Citation Nr: 0001140 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-21 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from June 1942 to October 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1998 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant served on active duty during World War II, specifically, from June 1942 to October 1945. Available personnel records indicate that he served in the European Theater of Operations as a light truck driver assigned to the 29th Armored Infantry Battalion, and that he was awarded the Combat Infantryman Badge. 2. His service personnel records also reflect that he participated in the following battles and campaigns: Normandy, Northern France, the Rhineland, and Central Europe. 3. The appellant's service medical records are presumed lost and are unavailable for purposes of the adjudication of this claim. Efforts undertaken by the RO to obtain these records from the National Personnel Records Center produced negative results. 4. Given the appellant's military service duty assignments and awards/campaigns, a factual basis is established to support his claim that he was exposed to potentially hazardous levels of noise coincident with active service duties. 5. The report of a private audiological examination conducted in June 1998, the appellant had pure tone thresholds of 65-75 decibels at 4,000 Hertz in both ears. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that this claim is well grounded. 38 U.S.C.A. 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons set forth below, the evidence presented reflects that he has a current bilateral hearing loss disability, and that he has presented competent evidence showing incurrence of the disability in service and a plausible basis to link the disability to his service experience in light of relaxed evidentiary standards germane to this case, see O'Hare v. Derwinski, 1 Vet. App. 365 (1991) and 38 U.S.C.A. § 1154(b) (West 1991). Under pertinent law and VA regulations, service connection may be granted if the facts, shown by the evidence, establish that a disease or injury 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, 1111, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). Service connection may also be granted for certain enumerated disabilities on a presumptive basis, including organic diseases of the nervous system, see 38 C.F.R. §§ 3.307, 3.309, or alternatively, with respect to any disease, if all the evidence establishes that the disease was incurred in service, see 38 C.F.R. § 3.303(d). However, entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides: For the purpose of applying the laws administered by VA, 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, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. This regulation, while not a medical definition of hearing loss, does define hearing disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155 (1993). Recent audiometric findings pertaining to the appellant's hearing acuity show pure tone thresholds of 65-75 decibels at 4,000 Hertz in both ears; on that examination, conducted by Greater Knoxville Ear Nose & Throat Associates, P.C., in June 1998, the appellant described a progressively disabling hearing loss over the past 5 years. Under the provisions of 38 C.F.R. § 3.385, it is specifically stated that a hearing disability exists if there is at least one 40-decibel threshold at the specified Hertz frequencies. Thus, a bilateral hearing loss disability compatible with § 3.385 is shown. The issue is therefore whether this hearing loss is attributable to the appellant's period of military service. Unfortunately, there are no service medical records available as it appears the appellant's records were lost or destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The claims file reflects that development efforts undertaken by the RO to obtain the appellant's service records from the NPRC were unsuccessful. NPRC notified the RO on several occasions that no medical records were available due to the 1973 fire. An alternative records search could not be conducted as well in that the appellant did not describe any in-service medical treatment for hearing loss on his NA Form 13055 dated in July 1998. Nevertheless, the available personnel records in the claims file reflect that the appellant served in the European Theater of Operations (ETO) as a light truck driver assigned to Company C of the 29th Armored Infantry Battalion, and that he was awarded the Combat Infantryman Badge. His Army qualification papers indicate that he hauled ammunition, equipment and personnel during day, night and blackout operations for 18 months in the ETO. In addition, these records show that he participated in the battles and campaigns of Normandy, Northern France, the Rhineland, and Central Europe. In his substantive appeal of December 1998, the appellant described exposure to loud artillery fire upon reporting for duty in Normandy and on a later occasion when he was near an American artillery unit that was firing its heavy guns. He stated that he started noticing hearing loss in both ears while he was still in the military, but that he did not want to complain given that his symptoms were relatively minor in nature compared to the suffering of other soldiers. He added that his hearing loss continued through the years to the point that it was currently significant in severity. Further, the appellant stated that he did not work anywhere after his military service where he was exposed to loud noises. Pension records in the file reflect that he last worked in 1982 in the field of construction, however, there are no records which either confirm or deny post-service exposure to loud noises. Although there is no record evidence of in-service hearing loss, given the fact that all of the appellant's service medical records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This obligation is further heightened by the fact that the appellant has established himself as a combat- veteran under 38 U.S.C.A. § 1154(b) in view of the available personnel records which show that he was awarded the Combat Infantryman Badge and that he participated in a number of battles and campaigns in the ETO during World War II. Hence, as there is no clear and convincing evidence to the contrary, the Board must accept as fact the appellant's contentions that he was exposed to artillery noise and weapons firing during his active service, and moreover, that he first suffered hearing loss during such service. 38 U.S.C.A. § 1154(b). The finding of in-service hearing loss caused by exposure to combat weapons firing is entirely consistent with the circumstances and conditions of this appellant's military service in World War II under 38 C.F.R. § 3.303(a) and therefore, with consideration of the relaxed evidentiary standards that must be applied to the facts in this case under O'Hare and section 1154(b), his contentions expressed in his December 1998 substantive appeal will also be deemed by the Board to be highly credible and probative as to the question of a medical nexus between his current hearing loss disability and noise-induced hearing loss incurred in service. Cf. Kessel v. West, 12 Vet. App. 477 (1999) (en banc) (prior holding in Arms v. West, 12 Vet. App. 188 (1999) overruled to the extent that Arms could be read as establishing or implying in dicta that application of section 1154(b) to the merits of a case could result in the award of service connection without also establishing sufficient evidence of all the elements of service connection, namely, a current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service). The Board is of course aware that there is no competent medical evidence in this case which addresses whether the appellant's current hearing loss disability was etiologically related to his wartime exposure to artillery fire as he alleges. However, in a merits-based review of the claim, applicable regulations provide that a postservice initial diagnosis of a disability may establish entitlement to service connection. As alluded to above, 38 C.F.R. § 3.303(d) states that service connection may be granted for any disease diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. In view of the above, the Board is of the opinion that the appellant has met the requirements to establish service connection for hearing loss. The clinical findings showing bilateral hearing loss in the higher frequencies noted on the recent audiological examination conducted in June 1998, when read together with his service record, which is positive for weapons firing noise exposure in a war zone and a duty assignment in a direct combat-support role that lasted 18 months, convinces the Board that, notwithstanding the absence of clinical-medical proof, the unique facts in this case require that all reasonable doubt as to whether a bilateral hearing loss disability was incurred in service must be accorded to the appellant, which thereby establishes entitlement to service connection. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1999). ORDER Service connection for bilateral hearing loss is granted. A. BRYANT Member, Board of Veterans' Appeals