BVA9505588 DOCKET NO. 93-11 413 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for inner ear disability with unsteadiness and lack of balance. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held in May 1993 before the Board member rendering the final determination in this case. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for inner ear disability with unsteadiness and lack of balance, as it originated while he was in service; or, in the alternate, because it is the result of his service-connected right ear disability and tinnitus. The veteran has requested that records pertaining to evaluation of his ears at the U.S. Naval Hospital in Philadelphia, Pennsylvania be obtained. 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 submitted evidence of a well grounded claim for service connection for inner ear disability with unsteadiness and lack of balance. FINDING OF FACT The claim for service connection for inner ear disability with unsteadiness and lack of balance is not plausible. CONCLUSION OF LAW The claim for service connection for inner ear disability with unsteadiness and lack of balance is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered with respect to this appeal is whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a claim that is plausible, that is, one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the veteran further in the development of facts pertinent to the claim. Id. After a careful review of the record, the Board finds that the claim for service connection for inner ear disability with unsteadiness and lack of balance is not well grounded, and there is no further duty to assist the veteran in the development of his claim. After reviewing the veteran's claims file, the Board notes that his service medical records show no diagnosis, complaint, finding or treatment pertaining to unsteadiness, lack of balance or inner ear disability. A July 1946 letter from the veteran's private treating physician, F.W. Reese, M.D., shows that the veteran was suffering from impaired hearing of his right ear at that time. The physician noted that the eardrum was retracted and light reflex was not visualized. A September 1947 report of VA examination for compensation purposes shows that the veteran had deafness in his right ear, as well as symptomatic bilateral retracted ear drums. There was no complaint of unsteadiness or loss of balance or any finding of an inner ear disability at that time. A November 1948 VA ear, nose and throat examination report shows that the veteran complained of hearing loss and ringing in his right ear. The examiner diagnosed right ear perceptive type defective hearing. Again, there was no indicated complaint of unsteadiness or lack of balance or any finding of an inner ear disability. A May 1961 VA examination report again shows no complaint or finding indicating that the veteran had unsteadiness, loss of balance or any inner ear disability. A June 1979 private hospital discharge report shows that the veteran was admitted to the hospital with "staggering loss of balance" as well as a headache, unstable hypertension and severe right upper quadrant pain. The veteran underwent a cholecystectomy and the discharge diagnosis was cholelithiasis. At his July 1989 VA examination, the veteran complained of very poor hearing in his right ear, perforated left ear, constant tinnitus and unsteadiness on his feet. The veteran further complained of what he described as periods of vertigo that the examiner felt were possibly not rotary in character, but during which the veteran was extremely uncertain and had to hold onto something to keep from falling. The examiner noted that the veteran had past pointing on his left side but not on his right side and may have missed the target coming down with his finger to either side. Romberg testing showed extreme unsteadiness and a tendency to fall backward and to one side or the other. The veteran underwent brain stem auditory evoked response (BAER) testing which showed no evidence of central pathology and the examiner recommended the veteran be scheduled for a neurology examination. The August 1989 VA neurology examination report shows the veteran was hospitalized two days in Germany for hearing loss. The examiner noted that the veteran had diabetes mellitus by history. The examiner further noted that the veteran's vibratory sense was normal except that he had no hearing in his right ear and that his cerebellar testing was normal except that he was somewhat clumsy doing the heel-to-toe walk. The neurologist diagnosed right ear hearing loss. At his May 1993 travel board hearing, the veteran testified that he first realized that he was becoming unsteady or dizzy when he was serving somewhere in Germany and that he was hospitalized overnight as a result of his unsteadiness. He further testified that during service he only became dizzy or unsteady one to two times a month for twelve to fifteen hours duration. The veteran stated that his dizziness began in service and got worse later. He testified that he underwent testing at VA in 1946, not strictly for his dizziness but also for his hearing loss and to evaluate his whole ear. The veteran indicated that he went to his family doctor, Dr. Reese, regarding his problems and was referred to an ear specialist. The veteran testified that the ear specialist considered operating on his eardrums because they were concave, but decided against it because the veteran's ears were not in good shape. He testified that he had balance problems playing football at Temple University after service and was let go from a job in 1950 because he kept swaying over the machine and his employer was afraid he'd fall in. The veteran stated that his first prescription for unsteadiness was given in 1956 or 1957 and that nine to ten years after service he had to take time off work because of dizziness. The veteran further stated that Dr. Spuza treated him from 1978 until the doctor's death three to four years prior to the hearing date. The veteran opined that the doctor had kept very poor records regarding treatment. The veteran related that he had been hospitalized in 1979 because of his unsteadiness at work. He stated that he was diagnosed in 1981 with diabetes and that one private physician said that his unsteadiness was a result of his diabetes. He also testified that a neurologist told him he should have told police he was diabetic when his unsteadiness caused him to fail a sobriety test. The veteran testified that he was not receiving treatment for any inner ear disability at the time of the examination. While the veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Service connection is not in order in the absence of any residuals or evidence of a disability currently. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). There is no objective evidence of record that the veteran has a current inner ear disability. While unsteadiness was found in 1979 and 1989, the veteran has provided no medical opinion linking these disabilities to any inner ear disability or any service-connected ear disability. Therefore, the Board finds that the veteran's claim for service connection for inner ear disability with unsteadiness and lack of balance is not well grounded. The Board has considered the veteran's contention that records pertaining to evaluation of the veteran's ears shortly after service at the U.S.Naval Hospital in Philadelphia, Pennsylvania should be obtained. The Board notes that the record reflects that the RO has attempted to obtain those records, but those records are unavailable. In any event, as discussed above, the record does contain medical evidence pertaining to evaluations of the veteran's ears proximate to service and in recent years and they do not show that he has been found to have disability of the inner ear. Although the Board has considered and dismissed this claim on a ground different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the Board's decision. This is because, in assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. See Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the veteran's claim for service connection for inner ear disability with unsteadiness and lack of balance is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). ORDER Evidence of a well grounded claim not having been received, the claim for service connection inner ear disability with unsteadiness and lack of balance is dismissed. SHANE A. DURKIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.