BVA9505462 DOCKET NO. 92-24 137 ) 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 bilateral ear fungus. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran had active military service from October 1942 to November 1945. The veteran's original claim for service connection for ear fungus was denied by rating actions during the late 1940's. However, it was determined that a December 1991 statement from a private physician represented new and material evidence warranting reopening of the veteran's claim. The case was remanded by the Board in August 1993 for additional development of the evidence and has now been returned to the Board for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting service connection for bilateral ear fungus and defective hearing. He argues that these disabilities were incurred during his period of service. He also alleges receiving treatment for ear fungus from the time of service discharge to the present. 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, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for bilateral ear fungus. It is the further decision of the Board that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for hearing loss is well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. A chronic bilateral ear fungus is not shown to have been present in service; any current infection of the ears is not shown to be related to service or to the ear complaints treated in service. 3. A hearing loss is not shown to have been present in service, and it is not shown that the veteran now has such a disorder. CONCLUSIONS OF LAW 1. A bilateral ear fungus was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). 2. The claim for service connection for a hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Bilateral Ear Fungus The veteran's claim for service connection for bilateral ear fungus is "well grounded." That is, it is not inherently implausible. We also find that the facts relevant to these issues have been developed to the extent possible under the statutory obligation of the VA to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Board attempted to fulfill its duty to assist by remanding the case in August 1993 for additional development. The veteran failed to cooperate and did not furnish the information requested. There is nothing more the VA can do in light of the veteran's failure to cooperate. The duty to assist in developing facts pertinent to a claim is not a one-way street. Wood v. Derwinski, 1 Vet.App. 190 (1991), reconsideration denied, 1 Vet.App. 406 (1991). Thus, there ensues no further duty to assist the veteran in the development of this claim, and the claim must be decided on the evidence of record. Service medical records reveal a history of treatment for ear fungus in 1943, although no clinical records related to the actual treatment are of record. Service medical records also show no treatment for such condition during the veteran's subsequent active service. On service separation examination in 1945, such condition or any residual thereof was not noted. The veteran reopened his claim for service connection in November 1990. In a statement dated in December 1991, a private physician reported that the veteran had been afflicted with otomycosis of the right ear since his military exposure in the 1940's. He reported the veteran had multiple therapies, but none had improved his condition. The doctor felt that the veteran's ear condition was chronic. At a hearing on appeal in February 1992, the veteran testified that his ear fungus had continued from service to the present. In the August 1993 remand, the Board noted that the VA had a duty to assist the veteran in the development of his claim and that this duty extended to obtaining pertinent records. The Board remanded the case to have the veteran furnish the names and addresses of the physicians who treated him for ear fungus from service separation to the present and to obtain the records of the private physician who authored the December 1991 statement. The request was made by the RO in correspondence in August 1993. The veteran failed to respond to the request for additional information. In January 1995, the claims folder was returned to the Board with a notation that the veteran had failed to submit the requested evidence. Service connection for a disability may be established by demonstrating that it was incurred in or aggravated during military service. 38 U.S.C.A. § 1110 (West 1991). To establish service connection, it must be shown that the claimed disability exists and has the requisite "nexus" to service. In the present case, service medical records show an incident of treatment for fungus of the ears during service, but no evidence of ear fungus subsequently in service or at the time of a separation examination in 1945. Thus, it would appear that the notation of a history of ear fungus in 1943 concerned an acute and transitory disorder, which resolved without residual disability as reflected by the negative findings on the separation examination. In this regard, we would note that, in an attempt to establish that the veteran currently has an ear fungus of service origin, the Board remanded the case to afford the veteran the opportunity to furnish additional information which would establish a continuity of symptomatology between the reported treatment for ear fungus in service and the otomycosis reported by the veteran's private physician in his 1991 statement. However, the veteran failed to respond to the RO's letter requesting additional information. In the absence of any further evidence, there is no sound evidentiary basis to relate any otomycosis to the veteran's active service which ended in 1945. While we have considered the veteran's testimony with respect to continuity, he does not have the medical expertise to relate any current ear fungus to his period of service which ended long ago. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Since a nexus between the veteran's current otomycosis and his active service or any ear disorder treated therein is not demonstrated, service connection for bilateral ear fungus is not warranted. The preponderance of the evidence is against the veteran's claim. Thus, there is no reasonable doubt to be resolved in his favor. II. Service connection for Hearing Loss With respect to the claim for service connection for hearing loss, we note that service medical records contain no indication of the presence of a hearing loss. On separation examination in 1945, the veteran's hearing, based on whispered voice testing, was normal, 15/15. There is also no indication of the presence of a hearing loss subsequent to service until the veteran's claim for service connection in 1990, about 45 years after service discharge. The veteran has submitted no medical evidence to establish he now has a hearing loss; and his failure to cooperate in providing the additional information requested in the Board's 1993 remand precluded an audiometric examination, which was also to have been scheduled as part of the remand development. The veteran's hearing testimony as to his alleged hearing loss is insufficient to medically establish the presence of such hearing loss or the requisite relationship of any hearing loss present to service. Espiritu. A well-grounded claim for service connection requires, at the least, a showing that the veteran now has the claimed disorder. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The veteran's claim for service connection for a hearing loss is a claim for a disability that has not been shown present during service or subsequent thereto. Since there is no demonstrated disability for which service connection could be granted, the claim for service connection for hearing loss is not well grounded. ORDER Service connection for bilateral ear fungus is denied. The claim for service connection for hearing loss is dismissed. GEORGE R. SENYK 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.