BVA9504242 DOCKET NO. 93-11 639 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an ear disorder to include perforated membrane, right ear, and hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from November 1951 to January 1952. This appeal to the Board of Veterans' Appeals (Board) arises from the June 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which denied service connection for an ear disorder, to include hearing loss. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he is entitled to service connection for an ear disorder. The veteran contends that he has residuals of a perforated right ear drum sustained during service, to include hearing loss. 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 folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that preponderance of the evidence is against the veteran's claim for service connection for an ear disorder, to include perforated membrane of the right ear and hearing loss. FINDINGS OF FACT 1. Service records state that the veteran was discharged because of a disease that pre-existed service. 2. The reports of employee medical examinations before and after service indicate that the veteran had no ear abnormalities prior to 1959. 3. The veteran's hearing loss was first documented in 1981. CONCLUSION OF LAW An ear disorder, to include hearing loss, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded; that is, the claim is plausible. The Board is mindful that in a case such as this one, where service medical records have been lost, there is a heightened duty to assist the veteran in developing the evidence that might support his claim. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). The Board finds that the RO has met its obligation to the veteran. The record reflects that the veteran was allowed an extra thirty days to obtain additional records following his personal hearing, and the RO made extensive, although largely unsuccessful attempts to locate records of reported private treatment during the period of January 1952 to September 1971. There is no indication that there are unobtained records which are available and which would aid a decision in this case. Accordingly, we conclude that the record is complete and that there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual Background Most of the veteran's service medical records were apparently destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. Available records, including daily sick reports, indicate that the veteran was hospitalized during December 1951 and January 1952 for unspecified medical problems initially considered to have been in the line of duty; the morning reports of December 10, 1951 and January 12, 1952 show that the disability treated was then noted to have existed prior to service. At the time he was discharged from the hospital and returned to duty on January 12, 1952, in connection with his discharge from military service, it was reported that he had been treated for disease which was not sustained in line of duty but which existed prior to military service. It was also noted that no further treatment was required. The DD Form 214 states that the veteran was discharged in January 1952 because of a disability that existed prior to service, and was not aggravated by service. At the time the veteran filed his initial claim for service- connected benefits, in May 1985, he reported that he had sustained a "burst" eardrum in service, on the right, for which he received medical treatment. He denied any post-service treatment for same. Records of the veteran's employee medical examinations show that no ear abnormalities were indicated in May 1948, January 1951, April 1953, January 1956, March 1971, June 1976, April 1978, January 1984, August 1986 and October 1990. The November 1959 report indicates that the veteran had chronic otitis in the right ear. Private medical records dated September 1971 through April 1972 indicate that the veteran was treated for chronic otitis media and resolving perforation of the right tympanic membrane. In September 1971 it was noted that he had denied recent ear problems or pain; his ear had "popped" at work, and started to drain. Mild, high frequency hearing loss and scarring of the right tympanic membrane were noted during the November 1981 employee medical examination. Additional audiological tests conducted by the veteran's employer in September 1986 and August 1991 demonstrated increasing hearing loss. The report of an April 1991 audiological examination shows that the veteran gave a history of right tympanic membrane perforation in 1951, and hearing problems since service. The report also noted that for 42 years the veteran worked in mining, inside and outside on a tipple. Also of record are lay statements by the veteran's family members and a friend who assert that he had no ear problems prior to service. His mother and brothers state that the reason for the veteran's discharge was an ear problem that is described as a "bursted" ear drum. The veteran's wife asserts that he has had a hearing problem since 1957. She also reports that from 1957 until the 1970's the veteran sought treatment for drainage from his right ear which was finally cleared up with medication. At his March 1992 personal hearing the veteran testified that he was discharged from service because of a right ear drum perforation and was bothered with drainage from his right ear until 1960. He described his current problem as plugging up of the ear several times each year during the winter months. It was his testimony that he had no ear problems prior to entering the military and did not know why his ear drum burst during service. He asserted that he was actually never told why he was discharged from service, but it was his presumption that the reason was his perforated ear drum. Subsequent to his personal hearing the hearing officer allowed the veteran 30 days in which to seek out records of reported private treatment during 1952 to 1971. The record also reflects that the RO attempted unsuccessfully to obtain treatment records from medical care providers identified by the veteran. Entitlement to Service Connection for an Ear Disorder Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Each disabling condition as shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154. The veteran has presented no objective medical evidence to support his claim. The only available medical evidence which pertains to the veteran's ear and was recorded close to service is the report of the veteran's employee examination conducted in January 1952, the month the he was discharged from service. Neither that examination report nor the record of his May 1948 employee examination indicates any abnormality related to the veteran's ears. The earliest record of medical problems with the veteran's right ear is the November 1959 examination report which indicates chronic otitis. That report and the records of subsequent treatment are too remote in time to be probative of events in service. The earliest documentation of a hearing loss is contained in the report of the veteran's November 1981 examination. The claims folder is devoid of medical evidence to link the veteran's post-service ear problems to service. The only evidence that supports the veteran's claim is contained in the lay statements submitted by his relatives and friends, and his own assertions, including the testimony he gave under oath at his personal hearing. However, these statements are assigned reduced evidentiary value inasmuch as they were made in 1992, when the authors were reporting facts based on their memory forty years after the events at issue. Moreover, although they can attest to their own memory that the veteran had no symptoms of ear problems prior to service, none of the authors, including the veteran, is qualified to offer evidence requiring medical knowledge, such as assertions that there were no medical problems with the veteran's right ear prior to service, or that there was an increase in basic pathology during service. Contemporaneous medical records attest to the contrary that the veteran's discharge from service was necessary because of a disease which existed prior to service. In fact, although service records show that the veteran was hospitalized on active duty, there is nothing to confirm his contention that a perforated tympanic membrane was the reason for his hospitalization, or his ultimate discharge. The veteran acknowledged at his personal hearing that he was not directly told the medical reason for his discharge, but presumed it to be related to an ear problem. The Board finds that the preponderance of the evidence is against the veteran’s claim for service connection for an ear disorder. Accordingly, 38 U.S.C.A. § 5107(a) is not for application in this instance. In the absence of objective medical support for the veteran's claim the Board concludes that a basis for service connection for an ear disorder, to include right perforated membrane or hearing loss, is not established. ORDER Service connection for an ear disorder, to include perforated membrane and hearing loss, is denied. _____________________________ N. R. ROBIN 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.