BVA9506432 DOCKET NO. 93-09 552 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Fred Henderson Moore, Attorney at Law ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from November 1965 to November 1968. This appeal arises from a March 1991 decision by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a bilateral hearing loss. The Board of Veterans' Appeals (Board) notes that the veteran's Appeal to the Board of Veterans' Appeals received in June 1991 contained a request for a hearing before a travel section of the Board. A hearing was subsequently scheduled for January 21, 1992 and the veteran was notified thereof. In a letter dated January 22, 1992, the veteran's representative requested a postponement because of previous commitments. The hearing was rescheduled for the early afternoon of April 19, 1992. In a letter dated on March 30, 1993, the veteran's representative requested that the time of the hearing be moved to 4:00 P.M. because he had prior commitments. The veteran's representative was notified by letter dated April 9, 1993 that the docket for that day was too full to accommodate a change. The letter requested that the attorney advise the RO whether they would attend at the scheduled time or wanted a postponement until the next travel board visit. There was no reply to the April 9, 1993 letter. It is the opinion of the Board that the veteran has been afforded due process under 38 C.F.R. § 20.704 (1994). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran incurred a hearing loss while in active service. It is asserted that the veteran was treated at Ft. Rucker, Alabama in 1968 and that adequate records would show that he was treated for an ear illness or injury. It is further contended that the veteran's DD Form 214 indicates that the veteran had an ear problem while in active 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. No hearing loss is shown to have occurred during service. 3. No disabling hearing loss is currently shown. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.304, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, the Board finds that his claim is not well grounded. The veteran's service medical records include the report of his examination for entrance dated in November 1965 which is negative for any history, complaints or findings of a hearing disability and contains audiometry scores of: HERTZ 500 1000 2000 3000 4000 RIGHT 25 5 5 5 10 LEFT 25 10 10 5 20 "Defective hearing NCD" (not considered disqualifying ) is noted in the examination portion of the report. A hearing profile of "H-2" (meets procurement standards but not special training standards) was assigned and the veteran was qualified for enlistment. A treatment note dated in February 1967 indicates that the veteran sought treatment for pain in his right ear for one day. On examination, the canal was inflamed. The impression was right external otitis. Medications were prescribed. The veteran was to return in three days but the service medical records are negative for any follow-up complaints or treatment. A treatment note dated in April 1968 from the Ft. Rucker, Alabama Army hospital notes a complaint of a "numb like" right ear without pain or discharge. The note indicates that the disorder began the day before the veteran sought treatment. The examination failed to reveal anything except erythemia (redness). Treatment consisted of a trial of Actifed and Polycillin. A treatment note dated in June 1968, also from Fort Rucker, indicates left otitis media. Treatment consisted of two medications and a prohibition against flying for one week. There are no indications of follow- up complaints or treatment. The history portion of the report of the examination for separation dated in October 1968 contains a check mark in the block regarding eye or ear trouble and a notation of "Eye or ear trouble?" is found in the physician's summary portion of the report. However, there is no elaboration regarding an ear disability and the ears and drums were found normal on clinical evaluation. The audiometer scores are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 0 LEFT 5 0 0 0 The report of a VA special audio examination dated in December 1990 indicates pure tone threshold scores of: HERTZ 500 1000 2000 3000 4000 RIGHT XXXX 10 5 15 15 LEFT XXXX 10 10 10 15 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The VA Form 10-2464 contains a notation that the hearing was normal bilaterally. The examination report does not note that the veteran complained of a hearing loss; only of two to three episodes per years of moderately severe tinnitus in his right ear, related to complaints of ear infections and sinusitis. The veteran related no prior history of severe ear infections requiring medical intervention nor ear surgery. On examination, both tympanic membranes were mobile and both ear canals were clear. Tuning forks did not localize to either side and air conduction was greater than bone conduction bilaterally. Audio pure tone thresholds averaged from 0 to 20 decibels thresholds throughout. All frequencies were symmetrical on both sides. There was no air bone gap. The pure tone average over three frequencies was 10 decibels bilaterally. The speech reception test (SRT) was also 10 decibels bilaterally. Tympanograms revealed a slight negative pressure. The discrimination was 94 percent bilaterally. Reflexes were slightly elevated and only absent at 4,000 cycles per second (Hertz). The impression was very slight negative pressure in the middle ear system present indicating very mild eustachian tube dysfunction. The patient's episodes of tinnitus probably relate to periods when his eustachian tube dysfunction was aggravated for whatever reason. There was no indication of serious pathology. The audiogram was essentially within normal limits. The impression notes that the veteran's complaint of alternating unilateral nasal obstruction actually represented a normal nasal cycle. No further treatment was deemed necessary. By rating decision dated in March 1991, service connection for bilateral hearing loss, ear infections and mild eustachian tube dysfunction was denied on the basis of lack of evidence in the service medical records as well as the results of the December 1990 examination. The record does not demonstrate that a measurable hearing loss was incurred in active service. The veteran's service medical records indicate that he was treated for ear problems on occasion, but that the problems were acute and resolved before his separation form active service. None of the treatment records indicate that the veteran had a disability that required follow-up treatments after he was initially treated. Even though the report of the examination for separation contains a cryptic note regarding ear trouble, no elaboration was made and the hearing test was within normal limits. The veteran has submitted no evidence to indicate that he had a compensable hearing loss within one year of active service or that he was ever treated for a hearing loss since his separation from active duty. The report of the rating examination dated in December 1990 indicates that the veteran's hearing is within normal limits. Contrary to the veteran's contentions, the service medical records do include treatment records from Fort Rucker, Alabama, however, these indicate only acute and transitory disorders. Also, there is nothing on the veteran's DD Form 214 to indicate the presence of a disability. The reenlistment code is "RE-1" (Eligible for reenlistment) and the reason for separation is expiration of term of service, not disability. A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). For the above reasons, the Board finds that the appellant's claim is not well-grounded and therefore should be dismissed. 28 U.S.C.A. § 5107. ORDER The appeal is dismissed. ROBERT D. PHILIPP 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.