BVA9500395 DOCKET NO. 93-11 727 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic mastoiditis. 2. Entitlement to service connection for ear fungus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active duty from October 1951 to April 1955. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claims of entitlement to service connection for chronic mastoiditis and for acute ear fungus. He claims that he incurred these disabilities while he was serving on active military duty. Specifically, he asserts that, when he was treated for a fungus infection in his ear while he was on active duty, a wire with a cotton ball at the end was run down his left ear and perforated his left ear drum. He maintains that he was treated for both mastoiditis and fungus of the ear during service and has continued to receive such treatment since his separation from active duty. In addition, the veteran claims that his separation examination, which failed to demonstrate any findings of either of these disabilities, was incomplete. Furthermore, he asserts that VA has not obtained and considered all records of treatment he received for these disabilities after his separation from service. He also requests to be accorded a VA examination regarding these disabilities. 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 preponderance of the evidence is against the claims of entitlement to service connection for chronic mastoiditis and ear fungus. FINDINGS OF FACT 1. Any fungus infection of the ear and mastoiditis that the veteran may have had during service were acute and transitory in nature and resolved without any identifiable residuals prior to his discharge from service. 2. A chronic ear disorder did not emerge until many years after service. CONCLUSION OF LAW Chronic ear fungus and chronic mastoiditis were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented claims which are plausible. The veteran has asserted that he submitted to the RO a list of physicians from whom he had received treatment for mastoiditis and fungus of the ear after his discharge from service and that he had submitted VA Forms 21-4142, Authorization for Release of Information, for the treating physicians so that the RO could obtain all of his post-service medical records. The veteran maintained that the RO failed to obtain all of these records and, therefore, rendered its decision without considering all possible evidence. However, the veteran himself admitted in the March 1993 statement that several of the physicians who reportedly treated him for these disabilities after his separation from service are deceased. A review of the record indicates that the RO attempted to obtain the records of treatment that the veteran received from various physicians and medical facilities listed on his application. It does appears that the RO did attempt to contact many, but not all, of the physicians listed on the authorizations. For example, the RO does not appear to have contacted Dr. Dennis Ward who reportedly saw the veteran from 1962 to 1968. Even if these records were obtained, they would still only show ear treatment that the veteran received approximately seven years after his separation from service. Such records would not demonstrate the continuity of symptomatology which is required for the grant of service connection for a condition noted during service but not shown to be chronic. See 38 C.F.R. § 3.303(b) (1993). The Board concludes, therefore, that the RO has made a reasonable attempt to assist the veteran in developing his claim. "The duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet.App. 1990 (1991). The Board also notes that in the March 1993 statement, the substantive appeal, and statements dated in May and July 1992, the veteran noted that he has not been accorded a VA examination with regard to his present appeal. He requested that he be given one. The issue in this appeal does not turn on whether he has an ear disorder at the present time; that matter is established. The question is whether the present ear disorder can be related to service. Any VA medical examination at this juncture is irrelevant to this question. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1993). According to regulation, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or when the fact of chronicity in service is not adequately supported. The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and adequate observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (1993). According to the service medical records, the veteran was treated for fungus of the ear in February 1955. His ear was cleaned, and he was returned to duty. The following day, he was again treated for fungus of the ear. His ear was cleaned, and he returned to duty. Three days later, the veteran was again treated for fungus of his ear. In support of the veteran's contentions, he submitted a statement by Mr. [redacted], who served with him in late 1954 and early 1955. According to Mr. [redacted]'s February 1993 statement, the veteran developed a severe ear problem in the Philippines and went to sick bay aboard ship. This statement adds little to what the service medical records already reveal and plainly does not address continuity of symptomatology after service. The veteran has asserted that the separation examination, which specifically found that the veteran had normal ears, was inadequate and incomplete. In this connection, the examination report was completed, dated, and signed by a physician. It did contain findings of abnormalities unrelated to the issue on appeal. The veteran has contended that, since his separation from service, he has received treatment for both of the disabilities on appeal. However, a review of the claims folder indicates that the first evidence of any type of post-service findings of ear problems occurred in February 1991 when Dr. Yves Morissette, one of the veteran's physicians, diagnosed the veteran to have left chronic otomastoiditis. The veteran subsequently underwent a left mastoidectomy in March 1991. In a February 1993 statement, John B. Simmons, M.D., stated that the veteran had a history of chronic left ear drainage. In his letter, Dr. Simmons stated that the veteran's left ear drainage "apparently" started in the early to mid-1950s and that he had developed some fungus infection while in service. According to this letter, Dr. Simmons stated that in service the veteran's left ear was being cleaned and "apparently" a cotton tip applicator was placed too deeply in the left ear by someone in the service. Dr. Simmons also indicated that the veteran has been treated for chronic ear infections since service and that, despite this treatment, the perforation in the veteran's ear recurred, and the veteran again began having drainage from his ear. Dr. Simmons' statement was obviously based on information provided him by the veteran. Moreover, his letter and the veteran's contentions are outweighed by absence of any clinical records of treatment for ear problems for approximately 36 years after service. For that matter, there is virtually no evidence of a non-medical nature to show the presence of persistent ear abnormalities between 1955 and 1991. It is also important to note that Dr. Morissette' s records do not go back before 1991 and contain no reference to related symptomatology occurring since service. Consequently, without continuity of symptomatology, the present ear disorders cannot reasonably be related to the fungus episode of February 1955. The Board is not required to give the veteran's assertions regarding service incurrence or continuity of treatment thereafter dispositive weight, especially when corroborating evidence is minimal or totally lacking. See Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). ORDER Service connection for chronic mastoiditis and ear fungus is denied. JOHN E. ORMOND 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.