BVA9503038 DOCKET NO. 93-02 427 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic bilateral defective hearing. 2. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 until March 1953. This appeal arises from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for bilateral defective hearing and sinusitis. This case was remanded for further development of the evidence in October 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection should be established for bilateral defective hearing and sinusitis, in that such disabilities had their origins during his period of active 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 for service connection for bilateral defective hearing and sinusitis. FINDINGS OF FACT 1. Bilateral defective hearing was not manifest during active service or within the initial post-service year and is not shown to be related to the veteran's active service or any incident therein. 2. Chronic sinusitis was not manifested during active military service and is not shown to be related to any incident therein. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by service, and service incurrence of chronic sensorineural hearing loss may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). 2. Chronic sinusitis was not shown to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. § 3.307 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. §§ 5107(b) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. §§ 5107(b) (West 1991). This case was remanded to obtain the medical records of the veteran from his private physician, the Missouri Pacific Railroad Hospital and various VA Medical Centers. The RO has made a reasonably exhaustive search for these records. When they were unable to contact the veteran for more information they requested that his representative contact him. The representative was unable to locate the veteran. For that reason the RO proceeded to readjudicate the claim. To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when they are manifested to a compensable degree within the initial post service year. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1993). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b)(West 1993). On service entrance examination in March 1951, the veteran's was recorded as 15/15 for the whispered and spoken voice, bilaterally. Service medical records are negative for any complaints or treatment of a hearing loss. On service separation in March 1953 his hearing was again reported as 15/15 for the whispered and spoken voice, bilaterally. He gave a history of running ears. On an examination, for Army Reserve purposes in February 1956, his hearing was recorded as 15/15 for the whispered voice, bilaterally. His report of medical history notes treatment for eyes, ears, teeth and gums in February 1956. Under the heading for hearing loss noted "NO" is checked on an April 1973 VA examination. In a December 1989 outpatient treatment note, he reported that he had had bad hearing for years. He had a three day history of a ruptured right ear drum with pain and drainage. Recurrent bilateral otitis media was reported. The first clinical confirmation of bilateral defective hearing appears in a VA Cumulative Audiological Record containing test results from January and September 1990. A VA prescription form from September 1990 notes that he was evaluated and medically cleared for hearing aids. At his personal hearing in May 1992 the veteran testified that he served in the artillery. His job was in communications and he handled the radio. He said he was exposed in service to artillery fire without any ear protection. When asked if he had a hearing loss in service, he replied the he had a hearing loss in his left ear, even before service and that his right one was now bad too. The Board has analyzed the guidelines outlined by the Court of Veteran's Appeals (Court)in the cases noted in the representative's statement of January 1993. The Court in Jones v. Derwinski, 1 Vet.App. 210 (1991), held that it was not necessary for the medical records to carry the same diagnosis of a disorder to demonstrate chronicity if there was a showing of continuity of symptomatology. In this case there were no complaints or symptoms of "bad" hearing until 1989. In Cartwright v. Derwinski, 2 Vet.App. 24 (1991), the Court held that it was not necessary for a veteran to present medical evidence to demonstrate service connection for a disorder. The Board was to look at the evidence as a whole. In this case there is medical evidence in the claims folder of examinations in 1956 and 1973 that found no hearing loss between the date of service separation and the filing of the veteran's claim. The representative has also noted that the Board must make a determination as to the credibility and probative value of the veteran's testimony as outlined in Wilson v. Derwinski, 2 Vet.App. (1991). The Board finds that the veteran's testimony as to his hearing loss is not credible. It is not consistent with the clinical record. The statement that he made that he was denied a job at Chevrolet, after service separation, because he had bad hearing is not consistent with his notation on his February 1956 Report of Medical History. He wrote that he was denied a job at Chevrolet Motor