BVA9504671 DOCKET NO. 90-04 726 DATE JAN 31 1995 RECONSIDERATION 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 exophoria, as a residual of yellow fever. 2. Entitlement to service connection for chronic defective hearing. 3. Entitlement to service connection for residuals of a rt inguinal hernia repair. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from July 1945 to August 1960. A December 1990 Board of Veterans' Appeals (Board) decision denied service connection for exophoria, as a residual of yellow fever; defective hearing; and residuals of a right inguinal hernia repair. In January 1991, the veteran submitted a motion for reconsideration of that decision. In June 1991, reconsideration of the Board's December 1990 decision was ordered in accordance with the provisions of 38 U.S.C.A. 7163(b) (West 1991); 38 C.F.R. 19.11, 19.14(b) (1993). This reconsideration decision replaces the Board's December 1990 decision. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant in a January 1995 letter of the additional evidence developed, and provided an opportunity to respond. In a January 1995 response, the representative indicated that there was no further evidence, argument or comment to present. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for chronic defective hearing as it resulted from exposure to jet engine noise in service. He further maintains that service connection is warranted for exophoria as a residual of yellow fever, which he indicates he was treated for in service. He further contends that service connection for residuals of a right inguinal hernia repair is warranted as he underwent right inguinal hernia repair in service. 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 defective hearing and exophoria, as a residual of yellow fever. The evidence supports the claim of service connection for residuals of a right inguinal hernia repair. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO) to the extent possible. 2. Chronic defective hearing was not shown in service; defective hearing, first demonstrated many years after service, is unrelated to service. 3. Exophoria was not shown in service; exophoria, first demonstrated many years after service, is unrelated to service. 4. A right inguinal hernia was repaired in service; residuals of a right inguinal hernia are related to service. CONCLUSIONS OF LAW 1. Chronic defective hearing was not incurred in or aggravated by service nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. 3.303(d), 3.307, 3.309 (1993). 2. Residuals of a right inguinal hernia repair were incurred in service. 38 U.S.C.A. 1110, 1131, 5107 (West 1991); 38 C.F.R. 3.303(d) (1993). 3. Exophoria, as a residual of yellow fever, was not incurred in or aggravated by service. 38 U.S.C.A. 1110, 1131, 5107 (West 1991); 38 C.F.R. 3.303(d) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to 38 U.S.C.A. 5107(a) (West 1991), "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well- grounded." A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Such a claim need not be conclusive, but it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992). Due to the missing service medical records in this case, credit is given to the veteran's contentions concerning occurrences during service and the Board will proceed on the basis that the claims are well-grounded. The Department of Veterans Affairs (VA), therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. 5107 (West 1991). In this regard, we note that the matter was twice remanded by the Board in order to obtain additional information. The first remand occurred in September 1991. At that time, the Board requested that the RO ascertain the dates of each of the veteran's periods of service. The Board also requested the RO to contact the VA facility in Philadelphia for the purpose of obtaining an insurance folder alleged to have existed at that facility. The Board further requested that the RO review the July 1, and July 9, 1991, statements of the veteran's accredited representative. Following their review, the RO was asked to forward a request to the National Personnel Records Center (NPRC) to search for any additional records. In addition to the usual search under the veteran's service numbers, the RO was to request that the NPRC search the records of the facilities listed by the veteran's representative. A September 1991 report of contact notice indicated that the RO had requested transmission of insurance file # 19167273 and had been informed that it had been retired in 1971. The VA facility in Philadelphia indicated that it would attempt to obtain the file and forward it on to the RO. In May 1992, the RO requested that the NPRC forward any additional service medical records. A response was received from NPRC in June 1992 indicating that there were no medical records on file and that those records may have been destroyed in the July 1973 fire at the NPRC. In August 1992, the RO requested that the Social Security Administration (SSA) forward copies of all treatment records of the veteran made in conjunction with any claim. A response was received from SSA in October 1992 indicating that the veteran had never applied for disability benefits and that there were no medical records contained in his file. A November 1992 report of contact noted that the Philadelphia VA facility reported having sent the insurance claims folder to the RO in September 1992. However, the RO indicated that a thorough search of the file bank and office revealed no record of the insurance file. An additional request for information form was sent to the NPRC in September 1992. A December 1992 response indicated that the veteran had had additional military service from February 1958 to August 1960. The NPRC further indicated that these records had been destroyed by fire and could not be reconstructed. The Board again remanded this matter for further development in August 1993. As part of its remand, the Board indicated that the RO should request from the veteran the names and addresses of all of the facilities and physicians from whom he had received post- service treatment for the disabilities on appeal. The RO was also requested to conduct an additional search