BVA9503342 DOCKET NO. 92-12 422 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) from a July 1991 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's claim for service connection for a bilateral hearing loss. The Board remanded the case in November 1993 for additional development, and it was returned to the Board in November 1994. Subsequent to the 1991 decision of the RO, the veteran claimed service connection for tinnitus (ringing in the ears). The Board also notes that the veteran has requested that the RO consider a claim for service connection for loss of teeth. Records in his claims folder indicate that this issue was referred to the local VA office in the jurisdiction of his residence. However, there is no showing in the claims file that the merits of this issue have been addressed by the RO, and the veteran has indicated that he has not been contacted regarding this issue. Finally, the RO is advised that a claim for compensation may be considered a claim for pension. These matters are, therefore, referred to the RO for appropriate action since they have not been developed for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he has a bilateral hearing loss primarily as a result of acoustic trauma that he sustained during service while assigned to a field artillery unit. He also points out that he sustained a shrapnel wound to his right leg while in combat and argues that the blast from this and other mortar and rocket attacks contributed to his hearing problem, noting that his hearing acuity has progressively worsened over the years since he was discharged from service. His representative asserts that there is sufficient evidence on file, when considered in the aggregate, to warrant a favorable ruling and that the type of hearing loss claimed by the veteran is consistent with the circumstances of his service. He also questions the accuracy and reliability of whispered voice testing, which was used in measuring the veteran's hearing acuity at the time he was discharged from 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 veteran's claims for service connection for bilateral hearing loss. FINDING OF FACT The veteran's bilateral hearing loss is attributable to service. CONCLUSION OF LAW Bilateral hearing loss was incurred as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records do not reflect evidence of treatment for hearing loss. At his November 1945 separation examination, his hearing acuity was 15/15 on whispered voice testing, and he had no auricular complaints. However, other service records show that he sustained a shrapnel wound to his right leg while engaging in combat and, as a result, was awarded the Purple Heart Medal. His military occupational specialties included serving for two years as a gun crewman in a medium artillery unit and later as light truck driver (sometimes acting as a weapons carrier). He was discharged from service in November 1945. Within months after being discharged from service, the veteran filed a claim for VA compensation benefits (related in part to his shrapnel injury in service). In his application and accompanying statement, he made reference to his shrapnel wound and treatment that he received in the aftermath of this injury, but there was no mention of a bilateral hearing loss. He was also given a VA examination in May 1947, but it does not appear that his hearing acuity was tested at that time. In May 1979, the veteran was referred to Kenneth S. Gerwin, M.D., for evaluation of complaints of dizziness, nausea, and frontal headache. Dr. Gerwin reported that the veteran had had prior episodes of similar symptoms in 1963 and 1970 and that he had received previous treatment from Dr. James Thompson and Dr. Talmage, respectively. The doctor said that the veteran had a history of a high frequency sensorineural hearing loss due to noise exposure. The diagnostic impression was vestibular neuronitis. If symptoms persisted, an audiogram would be scheduled. Audiometric studies of the veteran's hearing acuity were conducted by Sharir Raz, M.D., in March 1985. Auditory testing revealed the presence of a high frequency sensorineural hearing loss, bilaterally. In a subsequent statement, Dr. Raz reported that he treated the veteran on two occasions during 1985 and that the veteran had had a bilateral sensorineural hearing loss since exposure to artillery guns and work-related noise. Dr. Raz also mentioned that the veteran had a hearing test conducted at a private hospital in 1975, but that it was noncontributory. In April 1991, the veteran claimed service connection for a bilateral hearing loss. In his application and in an accompanying statement, he alleged that army personnel were aware of his hearing problem at the time of his separation examination (claiming that it was documented during a hearing test given at that time) and that he had been given a hearing test by a civilian doctor, who is now deceased, as early as 1955. He said he first noticed his hearing problem during service, but that he was told that it was common among soldiers in the artillery and that it might clear up in the future. There are numerous lay statements on file, which were received at the RO in June 1991, lending support to the veteran's claim. Some statements are from fellow servicemen and others are from members of his family (including his wife) who have known him for