BVA9507359 DOCKET NO. 93-14 941 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a nose disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1975 to August 1992. He also had approximately three years of prior active military service. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to service connection for bilateral hearing loss. He claims that he currently has trouble hearing voices and conversations. In addition, he points out that a recent VA audiological examination, conducted by Dr. Myron Lockey in January 1993, resulted in a diagnosis of bilateral high frequency neurosensory hearing loss. The veteran also asserts that his bilateral hearing loss is related to his service-connected tinnitus. Furthermore, the veteran asserts that the RO committed error in denying his claim of entitlement to service connection for a nose disorder. The veteran admits that, prior to service, he broke his nose and that it healed in a manner which resulted in deformity of the nose and a deviated nasal septum. The veteran contends, however, that the surgery he underwent during service to correct these problems did not fully correct his nasal problems and that he currently needs to undergo another surgery to correct this condition fully. He specifies that, although he was told during service that he would need to undergo two operations (one to correct the shape of his nose and another to repair his deviated septum), he was only given one, a rhinoplasty. He maintains that, because he was never given the second surgery, he was left with one nostril still constricted and one abnormally open, which causes air to pass directly to the back of his throat, which in turn lacks adequate filtration. The veteran claims that the fact that work on his nose was started while he was in service and never completed shows in-service aggravation of this pre-service injury. 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 claim of entitlement to service connection for bilateral hearing loss. It is also the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for a nose disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained insofar as possible. 2. The veteran does not presently have a bilateral hearing loss disability within the meaning of VA laws and regulations. 3. The veteran unequivocally had nasal deformity and a deviated nasal septum prior to his active military service. 4. During service, the veteran underwent ameliorative rhinoplasty, which healed well. 5. The in-service complaints and treatment for nasal obstruction were not reflective of an increase in the severity of the basic underlying preexisting nasal pathology. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1994). 2. The presumption of soundness which arose when the veteran was examined and accepted for service has been rebutted by clear and unmistakable evidence of the pre-service existence of a nose disorder. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). 3. The veteran's preexisting nose disorder was not aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board of Veterans' Appeals (Board) finds that the veteran has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). I. Bilateral Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Furthermore, the regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Therefore, the first question which must be answered is whether the veteran has a current bilateral hearing loss disability. The term "hearing loss disability" is defined in the regulations. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385, as amended, 59 Fed.Reg. 60560 (1994). (The Board notes that the wording of this regulation was changed during the pendency of the veteran's appeal, but the substance of the regulation was not changed). At the authorized VA audiological evaluation in August 1994, pure tone thresholds in decibels were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 30 35 LEFT 15 20 20 30 35 In addition, speech audiometry revealed speech recognition ability which was 94 percent correct in the right ear and 98 percent correct in the left ear. As the results of this audiological evaluation demonstrate, all of the thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are less than 40 decibels. Furthermore, the thresholds for at least three of these frequencies (500, 1000, and 2000 Hertz) are 25 decibels or less, and the speech recognition scores using the Maryland CNC Test are 94 percent correct or better in both ears. Consequently, the results of the most recent audiological examination are insufficient to establish the presence of a bilateral hearing disorder within the meaning of VA regulatory criteria. Therefore, service connection cannot be granted for bilateral hearing loss. 38 C.F.R. § 3.385 (1994). We note that, on examination for retirement from service in 1992, audrometric examination was reported to show that the requirements of 38 C.F.R. § 3.385 were met. VA audiometric examinations in January 1993 and in August 1994, as reported above, however, did not show that the requirements of § 3.385 were met. The Board acknowledges the contention of the veteran's representative that this examination is insufficient for rating purposes. Significantly, however, the examination provided the pure tone thresholds at all of the necessary frequencies as well as the veteran's speech recognition capability. Furthermore, there is no indication that these audiometric results are in any way inaccurate. Consequently, the Board concludes that the August 1994 VA audiological evaluation adequately provides the pure tone thresholds and speech recognition capability to determine the issue of service connection for bilateral hearing loss pursuant to 38 C.F.R. § 3.385. In addition, the Board acknowledges the veteran's contention that he should be granted service connection for bilateral hearing loss based on the diagnosis he was given in January 1993 at an audiological examination by Dr. Myron Lockey, a VA physician. It is clear that the veteran does have a bilateral hearing loss. When the auditory threshold at any of the frequencies is greater than 20 decibels, some degree of hearing loss is present. Hensley v. Brown, 5 Vet.App. 155 (1993). But, unless the