BVA9504448 DOCKET NO. 90-24 071 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Kevin J. Barry, Attorney WITNESSES AT HEARING ON APPEAL Appellant and A. Garrison ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant served with the U.S. Naval Reserve from July 1927 to March 1941, with many periods of active duty for training during that time span, including the period from September 7 through September 20, 1940. By decisions of August 1950 and December 1990, the Board of Veterans' Appeals (the Board) denied the appellant's claims of service connection for hearing loss. In 1991, the appellant submitted additional evidence seeking to reopen his claim of service connection for bilateral hearing loss. This matter again came before the Board on appeal from a February 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which determined that the evidence submitted by the appellant was not new and material and, accordingly, his claim was not reopened. By decision in March 1993, the Board upheld this determination. This matter is currently before the Board pursuant to a memorandum decision of the United States Court of Veterans Appeals (the Court), [citation redacted], which held that the evidence submitted by the appellant since the Board's December 1990 decision was new and material, thereby vacating the Board's March 1993 decision, and remanding the case to the Board for a new determination. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection should be established for his bilateral hearing loss because it resulted from an incident which occurred while he was on active duty for training in 1940. He claims that during gunnery practice, it was his job to stand near the guns. When one was fired, he states he felt a shock that went from his head to his feet. He reports that he went to sick bay shortly thereafter complaining about his hearing, but that a pharmacist's mate looked at his ear and put cotton in it. He asserts that when he was examined in September and November 1940, the same physician performed the examinations, and that his complaints concerning his hearing problem were ignored. He refers to statements from fellow servicemen which confirm that he had difficulty hearing during service, and to opinions from physicians which attribute his hearing loss to in- service acoustic trauma. He points out that no audiometric tests were conducted in 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 evidence supports the claim of service connection for bilateral hearing loss. 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 service medical records show no complaints or findings of hearing problems during the appellant's period of active duty for training in September 1940. 3. On re-examination for active duty in March 1941, hearing tests disclosed abnormal hearing, bilaterally. 4. The appellant has submitted competent lay testimony verifying an episode of acoustic trauma in service. 5. There is competent medical evidence of record linking the veteran's bilateral, sensorineural hearing loss to acoustic trauma in service. CONCLUSION OF LAW The appellant's bilateral, sensorineural hearing loss was incurred during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The initial question before the Board is whether the appellant has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The Court has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In addition, in Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court held that a claim must be accompanied by evidence (emphasis in original). In this case, the available service medical records, the appellant's statements, including his testimony at a hearing at the RO, and statements from physicians and service comrades concerning the onset of his hearing loss are sufficient to conclude that his claim is well grounded. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A.§ 1131. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed.Reg. 60,560 (1994)(to be codified at 38 C.F.R. § 3.385). The Court, citing Ledford v. Derwinski. 3 Vet.App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet.App. 155 (1993), that the Court has held that the above regulation, although prohibiting an award of service connection where audiometric test scores are within the established limits, does not prevent a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. The service medical records disclose that the appellant was found to be physically qualified for training duty on September 5, 1940, and was released from training duty with no ill effects found on September 20, 1940. On examination for active duty in November 1940, a "watch" hearing test was 40/40, a coin click test was 20/20, and a whispered voice hearing test was 15/15, all bilaterally. No disease or defects of the ears were noted. The appellant was apparently rejected for service due to a left varicocele. On re-examination for active duty in March 1941, a "watch" hearing test was 2/40 in the right ear and 5/40 in the left ear; a coin click test was 10/20 in each ear; a whispered voice test was 7/15 in the right ear and 5/15 in the left ear; and a spoken voice test was 15/15, bilaterally. There was no reported disease or defect of the ears. An undated page of an examination report shows that the appellant was not physically or mentally qualified for active duty or service in the reserve. The defects listed were defective vision, "deaf," speech defect and painful testes. On a certificate of discharge dated March 28, 1941, the appellant's disqualifying defects were left varicocele; testes painful and swollen; defective hearing, both ears; and "incoordination" speech. Of record are statements from two men who reported having served with the appellant during his period of active duty for training in September 1940. The statements were to the combined effect that the affiants had observed the appellant on a daily basis, and that he had told them that he was having trouble with his ears. In addition, it was noted that he did not hear well at the end of the tour. In a statement