many years. These statements are to the effect that his hearing has progressively worsened since service and that it is attributable to service. While testifying at a December 1991 hearing, the veteran claimed that he sustained acoustic trauma during service as a result of his training and assignment to an artillery unit. He acknowledged that he was not treated for a hearing defect while on active duty, but said that he was routinely exposed to loud noises from guns during service without the benefit of hearing protection. He said that two fellow soldiers who were standing in front of him when the shell exploded also sustained acoustic trauma and were discharged from service because of this. He testified that a doctor who examined him during his separation examination handed him a piece of paper showing that he had a hearing loss in both ears, but that, because he was anxious to get home, he did not immediately file a claim (he also said he could not locate this piece of paper). In other testimony, the veteran said he mentioned that he had a problem with his hearing when he filed a claim for VA compensation benefits shortly after service, but that nothing was done about it, and that a civilian doctor (who is now deceased) diagnosed this problem after a hearing test was conducted some 10 years after service. He pointed out that his hearing problem continues to affect him daily. His representative argued that whispered voice testing, the means for measuring hearing at the time that the veteran was in service, was not an accurate test for determining the amount of hearing loss. The Board remanded the case in November 1993 so that the veteran could be given the opportunity to submit evidence documenting treatment for his bilateral hearing loss since service, especially any evidence that might show treatment for a hearing problem prior to that shown in the evidence already on file. The majority of the evidence that was submitted is duplicative of that already on file. He has indicated that doctors who examined his hearing during the 1950's and 1960's are either deceased or retired and that, because of this, there is no way of obtaining copies of their treatment records. II. Legal Analysis The veteran's claim is well-grounded (not inherently implausible) within the meaning of 38 U.S.C.A. § 5107(a). All relevant facts have been developed to the extent possible. Therefore, VA's duty to assist him in developing evidence pertinent to his claim has been satisfied. Id. Service connection may be granted for a disability resulting from a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including a bilateral sensorineural hearing loss, when manifested to a compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The provisions of 38 U.S.C.A § 1154(b) provide for a lessened evidentiary burden of proof if a disorder(s) claimed by a veteran is consistent with the circumstances of his service, such as when a combat veteran who spent time in an artillery unit ultimately develops a hearing loss. This VA legal authority does not, however, provide a conclusive presumption of service incurrence. It may be rebutted by clear and convincing evidence to the contrary and must still be weighed against the other evidence on file and assigned relative probative value. Id. There is no evidence reflecting complaints of hearing loss during service, including at the time of the veteran's separation examination, when his hearing acuity was within normal limits based on the testing conducted then. However, despite the lack of medical evidence showing hearing loss in service, a nexus to the current disability has been shown. There is no doubt that the veteran was subjected to acoustic trauma on numerous occasions in service, as he was assigned for two years to an artillery unit during World War II and received the Purple Heart Medal as a result of receiving a shrapnel wound during an enemy attack, conclusively establishing that an acoustical traumatic event occurred. There is probative medical evidence dated after service reflecting that the veteran has a history of a high frequency sensorineural hearing loss due to noise exposure. Admittedly, one of the doctors attributes the inception of the veteran's hearing problems partially to other problems. However, he also attributes the etiology to exposure to artillery gun fire. This is consistent with the nature and circumstances of the veteran's service, and it certainly is consistent with the lay statements submitted in support of the claim, even though the individuals lack the medical expertise and training to comment on matters requiring professional expertise, such as the etiology of his hearing loss. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Nevertheless, the testimony is consistent with the medical and other supporting evidence and effectively closes the gap in the chain of continuity of symptomatology, and the etiology of the underlying hearing condition has been shown. The doctrine of reasonable doubt is for application where, as here, the evidence is in relative equipoise on the question of causation. Such doubt must be resolved in the veteran's favor. Consequently, a favorable disposition of the claim is entered. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for bilateral defective hearing is granted. M. CHEEK 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.