connection for bilateral hearing loss Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Each disabling condition shown by a veteran’s service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154. Additionally, regulations provide that 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). When, after consideration of all evidence and material of record in a case with respect to disability compensation benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Every veteran is presumed 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. 38 U.S.C.A. § 1111. The report of the veteran's pre-induction examination specifically indicates that his hearing was within normal range. Therefore, the veteran must be presumed not to have had bilateral hearing loss prior to service. The veteran's 1972 claim for service connection for bilateral hearing loss demonstrates that he believed his hearing to be impaired at that time, eight months after his separation examination. The Board also notes that clinical records from July 1976 demonstrate that bilateral hearing loss had advanced to the level of what the Board would now classify as hearing disability, 38 C.F.R. § 3.385, within five years of separation from service. With respect to hearing impairment during service, the Board finds that the May 1971 examiner's impression of cerumen-induced hearing loss is superseded by the audiological evaluation conducted a few days later, which showed a threshold of 55 decibels at 4,000 Hertz, in the right ear, demonstrating that normal hearing was not restored after ear cleaning, but rather that the veteran's hearing loss had persisted. The Board notes that the thresholds recorded at the time of the veteran's separation examination were generally lower than those noted on the pre-induction examination. Although the Board must accept the separation audiometric data, it assigns lesser probative weight to them in light of the pre-induction and in-service data showing much higher thresholds. Additionally due consideration has been given to the places, types and circumstances of the veteran's service which included severe combat conditions and exposure to weapons fire. The Board finds that the increased thresholds recorded during service, when viewed in conjunction with the noise exposure related to the veteran's service occupation, and in light of demonstrable hearing loss in both ears within only a few short years after service, provide adequate information on which to base a finding that the pathological process leading to hearing loss in both ears had its origin in service. The evidence as to this issue is at least in relative equipoise. Accordingly, under 38 U.S.C.A. § 5107(b), the matter shall be resolved in favor of the veteran. Considering this finding and the fact that the veteran currently has hearing loss in both ears which meets the criteria for service connection under 38 C.F.R. § 3.385, the Board concludes that service connection for bilateral hearing loss is established. ORDER Service connection for bilateral hearing loss is granted. ______________________________ N. R. ROBIN 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.