BVA9502080 DOCKET NO. 92-54 529 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Military Order of the Purple Heart INTRODUCTION This case comes before the Board on appeal from a January 1991 rating action of the Newark, New Jersey, Regional Office (hereinafter RO). The veteran served on active duty from May 1965 to April 1968. The veteran's notice of disagreement received in May 1991, was somewhat unclear as to what he was disagreeing with. Consequently, the RO prepared a statement of the case addressing the issues of entitlement to increased ratings for post-traumatic stress disorder and for shell fragment wound scars of the left ear and scalp in addition to the issue stated on the preceding page. In his substantive appeal the veteran made reference only to the issue of entitlement to service connection for defective hearing. Accordingly, the RO interpreted the substantive appeal as clarifying that the veteran was limiting his appeal to the issue of entitlement to service connection for defective hearing. We agree with that interpretation and, therefore, that is the only issue which will be addressed herein. The case was remanded by the Board in October 1992 for additional evidentiary development. That development has been completed. Following the Remand order the RO reclassified the location of the service-connected shell fragment wound scars as being behind the right ear and on the scalp. The case is now before the Board for a determination of the stated issue. CONTENTIONS OF APPELLANT ON APPEAL It is contended that his defective hearing resulted from wounds he sustained in service and that the hearing loss in the right ear actually existed when he was in service in Vietnam. 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(s). 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 for service connection for bilateral defective hearing. FINDINGS OF FACT 1. All relevant evidence necessary for a proper disposition of the veteran's appeal has been obtained. 2. Bilateral defective hearing is not shown to have been present during service or within the first post service year, and is not related to any incident in service. 3. The veteran's current bilateral defective hearing was not caused by his service-connected residuals of shell fragment wounds (scars) of the scalp and behind the right ear. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by wartime service and sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993) 2. The veterans current bilateral defective hearing is not proximately due to or the result of his service-connected residuals of shell fragment wounds (scars) of the scalp and behind the right ear. 38 U.S.C.A. 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veterans claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). The Board is also satisfied that all relevant evidence has been properly developed. There is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). We note that when the veteran was examined for the purpose of separation from service, in April 1968, he did not undergo audiometric testing nor was there any notation as to his hearing acuity. In the absence of such medical data, we must rely instead on other evidence of record. We further note that when the veteran filed his initial claim for VA compensation benefits, in April 1968 (at the time of his separation from service), he stated that he had a damaged right ear with partial impairment of hearing. He was scheduled for VA examinations at the time, but failed to report. Ultimately, his claim was considered abandoned by the RO. More recently, the veteran refiled claims for service connection. On VA examination in 1990, he was found to have shell fragment wound scars behind the right ear and on the scalp. A bilateral hearing loss, slightly worse on the left was found on audiometric testing. Pursuant to the remand order in October 1992 the veteran received an audiological examination and audiometric testing in June 1993. The audiometric testing again revealed the presence of a bilateral sensorineural hearing loss. The examinations of the ears revealed normal auricles, normal external ear canals and normal tympanic membranes. The middle and inner ear(s) were normal, there was no tenderness of the mastoids and there was no clinical evidence of active disease in the ears. X-rays of the mastoids revealed that they were normal on both sides. No foreign body could be seen with X-ray of the soft tissue of the neck. In November 1993 the file was returned to the examining physician for further review. He advised, in response to a question, that there was no relationship between the veteran's hearing loss and his shell fragment wounds. The current examination of the ears reveals that the shell fragment wounds that the veteran sustained in service did not damage any portion of the internal or external structure of either ear. We base this on the absence of any such damage at the current time. The failure to report for VA examinations scheduled in May 1968 and November 1968 resulted in an inability of the VA to obtain clinical documentation of bilateral defective hearing at that time. The veteran has not alluded to the existence of any other clinical evidence during that period (the early post service years) which involve treatment for defective hearing in either ear. As noted above, the service discharge examination did not include audiometric testing. The Board considered the claim well grounded because of the close proximity of at least one shell fragment to the right ear and because the veteran had complained of defective hearing very shortly after discharge from service. In an effort to accord him every consideration, we remanded for an ear examination. A bilateral sensorineural hearing loss was clearly shown in 1993 and on earlier examination in 1990. The examining physician stated in 1993 that there was no relationship between the current hearing loss and the shell fragment wounds. This is consistent with the fact that there is no current evidence of injury to the structure of either ear and this includes the absence of metallic foreign bodies. A proper basis is not afforded for the allowance of service connection for bilateral defective hearing on a direct, presumptive or secondary basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993). The evidence is not in equipoise here. The preponderance of the evidence is against the grant of the benefit sought on appeal. 38 U.S.C.A. 5107(b) (West 1991). ORDER Entitlement to service connection for bilateral defective hearing is denied. BRUCE E. HYMAN 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.