BVA9501059 DOCKET NO. 93-08 422 ) 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: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to January 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1992 from the Newark, New Jersey, Regional Office (RO), which denied service connection for bilateral hearing loss. The RO also denied increased ratings for his service-connected residuals of fragment wounds to the right elbow and forearm and the chest. The veteran submitted a notice of disagreement with respect to the increased rating issues but was not issued a statement of the case. These issues are not inextricably intertwined with the issue currently on appeal, and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting service connection for bilateral hearing loss because it did not take into account or properly weigh the evidence of record, including service medical records, private clinical evidence and statements submitted in support of the claim. He claims that he was assigned to an engineering unit during his two tours of duty in the Republic of Vietnam and was continuously exposed to high frequency noise levels. He argues that the exposure to loud noise and resulting acoustic trauma either caused or aggravated his hearing loss. He argues that his current bilateral hearing loss is attributable to active service; therefore, service connection is warranted. 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 veteran has not submitted evidence of a well grounded claim for service connection for bilateral hearing loss. FINDINGS OF FACT 1. The service medical records establish evidence of bilateral hearing loss at entry into service and do not show either evidence of treatment or evaluation, or any evidence of a decrease in bilateral hearing acuity during active duty. 2. The initial post-service medical evidence of high-frequency hearing loss comes many years after separation from service, and the probative evidence does not relate the current hearing loss to noise exposure or any other incident or event of active service. CONCLUSION OF LAW The veteran has not submitted evidence of a well grounded claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks entitlement to service connection for bilateral hearing loss. The law provides that the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992). In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a disabling disease or injury was incurred during active service or, if pre- existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Notwithstanding the applicable presumptive period, direct service connection may be established by evidence demonstrating that a disease or injury was in fact incurred or aggravated during active service. 38 C.F.R. § 3.303(d). A pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1993). Service 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 threshold 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 initial question for determination is whether the veteran has submitted evidence of a well-grounded claim. The veteran's DD Form 214 reflects that his military occupational specialty was plumber. The veteran contends that his bilateral hearing loss was either incurred or aggravated by continuous exposure to noise while on active duty. The service medical records show evidence of bilateral hearing loss on audiometric examination at entry into service. Audiometric testing in August 1967 revealed decibel levels of 40, 15, 25 and 30 in the right ear and 30, 25, 25 and 40 in the left ear at 500, 1,000, 2,000 and 4,000 Hertz, respectively. (Since there is a presumption that standards from the American Standards Association were used prior to November 1967, the findings have been converted to the International Standards Organization now in use by service departments and VA.). In the report of medical history at entry into service the veteran listed that he did not have or ever had hearing loss, but did note that he had ear, nose, or throat trouble. The service records show that he was seen in September 1968 for complaints of right ear pain without drainage. Physical examination showed greenish exudate in the right ear and it was noted that the eardrum may be perforated. Later that month he was seen for similar left ear complaints. Examination revealed otitis externa, bilaterally, and both ear canals were cleaned of debris. The examiner stated that the tympanic membranes were intact at that time. The records show that he was seen in June and September 1970 for external otitis for which treatment was provided. The service medical records do not contain complaints of hearing loss or any objective medical findings of decreased hearing acuity. On medical examination at separation, an audiometric study was not conducted. It was noted that the veteran's hearing acuity was normal, bilaterally, by whispered voice testing at a distance of 15 feet. At that time, the veteran acknowledged in writing that he had reviewed the medical records, and that his medical condition was excellent and had not changed since the prior physical examination. For these reasons, the Board finds that the service medical records establish evidence of bilateral hearing loss at entry into service and do not show either evidence of treatment or evaluation, or any evidence of a decrease in bilateral hearing acuity during active duty. 38 C.F.R. § 3.303. The veteran filed a claim for compensation at his discharge from service in January 1971; there was no mention of defective hearing. The initial post-service evidence includes a Department of Veterans' Affairs (VA) hospitalization report, dated from January to February 1971, a June 1971 private report of hospitalization and physical examination and a July 1971 report of VA examination. These records do not contain evidence of hearing loss. In essence, the record does not contain probative evidence of sensorineural hearing loss to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The initial post-service medical evidence of hearing loss is shown in an October 1980 private audiometric examination report. At that time, audiological evaluation revealed decibel levels ranging from 60 to 100 at 4,000 Hertz. The comments include a life long history of noise exposure and a questionable positive/negative hearing, bilaterally. This evidence does not indicate that hearing loss either began or was aggravated during active duty. The private medical records next show treatment and evaluation of the ears beginning in July 1987, when he was seen for wax in both ears. In August 1987, the remaining cerumen was removed from the left ear and another audiometric examination was conducted. The examiner indicated that the findings were unchanged from the prior examination in 1980. He was also seen in April 1988 for removal of cerumen from the ears, and in September 1989 for treatment for complaints of pruritus. The veteran underwent private audiometric examination in January 1992. Findings on pure tone air conduction included decibel levels of 20, 15, 25, 55 and 80 in the right ear and 15, 10, 15, 35 and 45 in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz respectively. A July 1992 statement which accompanies that audiometric study states that the reported findings reveal severe high frequency hearing loss, bilaterally. It is not clear from the statement whether the individual who made that statement is an audiologist or other healthcare professional because their credentials are not listed in the statement. In any event, this diagnosis of high-frequency hearing loss comes many years after separation and does not relate the current hearing loss to noise exposure during active duty or any other incident or event of active service. The defective hearing observed at entry into service was mild and involved higher and lower frequencies, while defective hearing observed many years after discharge was primarily sensorineural (high frequency). In fact, the record does not contain probative evidence relating the inception of hearing loss to service, or that a pre-existing hearing loss increased in severity or was otherwise aggravated by noise exposure during active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.306(a). While the veteran has stated that hearing loss has been observed over the past twenty years and that he believes that exposure to loud noise during active duty either caused or aggravated his hearing loss, he has not been shown to be qualified to render such an opinion. We note that his occupational specialty was plumber in service; he received shell fragment wounds from a booby trap but there is no clinical evidence pointing to acoustic trauma in service as the cause of any defective hearing. When first treated for hearing problems after service, the veteran indicated that he had a lifelong history of noise exposure. The Court has held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992), see also Grottveit v. Derwinski, 5 Vet.App. 91, 93 (1993) (Court held that lay assertions of medical causation cannot constitute evidence to render a claim well grounded). For these reasons, the Board finds that the record does not contain supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak, 2 Vet.App. at 610. Consequently, the Board concludes that the veteran has not submitted evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). ORDER The application for service connection for bilateral hearing loss is dismissed. THOMAS J. DANNAHER 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.