hearing loss meets the criteria of 38 C.F.R. § 3.385, the hearing loss is not a "disability" for which service connection can be granted. The veteran does not have a bilateral hearing loss disability as defined by VA laws and regulations. Consequently, he is not entitled to service connection for bilateral hearing loss. Because the veteran has not been shown to have a bilateral hearing loss "disability" under the law, the Board need not at the present time address the question of a relationship between hearing loss and to service or the question of a relationship between hearing loss and tinnitus. II. A Nose Disorder Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). In the present case, the enlistment examination failed to document any findings of a nasal disability. In fact, the veteran reported that he did not have at the time of the examination, nor had he ever had, problems with his nose. Therefore, the veteran must be presumed to not have had a nose disorder at the time that he was examined, accepted, and enrolled for service. See Crowe v. Brown, No. 93- 550, slip op. at 11 (U.S. Vet. App. Dec. 20, 1994) (the presumption of soundness attaches only where there has been an induction examination in which the later-complained-of disability was not detected). Significantly, however, according to the service medical records, when the veteran was treated for complaints of nasal problems in November 1973, he reported that he had trauma to his nose in childhood. When the veteran underwent a rhinoplasty at a military hospital in December 1973, he reported that he had nasal deformity since childhood trauma at the age of 7 and that he had difficulty breathing through the left side of his nose. At a February 1976 treatment session for complaints of a nose bleed, the veteran reported that as a child he had broken his nose. Subsequently, at a May 1992 treatment session, the veteran reported having a history of left nasal obstruction since a childhood nasal fracture. At November 1975 and September 1982 periodic in-service examinations and at the retirement examination in January 1992, the veteran reported having fractured his nose during childhood. Based on this evidence, the Board concludes that the presumption of soundness which arose at the time that the veteran was examined and accepted for service has been rebutted by clear and unmistakable evidence. Service connection for a nose disorder may still be granted if the disability is shown to have been aggravated during service. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (1994). In the present case, objective medical evidence clearly demonstrates that the veteran's nose disorder did not increase in severity during his active military service. Consequently, the Board does not have to address the question of whether or not an increase in severity of the preexisting nose disability was due to the natural progress of the disease. According to the service medical records, in November 1973 the veteran was treated for complaints of nasal problems. At that time, the military physician noted external nasal deformity and near complete obstruction on the left side of the nose due to a deflated nasal septum. The veteran was scheduled for a rhinoplasty, which he underwent in the following month. Physical examination at the time of hospitalization for this surgical procedure showed an external deformity of the nose with a slight hump and deviation of the nose to the left and drooping nasal tip. The veteran's post-operative course was uneventful, and the discharge diagnoses were external deformity of the nose and post-rhinoplasty. Approximately one week after the surgery, the splint was removed, the veteran's nostrils were cleaned, he was returned to duty, and he was instructed to return to the ear-nose-and-throat clinic in two weeks. When the veteran received follow-up treatment two weeks after his discharge from hospitalization, his nose was found to contain an irritated, crusty red area on the front part of the left side of the nose. He was treated with medication, was found to be doing well, and was instructed to return to the clinic in two weeks. In January 1974, the veteran received follow-up treatment at the clinic, was found to be doing well, and was instructed to return to the clinic in two weeks. In February 1974, the veteran was found to be doing well and was instructed that he was scheduled to get post-operative photographs taken in one week. A periodic in-service examination conducted in November 1975 indicated that the veteran had nasal deformity, nasal septal deviation (to the right), and 70 percent obstruction. The veteran reported that he had nose bleeds with a cold, that he had no present problems or complaints with regard to his nose. The next notation in the service medical records regarding treatment that the veteran received for his nose disability is dated in February 1976. At that time, the veteran sought treatment for a nose bleed. He reported having a history of intermittent right nose bleed and a history of nasal stuffiness. Physical examination showed a deviated septum to the left. The diagnosis was a nose bleed. He was referred to the ear-nose-and-throat clinic, where examination demonstrated that his septum deviated to the left. An assessment of epistaxis was made. A periodic in-service examination in September 1982 showed that the veteran had no obstruction from his fractured nose. According to the service medical records, the veteran did not receive further treatment for his nose disability until October 1982. At that time, the veteran sought treatment for complaints of a sore throat and running nose. Physical examination was not remarkable except for septal deviation to the left. The veteran was treated with nasal spray for two days. One year later, in October 1983, the veteran was treated for an upper respiratory infection. Physical examination at that time, showed that his nasal mucus was within normal limits. The veteran reported that he had some drainage at night. An assessment of improving acute viral sinusitis was made. The next notation in the service medical records is dated in February 1987, at which time the veteran sought treatment for complaints