Citation Nr: 0007952	
Decision Date: 03/23/00    Archive Date: 03/28/00

DOCKET NO.  95-34 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to secondary service connection for bilateral 
defective hearing.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The veteran, wife, and friend


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The veteran had active service between 1944 and 1948.  

By rating action in March 1986, service connection was denied 
for a chronic ear disorder.  The veteran was notified of this 
decision and did not appeal.  

This matter initially came before the Board of Veterans' 
Appeals (Board) on appeal from a May 1995 decision by the RO 
which denied service connection for bilateral defective 
hearing.  A personal hearing before the RO was conducted in 
November 1995.  The Board remanded the appeal to the RO for 
additional development in May 1997.  At that time, the Board 
noted that the representative had raised the issue of 
secondary service connection for hearing loss due to a 
chronic ear disorder, and concluded that the additional issue 
was inextricably intertwined with the claim for direct 
service connection.  

In August 1999, the Board denied the claim of direct service 
connection for bilateral defective hearing, and remanded the 
issue of secondary service connection for additional 
development.  

In November 1999, the RO found that new and material evidence 
had not been submitted to reopen the claim of service 
connection for a chronic ear disorder, and denied the claim 
of secondary service connection.  A Supplemental Statement of 
the Case on the issue of new and material evidence to reopen 
the claim of service connection for a chronic ear disorder 
was promulgated on November 24, 1999, and was sent to the 
veteran and his representative on the same day, along with a 
cover letter.  The letter informed the veteran that a 
substantive appeal, or its equivalent in correspondence, must 
be received within 60 days in order to perfect an appeal with 
regard to the additional issue.  The veteran did not respond.  
Accordingly, the issue to reopen the claim of service 
connection for a chronic ear disorder is not in appellate 
status and can not be addressed in this decision.  

In the Supplemental Statement of the Case noted above, the RO 
mentioned in the body of the decision that the issue of 
secondary service connection for hearing loss was moot on the 
basis that the veteran was not service connected for any 
disability.  He was, however, not specifically informed of 
the need to file a substantive appeal with regard to the 
secondary service connection issue and the time limits to do 
so.  In a statement dated in February 2000, the 
representative brought up the issue of service connection for 
bilateral hearing loss, and the Board will accept this as a 
timely substantive appeal.


FINDINGS OF FACT

1.  The veteran is not service connected for any disability.

2.  As the veteran is not service connected for a chronic ear 
disorder, there is no service-connected disability to which 
bilateral defective hearing, may be attributed.  


CONCLUSION OF LAW

Service connection for bilateral defective hearing secondary 
to a chronic ear disorder is denied.  38 U.S.C.A. §§ 1110, 
1131, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's service medical records were apparently 
destroyed by fire and are unavailable for review.  (See 
response from the National Personal Records Center (NPRC) in 
January 1986.).  At the time of his original claim of service 
connection for an ear disorder in December 1985, the veteran 
provided the names of several physicians who had treated him 
for various medical problems (see also veteran's letter in 
February 1986).  The veteran indicated that most of the 
physicians were deceased, and that he had tried, 
unsuccessfully, to obtain copies of records from the offices 
of the deceased doctors.  The RO sent letters to the 
remaining physicians and requested that they provide copies 
of any treatment records pertaining to the veteran.  A 
response from one of the physicians indicated that no records 
could be located pertaining to the veteran.  No response was 
received from the two remaining physicians.  

Additionally, in September 1997, the RO informed the veteran 
that he could submit alternative forms of evidence, such as 
statements from service medical personnel, "buddy" 
statements, employment medical records, and insurance 
examinations.  The RO also requested that the veteran provide 
the names of all medical care providers who had treated him 
for his ear problems or hearing loss since service.  No 
response was received from the veteran.  Lastly, the Board 
notes that the RO was informed in May 1998 that there were no 
SGO records pertaining to the veteran.  

In the case at hand, the Board is satisfied that it has 
fulfilled its "heightened obligation" to assist the veteran 
in the development of his claim where service medical records 
are unavailable through no fault of the claimant.  O'Hare v. 
Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. 
App. 401 (1991).  Accordingly, the Board will proceed to 
adjudicate the veteran's claim based on the available 
evidence of record.  

The veteran's service separation examination in October 1948 
indicated that he was treated for an ear infection over a 
one-week period in December 1948.  The report also noted a 
history of chronic otitis media in the left ear which existed 
prior to service.  On examination at that time, the veteran's 
hearing was 15/15, bilaterally for whispered and spoken voice 
testing.  

On his original application for VA compensation benefits 
received in December 1985, the veteran reported that he was 
first treated for ear problems post service in 1969.  As 
indicated above, the RO's attempts to obtain copies of 
medical records from those physicians were unsuccessful.  The 
first medical evidence of a hearing loss, diagnosed as 
bilateral sensorineural hearing loss, was noted on a private 
medical report dated in September 1992.  

At the personal hearing in November 1995, the veteran 
testified that he believed that his bilateral defective 
hearing was due to a chronic ear disorder in service.  

Pursuant to the provisions of 38 C.F.R. § 3.310(a) (1999), a 
disability which is proximately due to or the result of a 
service-connected disease or injury shall be service 
connected.  In a case such as this, however, where the 
underlying disability, claimed to have caused the disability 
for which service connection is sought, is not itself service 
connected, the regulation, and not the evidence, is 
dispositive.  Since the veteran is not service connected for 
a chronic ear disorder, and the veteran seeks service 
connection for a bilateral defective hearing secondary to a 
chronic ear disorder, the claim must be terminated because of 
the absence of legal merit or lack of entitlement under the 
law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  As there is 
no basis to grant secondary service connection for a 
bilateral knee disorder, the veteran's claim is denied.  


ORDER

Entitlement to secondary service connection for bilateral 
defective hearing is denied.  



			
	Iris S. Sherman
	Member, Board of Veterans' Appeals