BVA9501758 DOCKET NO. 91-24 143 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to service connection for ear fungus and hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from January 1940 to March 1947. This case was most recently before the Board of Veterans' Appeals (BVA or Board) in December 1992, when it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, for additional evidentiary development, including the performance of a medical examination that had been requested previously in connection with the claim for fungal infections of the ear but not undertaken. The aforementioned examination was scheduled to occur in April 1994, but it was learned at or about the time of the evaluation from the veteran's spouse that the veteran had been hospitalized for treatment for carcinoma of the lung and that he had just recently been released from the hospital. VA personnel advised the veteran's spouse to inform the veteran that he should advise the RO when he felt able to undergo medical examinations. No response was thereafter received from the veteran through December 1994, when the case was returned to BVA for additional consideration. The RO did advise the veteran in May 1994, by means of a supplemental statement of the case, of its denial of the issues presented on the basis of his failure to report for a scheduled examination. See 38 C.F.R. § 3.655. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in substance, that currently existing disorders involving ear fungus and hearing loss had their onset in service, and additionally, in the alternative, he alleges that his hearing loss is due to recurrent fungal infections of the ears. Medical assistance reportedly was received in service for multiple episodes involving ear fungus. Significant noise exposure in service is noted and it is asserted that auditory impairment was present since service discharge. DECISION OF THE BOARD BVA, 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 BVA that the record supports a grant of entitlement to service connection for ear fungus and that a preponderance of the evidence is against the veteran's entitlement to service connection for hearing loss on either a direct or secondary basis. FINDINGS OF FACT 1. Fungal infections of the ear were present inservice and for years thereafter and it is shown that residuals thereof continue to be present. 2. Notwithstanding the presence of inservice acoustic trauma, the veteran's auditory acuity in service and for more than 20 years following his discharge from service is not shown to have been impaired. 3. It was not until 1970 that any hearing loss of the veteran is documented, and there has been no showing that the veteran's current hearing loss is secondary to inservice acoustic trauma or disability for which service connection has already been established. CONCLUSIONS OF LAW 1. Ear fungus was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. Hearing loss was not incurred in or aggravated by military service, nor may a sensorineural hearing loss be presumed to have been incurred therein, nor is hearing loss proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, it is found by BVA that the veteran's claim for benefits is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. As well, BVA is satisfied that to the extent possible all relevant facts involving the claim have been developed. Through no fault of the veteran, an otolaryngological examination that was to have been performed at the time of a VA audiological examination in February 1992, pursuant to the BVA's request in November 1991, was not undertaken. Unfortunately, as well, he was unable to undergo a rescheduled examination in April 1994 because of treatment for lung carcinoma, which clearly was "good cause" for his failure to report. In light of the foregoing, and inasmuch as the record is deemed to be adequate for equitable disposition of each of the issues presented, BVA vacates the RO's denial of the claim in November 1994 on the basis of 38 C.F.R. § 3.655 and proceeds to address the merits of each issue presented. I. Ear Fungus In this instance, the veteran is entitled to a presumption of soundness at service entrance with respect to a fungal infection of the ear, inasmuch as none was identified on an enlistment medical examination in January 1940. 38 U.S.C.A. § 1111 (West 1991). The notation in service medical records two days after that examination that the veteran's eardrums were scarred and thickened, without any clinical correlation to a prior or existing problems involving ear fungus, cannot be considered to be evidence showing that ear fungus clearly and unmistakably pre- existed service. As such, the presumption of soundness is not adequately rebutted. As to whether there was service incurrence of the disorder in question, it is evident that available service medical records, which may be incomplete, document no fungal infection of the ears. There is shown to have been fungal involvement of the feet on a separation medical evaluation, when it was also noted that there was a history of ear fungus. Clinical examination of the ears demonstrated no abnormality on that occasion. Nevertheless, three of the veteran's fellow servicemen have provided affidavits, two of which are notarized, to the effect that they were aware in service that the veteran had ear fungus while stationed in Guadalcanal, New Guinea, and New Britain. One of the affiants later became the veteran's treating physician, and he has reported that he treated him in the 1950's and 1960's for mycotic otitis. Continuing problems with otitis are identified in 1990 when the veteran described a history of frequent ear infections. He again disclosed a history of periodic infections of the external ears since his military service in the South Pacific when undergoing a VA audiological examination in 1992. In the BVA's opinion, the evidence presented, including the uncontroverted statements of the veteran as to the history of his fungal infections of the ear, is in relative equipoise. Accordingly, the veteran must be given the benefit of the doubt and it therefore is determined that he is entitled to service connection for fungal infections of the ears. II. Hearing Loss The veteran's military separation document indicates that, from 1944 to 1947, he served in the U.S. Marine Corps as a rifleman. In consideration of the veteran's military occupational specialty and his statements that he was exposed to much artillery noise in service, the existence of inservice acoustic trauma must be conceded. However, testing of the veteran's auditory acuity throughout service disclosed no impairment whatsoever, and complaints or findings relating thereto are not documented for many, many years after service. It was not until 1990 that a treating physician reported that increasing deafness of the veteran had become obvious since 1970. The existence of a moderate sensorineural hearing loss of both ears, meeting the criteria of 38 C.F.R. § 3.385, as amended December 27, 1994, was shown on a VA audiological examination in 1992. Notwithstanding the inservice acoustic trauma or treatment of malaria with quinine and Atabrine, no medical professional has linked either with the hearing loss first clinically noted in 1970. Moreover, no competent evidence has been presented to link the inservice fungal infections of the ears with the hearing loss first shown some 23 years after service separation. While BVA takes note of the veteran's report of bilateral hearing difficulty since World War II, evidence supporting that allegation is lacking and a grant of service connection for hearing loss, be it on a direct or secondary basis, would at this juncture be contrary to the evidence of record. As such, service connection for hearing loss must be denied. ORDER Service connection for ear fungus is granted. Service connection for hearing loss is denied. ALBERT D. TUTERA 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.