for the veteran's insurance folder, which was originally on file at the Philadelphia, Pennsylvania, RO and was reportedly forwarded to the St. Petersburg, Florida, RO. The Board further requested that the RO ask the veteran to complete NA Forms 13055 and 13075, which accompanied the National Personnel Records Center's June and December 1992 responses to the RO regarding the veteran's service. The RO was then requested to utilize this information and the remaining evidence of record, including information supplied by the veteran on NA Forms 13055 and 13075 in March 1989, and by his representative in a July 1991 statement referable to locations and dates of relevant treatment in service, and seek any available data associated with the veteran's full period of active service. The procedure outlined in VA Adjudication Procedure Manual, M21-1, Part III, Chapter 4, was to be followed. Any records obtained were to be associated with the veteran's claims folder. The RO was further requested to schedule the veteran for special VA ophthalmology, audiological, and general VA examinations to determine the nature and etiology of the veteran's exophoria, claimed defective hearing, and residuals of a right inguinal hernia repair. The examinations were to be conducted in accordance with Chapter 3, Sections I and 11, and Chapter 7, Section III, paragraph 7.29, respectively, of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies were to be performed and all findings were to be reported in detail. Comprehensive reports, with attention to the history of the disabilities, claimed or otherwise, were to be furnished. The veteran's claims folder, or duplicates of pertinent documents located therein, were to be made available to the examiners for review prior to the examination. In September 1993, the RO requested that the veteran fill out and return NA Forms 13055 (Request for Information Needed to Reconstruct Medical Data) and 13075 (Questionnaire about Military Service), as well as authorizations for release of records from each facility or physician providing treatment during the post- service period. The veteran forwarded responses to these requests in October 1993. In November 1993, the RO requested that the Watson Clinic, Dr. F. M. Green, the Lakeland Medical Center, and the executor of the estate of L. R. Baumgartner, M.D., forward copies of all treatment records relating to the veteran. The VA examinations were performed in October 1993. The letter sent to the executor of the estate of L. R. Baumgartner, M.D., was returned as undeliverable due to the forwarding address having expired. A letter was received from Maury Fisher, M.D., in December 1993 indicating that his office had no treatment records concerning the veteran. Copies of treatment records of the Lakeland Regional Medical Center, the Watson Clinic, and F. M. Green, M.D., were received in December 1993. Additional requests for information forms were sent to the NPRC in January and March 1994. A response was received from the NPRC indicating that the veteran's service medical records or Surgeon General's Office records could not be reconstructed. As this matter has been remanded by the Board on two occasions and numerous attempts have been made to obtain additional records, we are of the opinion that the duty to assist has been satisfied. I. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. 1110, 1331 (West 1991). Regulations also 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) (1993). If the disorder is a chronic disease, such as a sensorineural hearing loss, service connection may be granted if manifest to a compensable degree within the prescribed period of time following separation from service. 38 U.S.C.A. 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). II. Chronic Defective Hearing A review of the record demonstrates that the veteran served as a member of the 807th Air Base Group from January 1952 to January 1955. At his January 1990 personal hearing, the veteran indicated that he had been treated for a hearing loss at the Barksdale Air Force Base in Louisiana. He further reported that the examiners had told him that his hearing loss was due to aircraft noise exposure. He further testified that he had worked on the flight line loading weapons aboard aircraft. Transcript page 3 (T. 3). The veteran also indicated that although he wore ear plugs during the performance of his duties, they did him no good. (T. 3). While the veteran testified that his hearing loss started in service, there are no objective findings of a hearing loss during or in the immediate years following service. Medical literature states that exposure to noises of sufficiently high intensity may result in a temporary or permanent loss of hearing. The loss may occur in two different ways: either from long-term exposure to a hazardous noise environment (noise-induced hearing loss) or from short-term exposure to a single blast of intense noise (acoustic trauma). The onset of hearing loss in acoustic trauma is "characteristically instantaneous." In contrast, the onset of noise-induced hearing loss is characteristically "insidious." A temporary loss of hearing occurs, which recovers within a few days after noise exposure ceases. With excessive noise exposure, however, the recovery process does not occur, and a permanent sensorineural hearing loss is effected. S. Jerger and J. Jerger, Auditory Disorders: A Manual for Clinical Evaluation 119-123 (1981). Therefore, one could reasonably expect a hearing loss in this case to have occurred during service or in close proximity thereto. A June 1992 private treatment record from the Watson Clinic indicated that a review of the veteran's systems specifically found there to be no hearing loss or tinnitus. The first available objective medical finding of a hearing loss was not until October 1993. A VA audiological examination performed at that time revealed decibel level readings of 15, 25, 70, 75, and 85, at Hertz levels of 500, 1000, 2000, 3000, and 4000, in the right ear, and decibel level readings of 15, 20, 60, 60, and 65, at Hertz levels of 500, 1000, 2000, 3000, and 4000, in the left ear. Speech discrimination scores of 60 percent and 70 percent were reported in the right and left ear, respectively. It was the examiner's impression that the veteran had normal hearing through the 1000 Hertz level with moderately severe to severe sensorineural hearing loss at 2000 to 4000 Hertz in the right ear, and normal hearing through the 1000 Hertz level with moderately severe sensorineural hearing loss at 2000 to 4000 Hertz in the left ear. While the Board is sympathetic to the testimony of the veteran, he is not qualified to render a medical opinion as to the etiology of his current hearing loss. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, the first objective medical finding of a hearing loss was not made until more than 32 years after the veteran's separation from service. While the October 1993 VA examination shows that the veteran presently has a bilateral sensorineural hearing loss, it offers no evidence to link it to the veteran's service. Given the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for chronic defective hearing. III. Residuals of Right Inguinal Hernia Repair At his January 1990 personal hearing, the veteran reported having undergone an inservice hernia repair while stationed in Georgia. He indicated that following the lifting of heavy objects, the area of surgical repair would become sore. He further testified that his right side continued to bother him and that he felt something in the area of surgery when lifting. (T. 7). While the veteran reported that two individuals knew of the surgery, he indicated that they were deceased. (T. 8). Private treatment records of 1992 note evidence of post-herniorrhaphy in the past medical history portion of the reports, which the veteran indicated occurred in 1945. At his October 1993 VA examination, the veteran reported having undergone surgical repair of a right inguinal hernia in 1948. Examination revealed that there was a scar of the right inguinal hernia repair which measured approximately 4 centimeters in length and was found to be nontender and well-healed. The examiner also reported there to be no evidence of a hernia at the time of the examination. Following the examination, the examiner rendered a diagnosis of status post right inguinal hernia repair. As previously noted, the veteran's service medical records are unavailable through no fault of his own. A review of the available medical records reveals the veteran's consistent report on both private and VA examinations that a right inguinal hernia was repaired during service. All dates reported to medical examiners by the veteran corresponded to service dates between 1945 and 1948. A similar history was also provided in sworn testimony by the veteran. The uncontroverted evidence supports the veteran's claim that a right inguinal hernia was repaired during service. Accordingly, service connection for residuals of right inguinal hernia is in order. IV. Exophoria, as a Residual of Yellow Fever A review of the record demonstrates that the first objective medical finding of exophoria did not occur until September 1982. In a December 1988 letter, the veteran's private physician, S. M. Green, M.D., noted that the veteran had a problem reading due to a high exophoria at near. Dr. Green reported that the veteran's exophoria varied between 12 EXO (one method) and 19 EXO (another method). He indicated that the second method was more accurate. Dr. Green noted that he had previously explained this to the veteran when he refracted him in September 1982. At his January 1990 personal hearing, the veteran indicated that he was hospitalized in Germany while in service for treatment of yellow fever. He testified that his eyes turned yellow and stayed yellow for approximately six or seven months. (T. 2). He further indicated that he was hospitalized for this entire time period. (T. 5). The veteran reported having pain and trouble seeing when his eyes were discolored. He further testified that although his eyes returned to normal, he would have to strain at times to see things and his eyes would hurt. The veteran also indicated that when trying to read, letters would run together. (T. 6). An April 1992 physical examination performed at the Lakeland Medical Center reported that the veteran's pupils were equal, round, and reactive to light. Extraocular movements were reported to be intact and no scleral icterus was noted. The eyelids and conjunctivae were reported as normal. Fundi examination showed no papilledema, arteriovenous nicking, microaneurysms, hemorrhages, or exudates. A May 1992 Lakeland Regional Medical Center hospital record indicated that the veteran reported having had either yellow fever or hepatitis in 1948. An October 1993 VA examination showed that the veteran had 20/70 vision in the right eye and 20/60 vision in the left eye, collectable to 20/30 in the right and 20/25 in the left. Motility was reported as full and the orbits were reported as symmetric. A November 1993 VA eye examination reported that the veteran had 4 prism diopters of exophoria, which was nonsymptomatic. It was the examiner's impression that the veteran had mild exophoria of an unclear etiology, which required no treatment. As the first objective finding of exophoria did not occur until 1982, approximately 22 years after service, and the medical evidence presently of record does not relate the veteran's exophoria to service, or to the claimed yellow fever in service, service connection is not in order. While the veteran has indicated his belief that his exophoria arose as a residual of yellow fever, he is not qualified to render an opinion as to the etiology of the exophoria. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Given the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for exophoria. ORDER Service connection for chronic defective hearing and exophoria is denied. Service connection for residuals of a right inguinal hernia repair is granted. JOHN E. ORMOND WILLIAM J. REDDY Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals M. SABULSKY Member, Board of Veterans' Appeals RENEE M. PELLETIER SHANE A. DURKIN Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals JANE E. SHARP Member, Board of Veterans' Appeals 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.