BVA9502326 DOCKET NO. 93-08 846 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to March 1946. In an October 1992 statement, the veteran asserted that he was unable to work due to service-connected disabilities. That matter, which is not inextricably intertwined with the issues on appeal, is referred to the regional office (RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the bilateral sensorineural hearing loss and tinnitus that he now has are the result of acoustical trauma that he experienced while in active service. The veteran further states that his hearing got worse while he was in military service and has continued to get worse since his discharge. The veteran states that while he was in service he was told that he had a hearing loss and that hearing aids would not help him. He states that the Army is responsible for his inability to hear because if the Army knew that he had a hearing loss he should not have been assigned to an infantry unit so that he was exposed to loud noise. 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 is against the veteran's claim for service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Hearing loss of the left ear was not shown during service and hearing loss of the right ear was not shown to have increased in pathology during service; the hearing loss that was demonstrated years after service is unrelated to service. 3. Tinnitus was not shown during service; the tinnitus that was first demonstrated years after service is unrelated to service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153, 1154(b), 5107 (West 1991); 38 C.F.R. § 3.303, 3.306, 3.307, 3.309, 3.385 (1993). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The Department of Veterans Affairs (VA), therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. In his substantive appeal, the veteran referred to hospital treatment during service during which his hearing was reportedly checked; the RO secured available service medical records, including hospital records. He also reported being treated in about 1965 at a clinic in Jacksonville, Florida. An April 1982 statement from a doctor at a clinic in Jacksonville is of record. While there is reference to treatment in about 1967, the treatment was noted to be for disorders unrelated to the current appeal. The veteran otherwise indicated that he was treated at the Gainesville VA facility, and the RO sought those records which have been associated with the claims file. At the time of his personal hearing, the veteran testified to receiving treatment from "Dr. Lofton." Hearing transcript (T.) at 6. It is noted that the record contains a statement from John W. O'Loughlin, M.D., which discusses pertinent treatment. Since it appears that the RO has obtained all relevant records, the VA has fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110. Where a veteran served for 90 days in active service, and sensorineural hearing loss develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (1993). This presumption can be rebutted by affirmative evidence to the contrary. See 38 U.S.C.A. § 1113. Service connection may be granted for any disease or injury diagnosed after discharge, when all of the evidence establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). A pre-existing disease or injury will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Determinations regarding service connection are to be based on review of the entire evidence of record. See Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. If the veteran was engaged in combat with the enemy while in active service, the Secretary shall accept lay or other evidence as sufficient proof of service connection if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 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. See 38 U.S.C.A. § 1154(b). The issue of service connection is a factual determination to be based on the facts of each case; "the law does not create a presumption in favor of combat veterans." See Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). A lay person is capable of providing evidence of the existence of symptoms, but is not qualified to make medical judgments regarding causation or diagnosis. See Espiritu v.Derwinski, 2 Vet.App. 492, 494 (1992). "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." See Hensley v. Brown, 5 Vet.App. 155, 160 (1993). The determination of whether the veteran has a ratable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. Department of Veterans Affairs, 38 C.F.R. Part 3; Disability Due to Impaired Hearing, 59 Fed. Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). II. Entitlement to Service Connection for Hearing Loss and Tinnitus The veteran claims that sensorineural hearing loss and tinnitus are the direct result of being exposed to loud noise while he was in military service. The veteran further states that his preservice hearing loss of the right ear got worse while he was in military service and has continued to get worse since his discharge. During the RO hearing held in October 1992 the veteran stated that he tried to volunteer for the Navy and the Air Force prior to being inducted by the Army in 1942 but that the other services turned him down because of his hearing problem. T. 2. The veteran's spouse stated during the hearing that the veteran had hearing problems from the time that she first met him in 1946. T. 5. The veteran also submitted numerous statements from friends, including men with whom he had served and who indicated that the veteran had trouble hearing from the point he entered service. The veteran's service records show that he served in the European theatre from October 1943 until August 1944 and that he participated in the campaign in northern France as a machine gunner. The veteran's service medical records show that at the time he was inducted into the military service in October 1942 he had 10/20 hearing in his right ear and 20/20 hearing in his left ear. The remainder of the veteran's service medical records are silent regarding any reports of problems with his ears or hearing or any symptoms or clinical findings of hearing loss or tinnitus, although the medical records have extensive documentation of other treatment. The report of a VA examination conducted in October 1946 states that the veteran could hear conversation in both ears at 20 feet. No ear abnormalities were noted, and there were no pertinent findings. The report of a VA audiological examination conducted in June 1984 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 xxxx 75 LEFT 30 50 35 xxxx 75 Speech audiometry revealed speech recognition scores of 84 percent in the right ear and of 92 percent in the left ear. The report of the examination shows that the veteran reported a decrease in hearing sensitivity since his previous examination in August 1983 and that he complained of tinnitus. The examiner stated that the puretone decibel thresholds showed a 30 decibel shift from the examination conducted in August 1983. The examiner's stated assessment was mild to moderate sensorineural hearing loss through 2000 Hertz, sloping to a severe/profound loss in the high frequencies. In July 1984 the veteran received an examination by an ear, nose, and throat specialist for