of a cough, sore throat, and sinus drainage. A physical examination demonstrated rhinorrhea and a red pharynx. An assessment of an upper respiratory infection was made. A throat culture was done, and the veteran was treated with Sudafed, Robitussin, and Tylenol. The service medical records do not contain any further evidence of complaints of, treatment for, or findings of a nasal disability until September 1991. At that time, the veteran sought treatment for stomach cramps and expressed a "vague" concern regarding nasal congestion. A November 1991 record regarding a colonoscopy and a diverticulosis indicates that the veteran had a medical history of a septoplasty. Subsequently, in April 1992, the veteran sought treatment for complaints of ringing in his ears and slight congestion lasting one week. At the time of this treatment session, symptoms including a deviated septum with chronic left-sided nasal obstruction were noted. Physical examination showed yellow discharge from the left nostril and septal deviation. The diagnoses of sinusitis and septal deviation were made. In May 1992, the veteran reported having a rhinoplasty in the 1970's and some periodic sinusitis. Physical examination showed a deviated nasal septum to the left side. The veteran denied having an implant at the time of the rhinoplasty. The assessment of nasal obstruction was made. According to the medical plan, the veteran was on a waiting list for a septoplasty. At the January 1992 retirement examination, the veteran's nose was found to be normal. Moreover, the examiner noted that there was no change from the partial correction for deviated septum in 1973. The evidence obtained from the service medical records does not demonstrate an in-service increase in the veteran's preexisting nose disability. Prior to the rhinoplasty in December 1973, the veteran had nearly complete obstruction on the left side of his nose due to a deviated septum. Although two weeks following discharge from hospitalization after the rhinoplasty the veteran was found to have an irritated and crusty red area on the front left side of his nose, this symptom apparently resolved and the veteran was found at later, follow-up treatment sessions to be doing well. Thereafter, the veteran sought only sporadic treatment for nose problems. Once he was treated for a nose bleed, and once he was treated with nasal spray for complaints of a running nose. In September 1991, when he was treated for complaints of a sore throat, he expressed only a "vague" concern for nasal congestion. The diagnoses of an upper respiratory infection and sinusitis were made several times during service. However, his nasal mucus was found to be within normal limits. An April 1992 report did indicate chronic left-sided nasal obstruction, but the record did not specify the extent of obstruction. Moreover, the periodic in-service physical examinations that the veteran underwent during service actually appear to show improvement of his nose disability. A periodic examination conducted two years after the surgery showed that the veteran was found to have only 70 percent obstruction. A periodic examination conducted in September 1982 indicated that the veteran had no obstruction. In addition, the retirement examination conducted in January 1992 demonstrated that the veteran's nose was normal and that there was no change from the partial correction for a deviated septum in 1973. The Board acknowledges that the veteran experienced some symptoms of his nose disability after the rhinoplasty during service. In fact, a May 1992 notation in the service medical records indicates that the veteran's name had been placed on a waiting list for a septoplasty. However, the Court has held that temporary or intermittent [in-service] flare-ups of a preservice condition, without evidence of worsening of the underlying condition (as contrasted to symptoms), are not sufficient to be considered in-service aggravation. Crowe, No. 93-550, slip op. at 15, citing Hunt v. Derwinski, 1 Vet.App. 292, 296-297 (1991) (finding that, although there was temporary worsening of symptoms, the condition itself, which lent itself to flare-ups, did not worsen and that the disability remained unaffected by the flare-ups). Based on a complete and thorough review of the service medical records, the Board concludes that the in-service flare-ups of the preexisting nose disability were only temporary worsening of the nasal symptoms. The totality of evidence obtained from the service medical records does not demonstrate that the pathology of the veteran's preexisting nose disability increased in severity during service. The Board is aware of the veteran's contention that the rhinoplasty done during service did not fully correct his nasal problems. The Board also acknowledges the veteran's contention that he was never given the second surgery (septoplasty) which had been recommended and that the incompleteness of the corrective measures regarding his preexisting nose disability (work on his nose was started but not finished during service) aggravated his preexisting nose disability. Significantly, however, the applicable regulation does not require that ameliorative surgery correct fully a preexisting disability. Rather, the relevant regulation simply provides that the usual effects of medical and surgical treatment in service, having the effect of ameliorating a disease or other condition incurred before enlistment, including poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (1994). In the present case, the service medical records fail to show any evidence that the veteran sustained any unusual effects as a result of the rhinoplasty in December 1973. Furthermore, as the Board has previously noted, the service medical records do not demonstrate an increase in severity of the pre-existing pathology, and therefore do not show in-service aggravation of the veteran's preexisting nose disability during service. Consequently, the veteran is not entitled to service connection for a nose disability. ORDER Service connection for bilateral hearing loss is denied. Service connection for a nose disorder is denied. WILLIAM J. REDDY 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.