BVA9501619 DOCKET NO. 93-08 251 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for impaired hearing of the right ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Auer, Counsel INTRODUCTION The veteran served on active duty from June 1943 to April 1946. This appeal arises from an April 1991 rating decision of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). In that decision, service connection for impaired hearing of the right ear was denied. Service connection for hearing loss and tinnitus of the left ear was granted by rating decision of December 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that he suffers a hearing loss in his right ear and that it was caused by exposure to the firing of 40 millimeter guns 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 does not support the claim for service connection for impaired hearing of the right ear. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran is not shown to meet the VA criteria for service connection for impaired hearing of the right ear. CONCLUSION OF LAW Impaired hearing of the right ear was not incurred in or aggravated by active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). That is, he has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The veteran's service medical records show that a scarred right ear drum was noted on induction examination in June 1943, and the report shows that his hearing was 15/15 on the right on whispered voice testing. In May 1944, the veteran developed severe pain in the right ear while on guard duty. The pain ceased after two days. The diagnosis was bilateral acute, slight catarrhal nasopharyngitis with eustachian salpingitis. Later that month, it was observed that both eardrums were mildly scarred and inflamed around the manubrium. Hearing was reported as 12/15 on low conversational voice testing of the right ear. His ears were described as essentially normal several days later. On separation examination, the hearing in the veteran's right ear was reported as 15/15 on whispered voice testing. It was also noted that the right eardrum was scarred. The claims file contains no evidence that the veteran was treated for complaints of impaired hearing until he was examined by the VA in March 1979. Audiometric testing disclosed pure tone thresholds of 15, 15, 0, 15, and 25 decibels in the right ear at 500, 1,000, 2,000, 4,000, and 8,000 hertz, respectively. Speech discrimination ability was 100 percent in the right ear and hearing was described as within normal limits. The claims file contains a letter from J. M. Adelglass, M.D., who stated that he had seen the veteran in August 1990 for complaints of hearing loss. Dr. Adelglass reported that the veteran had suffered permanent sensioneural hearing loss most likely due to noise exposure and confirmed by audiogram. The veteran testified before a hearing officer at the RO in May 1992. He reported that he had been a gunner on a 44 millimeter gun and was given no ear protection at the time (tr. at 3). He stated that, after a while, he could not hear at all (tr. at 3). He also reported that he was never given an audiological examination in service (tr. at 4). He claimed that he had never had tinnitus in the right ear (tr. at 5). He admitted that the hearing tests show that hearing in his right ear is normal (tr. at 5). Audiometric testing performed in June 1992 by VA revealed pure tone thresholds of 10, 15, 5, 20, and 20 decibels for an average of 15 decibels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. Speech recognition scores using the Maryland CNC Test were 96 percent in the right ear. The summary of audiological test results indicated that the veteran had sensorineural hearing loss. The service records show that the veteran had a history of damage to and hearing loss of the right ear in service, resolving prior to discharge. The VA examination, performed in June 1992, revealed that the veteran had a sensorineural hearing loss of the right ear. However, the degree of hearing loss shown during and following service does not meet the VA regulatory requirements for service connection. Specifically, [s]ervice connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. 3.385 (1993). The veteran's separation examination indicates that the veteran's hearing (whispered voice) was normal in the right ear at 15/15. Further, the right ear hearing status shown on the June 1992 audiological examination met pure tone and speech recognition criteria. Accordingly, based on this record, the Board concludes that service connection for impaired hearing of the right ear is not established. ORDER Service connection for impaired hearing in the right ear is denied. WARREN W. RICE, JR. 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.