the purpose of obtaining hearing aids. The report of that examination states that the veteran reported a gradual decrease in his hearing ability over the previous three years. The veteran also reported having continuous tinnitus, greater in the right ear than in the left. The veteran denied ever having ear surgery, ear infections, venereal disease, hypertension, or using otologic drugs, but did report that he had been a machine gunner while in military service. The examiner's impression was that the veteran had a dramatic decrease in hearing over the past year with an unknown etiology. A VA audiological examination conducted in July 1984 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 40 70 75 LEFT 30 30 35 70 70 In the report of an ear, nose, and throat examination conducted in conjunction with the audiometric testing the veteran reported a decrease in his hearing ability over the previous year and that he had had tinnitus in the right ear for over 10 years. A VA audiological examination conducted in November 1984 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 xxxx 75 LEFT 35 45 50 xxxx 75 Speech audiometry revealed speech discrimination scores of 88 percent in the right ear and of 92 percent in the left ear. The report of the November audiometric examination states that the veteran reported that his mother had also had a hearing loss. A VA audiological examination conducted in February 1991 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 75 xxxx 80 LEFT 55 50 60 xxxx 80 Speech audiometry revealed speech discrimination scores of 56 percent in the right ear and of 72 percent in the left ear. The examiner's impression following physical examination and review of the aforementioned audiologic report was presbycusis with high frequency hearing loss component. The diagnosis of sensorineural hearing loss was confirmed during VA examination of December 1991. A VA audiological examination conducted in June 1992 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 85 xxxx 95 LEFT 60 60 75 xxxx 90 Speech audiometry revealed speech discrimination scores of 64 percent in the right ear and of 72 percent in the left ear. The examiner noted, however, that the puretone thresholds appeared to be inconsistent with the acoustic reflexes and the veteran's ability to respond at normal conversational levels. The veteran submitted a report from John W. O'Loughlin, M.D., stating that an audiometric examination conducted in October 1992 revealed the following puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 65 80 90 90 LEFT 70 60 80 80 90 Speech audiometry revealed speech discrimination scores of 92 percent in the right ear and of 88 percent in the left ear. Dr. O'Loughlin also stated that the veteran sustained severe acoustic trauma while in the service and that his current hearing loss was due to the acoustical trauma that he received while in the military service. The physician did not provide the bases for his opinion. As to the veteran's current claim for service connection, it is noted by the Board that he originally filed a claim for compensation in April 1946 due to injury to his right leg and due to stomach problems. He did not claim any hearing loss or tinnitus at that time. He was granted service connection for the right leg injury in 1946. The veteran has undergone numerous physical examinations and administrative procedures in conjunction with his entitlement to compensation based on the leg injury and did not assert a hearing problem until October 1991, when he filed the request for service connection for hearing loss and tinnitus. A review of the evidence of record demonstrates that service connection for hearing loss and tinnitus is not warranted. The service medical records show that the veteran had a hearing loss when he entered active service. There were no reported symptoms or clinical findings of hearing loss or tinnitus occurring while the veteran was in service or within one year following discharge. A physical examination conducted seven months after he was discharged revealed the veteran could hear normal conversation at 20 feet in both ears and makes no reference to tinnitus. The veteran's assertion that his preservice hearing loss increased in pathology during service or that a left ear hearing loss began during service is clearly contradicted by the above examination findings. Further, the veteran stated during the RO hearing in October 1992 that he could not clearly recall the date, but he thought that his first post-service hearing examination was in the 1960's, or at least 15 years after he was discharged from service. The absence of treatment until years after service is not indicative of a hearing loss beginning or increasing in pathology as a result of service. It is also noted that the post-service treatment records that were completed before the veteran's claim for monetary benefits do not associate hearing loss or tinnitus to service. For example, July 1984 records refer to a 3-year history of a decrease in hearing ability. A February 1991 report describes the hearing loss as presbycusis. The veteran submitted statements from men he served with during his military service who recalled that he had a hearing loss while in service, but these statements are consistent with the documented hearing loss that the veteran had on entry into service. The veteran's spouse's assertion that the veteran had a hearing loss since 1946 is also consistent with the hearing loss existing at the time of entry into service. Although the veteran submitted a recent statement from his private physician stating that his current hearing loss was caused by acoustical trauma that the veteran experienced while in service, that opinion appears to be based on an incomplete, and thus inaccurate, factual premise. That is, the statement refers to the veteran's reported history of accoustical trauma during service, but there is otherwise no reference to the fact that the veteran entered service with a hearing loss of the right ear. An opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet.App. 458 (1993). The veteran's complaints of tinnitus were first shown decades after service, at a time too remote from service to be related thereto. As noted earlier, due consideration must be afforded to the time, place, and circumstances of the veteran's service. See 38 U.S.C.A. § 1154(b). In this case, the veteran has submitted lay evidence of service incurrence or aggravation of hearing loss. Nevertheless, it has been noted by the Board that such statements from the friends and the veteran's wife are initially consistent with the fact that the veteran had a preexisting hearing loss. Moreover, the evidence is otherwise clear and convincing so that service connection is rebutted - that is, the normal findings on examination shortly after service, the absence of audiologic treatment for years after service, and the lack of probative evidence linking a hearing loss or tinnitus to service. Consequently, the veteran's claim for entitlement to service connection for hearing loss and tinnitus is denied. ORDER The veteran's claim for entitlement to service connection for hearing loss and tinnitus is denied. M. SABULSKY 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.