Company because of "blood pressure" and "heart beat not normal". Nothing in the claims folder establishes that the veteran's currently demonstrated bilateral defective hearing had its origins in active service. Service connection for bilateral defective hearing is not warranted. The Board will now consider the issue of service connection for chronic sinusitis. On service entrance examination in March 1951, the veteran's sinuses were reported to be normal. A January 1952 service medical record notes frontal sinus pain and tenderness. In December 1952 a radiographic report of the sinus series notes that the frontals were fairly well developed and clear. The ethmoids were clouded inferiorly on the left. The antra were hazy with clouding on the left with diffuse membrane thickening and some suggestive membrane thickening on the right. The sphenoids showed no definite indication of disease. The impression noted was left antral and inferior ethmoid sinusitis, probably chronic and acute, with questionable, membrane thickening on the right. A later examination in December 1952 noted a history of minimal congestion of the mucosa, with good air way bilaterally and no secretions. The pharynx was clean and the nasopharynx was empty. The impression recorded was that the patient had no active sinus disease at the time. Neo-Synephrine nose drops were prescribed. In January 1953 he complained of having headaches for three weeks with frontal sinus tenderness. A radiographic report recorded that his sinuses were normally developed. There was a considerable thickened membrane in the left antrum, probably due to an old or subsiding sinus infection. The sinuses were other wise clear. Acute sinusitis caused by an unknown organism was diagnosed. On service separation in March 1953 his sinuses were again noted to be normal. He gave a history of sinusitis. A VA discharge summary of hospitalization in February 1973, contains a notation that sinus X-rays were normal. On a VA examination in April 1973 he complained of headaches but did not mention any sinus complaints. On examination his nose was noted to be negative. A February 1989 VA outpatient report has a diagnosis of nasal airway obstruction. A VA examination in March 1991 records that he had had recurrent problems with sinus infection and upper respiratory tract infection for about one month. His nasal mucous membranes were swollen and inflamed bilaterally. His nasal septum was deviated to the right. There was a very narrow passage on the right, which was swollen shut. He gave a history of having had sinus infections all of his life. He was scheduled to have surgery on his nose. He said his X-rays of the maxillary sinuses showed that they were closed up and inflamed. A VA hospital summary includes a history of recurrent sinus infections. The claims folder contains the VA outpatient treatment records from 1991-1993 of treatment for sinus problems. In January 1992 the VA medical records reveal he had a septoplasty, nasal valve surgery and a rhinoplasty. The regulations require that there be sufficient symptomatology or a clear diagnosis of a chronic disorder to establish service connection. In service there is a notation on one radiographic report of probable "chronic" or acute sinusitis. The later diagnosis made after testing and treatment was acute sinusitis. There are only two incidents of sinusitis recorded in service, one in January 1952 and another in December 1952 and January 1953. There is nothing in the service medical records which connects these two infections. If the chronicity of a disorder has not been established in service there must be continuity of symptomatology. The service separation examination did not note any abnormalities of the sinuses. After service no symptoms of sinusitis were recorded on a hospital summary in February 1973 and sinus X-rays did not reveal any swelling or indication of sinusitis. A VA examination in April 1973 also revealed no sinusitis. The veteran has opined that he has had sinusitis since service. The clinical record does not confirm chronic sinusitis until the 1990's. There is a record of complaints of head and chest congestion in 1989. The veteran's testimony is not supported by the clinical evidence of record and is not persuasive. He is not competent to diagnose chronic sinusitis or connect it to active service and has given a history of lifelong problems. There is nothing in the record that connects the sinusitis treated in service with the onset of the currently diagnosed chronic sinusitis. The Court's decision in Jones, 1 Vet.App. 210 (1991) is not applicable to this case since the issue does not involve a difference in diagnosis but continuity of symptomatology. If there was no medical evidence after service until the first medical notation of chronic sinusitis, Cartwright, 2 Vet.App. 24 (1991) would be applicable. In this instance there is medical evidence between the time of service separation and the current diagnosis which does not establish continuity of symptomatology. Service connection for sinusitis is not warranted. ORDER Service connection for chronic bilateral defective hearing is denied. Service connection for chronic sinusitis is denied. SAMUEL W. WARNER 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.