92 Decision Citation: BVA 92-21457 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 88-45 382 ) DATE ) ) ) THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had recognized service during World War II with guerrilla units and the Philippine Commonwealth Army followed by subsequent service in the Philippine Commonwealth Army from February 1946 to May 1952. He received an undesirable discharge from this latter period of service. This matter is before the Board on appeal from an August 1986 rating decision by the Washington, D.C., Regional Office of the Department of Veterans Affairs (VA). The notice of disagreement was received on December 2, 1986. The statement of the case was issued on December 31, 1986. A substantive appeal (VA Form 1-9) was received on January 15, 1987. A hearing was held before a rating board at the San Francisco, California, Regional Office on June 2, 1988. The case was received by the Board on August 24, 1988, and docketed on September 1, 1988. A written presentation from the veteran's representative, The American Legion, dated October 28, 1988, was subsequently received. On March 27, 1989, the Board remanded the claim for an attempt to obtain medical records pertaining to the period of service from 1946 to 1952 and for a current audiometric examination of the veteran. An examination was performed in June 1991 and additional medical records were obtained. By a rating decision of September 1991 by a rating panel at the Manila, Republic of the Philippines, Regional Office, the prior denial of the claim was confirmed and continued. A supplemental statement of the case was issued on October 9, 1991. The veteran testified at a hearing on February 6, 1992, at the San Francisco, Regional Office; by a decision dated February 21, 1992, the hearing officer confirmed and continued denial of the claim. Another supplemental statement of the case was issued on April 13, 1992. The case was received at the Board of Veterans' Appeals on May 27, 1992, and docketed on June 26, 1992. The file was referred to The American Legion on June 26, 1992, and an additional written presentation dated July 7, 1992, was later received. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that at the time of his discharge in 1946 he suffered from defective hearing caused by heavy cannon fire. He states also that in 1985 he sustained a mortar injury in combat in 1945 which resulted in diminishment of hearing. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C. § 7104 (1992), following review of all evidence and material of record in the claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that a preponderance of the evidence is against the claim for service connection for bilateral defective hearing. FINDINGS OF FACT 1. The VA has assembled the evidence required for proper adjudication of the issue on appeal. 2. Defective hearing was not documented during service. 3. Bilateral sensorineural defective hearing was not demonstrated until many years after service and is not shown to be related to service or to any event occurring during service. CONCLUSION OF LAW Bilateral defective hearing was not incurred in or aggravated by service and sensorineural defective hearing may not be presumed to have been incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(a), 7104 (1992); 38 C.F.R. §§ 3.307, 3.309 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Denial of a prior claim for service connection for defective hearing was upheld by the Board of Veterans' Appeals by a decision dated September 25, 1980. That determination is final with respect to the evidence then of record (See 38 U.S.C. § 7105 (1992)), but the Board finds that additional material received since that determination satisfies the criteria established by the United States Court of Veterans Appeals for recognition as "new and material" evidence within the meaning of 38 U.S.C. § 5107(a) (1992) and 38 C.F.R. § 3.156(a) (1991). See Colvin v. Derwinski, 1 Vet.App. 171 (1991) and Smith v. Derwinski, 1 Vet.App. 178 (1991). Consequently, the claim is reopened, and the present decision will address the question of whether all of the evidence of record, both old and new, is sufficient to establish that defective hearing was incurred in or aggravated by service. Manio v. Derwinski, 1 Vet.App. 140 (1991). The Board finds that the veteran's claim for service connection for defective hearing is well grounded within the meaning of 38 U.S.C. § 5107(a) (1992). That is, it is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find further that the statutory obligation of the VA to assist in the development of the evidence to support a well-grounded claim has been satisfied. Regarding the adequacy of the development of this case, we note that the appeal was remanded in March 1989 to confirm the presence of defective hearing at the present time and to prompt further action to obtain additional service records. No additional records for the period from 1946 to 1952 were found, but the Board is satisfied that the effort to obtain the records was adequate and that there remain no further avenues for location of such records. With respect to the veteran's post service hearing status, we note that the veteran was requested by letter in September 1978 to submit medical records concerning post service medical evidence concerning his deafness but that none were received. Attempts to obtain the same information were made at hearings in June 1988 and February 1992 without success. We must therefore conclude that no further medical evidence is available and that no additional efforts to obtain such evidence are warranted at the present time. The RO has certified that the veteran was in missing-in- action-status from April 1, 1944, to January 24, 1945 and in recognized guerrilla service from January 25, 1945, through January 14, 1946, with the exception of a brief period in June 1945 and a lengthier period from June 1945 to November 1945 when he was absent without leave. Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines pursuant to the military order of the President of July 26, 1941, including recognized guerrilla service, is countable service for VA compensation purposes. 38 U.S.C. § 107(a) (1992); 38 C.F.R. §§ 3.8, 3.9 (1991). The above service dates were set forth in an undated certification sheet submitted by the veteran which was received in December 1986. They conflict somewhat with a prior certification dated in November 1978, which shows recognizable service as a guerrilla from April 22, 1945, through February 1, 1946, followed by regular Philippine Army service from February 2, 1946, through February 14, 1946. It is impossible to reconcile the discrepancies in the current record, but the conflict does not affect the adjudication of the present claim. The latter period of Philippine Army service which extended from 1946 through 1952 would have been countable service only through the end of July 1946; however, none of that service is countable for the present determination since the veteran received a less than honorable discharge. 38 U.S.C. § 101(2) (1992); 38 C.F.R. § 3.12 (1991). II. ANALYSIS Service connection may be granted for disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (1992). Certain diseases identified by statute, including organic disease of the nervous system (including sensorineural defective hearing), may be recognized as service connected if documented to a degree of 10 percent or more within one year after separation. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (1992); 38 C.F.R. §§ 3.307, 3.309 (1991). An additional regulation applies to claims involving defective hearing. Service connection may be granted for impaired hearing at the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz, as measured by pure tone and speech recognition criteria. However, the hearing status shall not be considered service connected when the thresholds for the above frequencies are all less then 40 decibels; the thresholds 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; effective on and after May 3, 1990. For many years before May 3, 1990, a VA adjudication manual contained a substantially equivalent nonregulatory definition. Manual M21-1, Ch. 50. The available service medical records for the period of guerrilla service show treatment for various disorders but contain no reference to complaints or findings of defective hearing. In a processing affidavit dated February 2, 1946, it was reported that the veteran had incurred no wounds or illnesses during service. The record also contains medical records from the period of Philippine Army service dated as late as July 1946, including the report of a separation examination dated January 18, 1946, which shows hearing acuity as 15/15 in each ear. The post service medical records include a private audiogram submitted by the veteran in August 1987 showing defective hearing in both ears (the audiogram is undated but indicates that the veteran was 64 years of age, which would date it at about 1987). Bilateral sensorineural hearing loss (profound in the left ear) was documented on an audiometric study by the VA in June 1991. Since this was many years after separation, the medical record provides no basis for a direct or presumptive grant of service connection. In support of his claim the veteran has submitted a service department medical examination dated February 19, 1946, a statement dated in November 1978 from J. C. Umipig, and testimony at two hearings on appeal concerning the circumstances of the onset of hearing problems. The Board does not have any reason to dispute the statement that the veteran was exposed to the noise of explosives in combat. The area of dispute relates to whether the acoustic trauma resulted in impairment of hearing. The service department examination report dated February 19, 1946, showed a hearing acuity of 15/20 in each ear. The report was dated only one month later than the January 18, 1946, separation examination report which showed normal hearing (15/15); it was evidently prepared in connection with continued service with the Philippine Army. While it was prepared after the end of the veteran's countable service, the February report is relevant to the claim since, if accepted at face value, the figures shown therein would show a hearing defect. We find that the February 1946 hearing acuity figures are suspect. Both the January and February examination findings were reported on preprinted forms. In the box for hearing scores, the January form contained the preprinted inscription " /15" whereas the February form had " /20". For reasons which are unexplained in the record, the clinical findings reported on the two forms (at least those that can be read on a poor photocopy) are identical to the January figures, including three pulse figures, two blood pressure figures, urinalysis information (specific gravity), height, and weight. The conclusion to be drawn is that no separate examination was conducted in February 1946 and that the data from the earlier report were merely copied. Thus, the rote transference of the "15" for normal hearing acuity to a different preprinted form would give a false impression of the veteran's actual hearing status. The ambiguity as to the source of the 15/20 reading destroys the value of the February report as evidence. A hearing deficit was also reported in statements from Mr. Umipig, but this information is contradicted by the January 1946 examination report and is insufficient to establish that any hearing deficit at that time was chronic. The Board finds that the negative evidence of record outweighs the positive evidence and that a preponderance of the evidence is against the claim for service connection. ORDER Service connection for bilateral defective hearing is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * DANIEL J. STEIN (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.