dated in September 1949, J. F. Johnson, M.D., indicated that he had treated the veteran from October 1940 to April 1941 for an ear condition which reportedly started during the firing of guns aboard ship in service in September 1940. The appellant complained that he could not hear. An examination disclosed fluid from the ears and ruptured ear drums. The diagnosis was ruptured eardrums. In a statement dated in April 1950, E. S. Bennett related that he had served with the appellant in September 1940. During gun practice, he reported he was standing near the appellant and observed that he "suddenly put his hands to his head as the gun was fired." The appellant stated that he had felt something go through him. He later told the affiant that he had gone to sick bay and he had cotton in his ears. The writer indicated that he observed that the appellant did not hear well for the rest of the tour, and was complaining about his ears. He also commented that he could not recall the appellant having hearing trouble prior to this incident. A. A. Scheer, M.D., reported, in a statement dated in March 1979, that he had evaluated the appellant that month and concluded that he had a high frequency hearing loss in each ear due to degeneration of the auditory nerve. Dr. Scheer commented that, with the appellant's history of exposure to acoustic trauma during service, it was entirely probable that it was the beginning of his problem. The appellant was examined by H. R. Giancarlo, M.D., in February 1981. He reported that the appellant had a prior history of exposure to gunfire in service. Following audiometric tests, it was noted that the appellant had a high frequency sensorineural hearing loss, bilaterally. Dr. Giancarlo concluded that the audiometric pattern was consistent with acoustic trauma such as gunfire. The appellant was seen by S. R. Isaacson, M.D., in September and October 1984. He related a history, provided by the appellant, of exposure to gunfire on ship. On the audiological evaluation in September 1984, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 75 85 LEFT 25 30 50 100 NR The diagnosis was mild to moderate severe bilateral sensorineural hearing loss. Dr. Scheer opined in a January 1991 statement that over the years there had been further progression of the appellant's hearing loss. With the history of exposure to extreme acoustic trauma, he indicated that there was "probably a definite causal relationship between the [appellant's] neurosensory hearing loss and the [in-service] acoustic trauma." Dr. Giancarlo reported in a February 1991 statement that he had seen the appellant the previous month for a complete audiological examination, the results of which indicated a bilateral sensorineural hearing loss. It was noted that the "[h]earing problem started c/o gunfire." Dr. Giancarlo stated that the tests were consistent with some degree of exposure to excessive "nosie [sic]," and that some degree of the loss was also most likely due to presbycusis. The Board readily acknowledges that the appellant appears to have bilateral hearing loss which meets the criteria set forth in 38 C.F.R. § 3.385. The question which must be resolved is whether the hearing loss had its onset during the appellant's period of active duty for training. The evidence in support of his claim consists of his statements and hearing testimony that he was subjected to acoustic trauma during service and had complaints concerning hearing problems while on board the U.S.S. Simpson. In addition, the appellant has provided lay statements from several men who reported having served with him, and who wrote their statements within ten years of the incident they described. Finally, there are statements from physicians establishing a relationship between the appellant's in-service noise exposure and his subsequent hearing loss. Although there is no indication in the service medical records evidencing that the appellant complained of hearing difficulty, there is ample evidence documenting his exposure to acoustic trauma and the fact that he had trouble hearing while on active duty for training in September 1940. A fellow serviceman described the incident which prompted the appellant to seek treatment for his ears. While the lay, former serviceman is not competent to make a diagnosis that the appellant had defective hearing at that time, he clearly is competent to report his observations, including that the appellant appeared to have difficulty with his hearing after the specified incident. See Cartright v. Derwinski, 2 Vet.App. 24,25 (1991). Moreover, several physicians have concluded over the years that the appellant's hearing loss is consistent with exposure to acoustic trauma. It is significant that there is no competent evidence of record rebutting the statements that the appellant was subjected to noise exposure in service. In this regard, it is noted that the hearing test conducted in March 1941 revealed abnormal findings. The Board also notes that Dr. Johnson treated the appellant from October 1940 to April 1941 for complaints including difficulty hearing. This tends to confirm to the undersigned the assertion that his hearing loss was related to service, as the appellant sought treatment for it almost immediately following his September 1940 period of active duty for training. There is no indication that the appellant was exposed to excessive noise thereafter during the interim between September 1940 and March 1941. Indeed, he has submitted a job description of civilian employment from that period to establish that he was not exposed to noise other than in service. Under the benefit of the doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). Such a conclusion cannot be made in this case. Under the circumstances in this case, the Board finds that the entire evidence now of record supports the appellant's claim of entitlement to service connection for bilateral hearing loss. ORDER Service connection for bilateral hearing loss is granted. J.F. GOUGH 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.