Bruce v. West

11 Vet. App. 405, 1998 U.S. Vet. App. LEXIS 1063, 1998 WL 544909
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 28, 1998
DocketNo. 96-353
StatusPublished
Cited by14 cases

This text of 11 Vet. App. 405 (Bruce v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruce v. West, 11 Vet. App. 405, 1998 U.S. Vet. App. LEXIS 1063, 1998 WL 544909 (Cal. 1998).

Opinion

STEINBERG, Judge:

The appellant, World War II veteran Walter Bruce, appeals, through counsel, a December 6, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) that denied service connection for bilateral hearing loss and a compensable rating for service-connected otomycosis of the left ear. Record (R.) at 6, 13. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the BVA decision in part and vacate it in part and remand a matter.

I. Background

The appellant served on active duty in the U.S. Army from February 1943 to February 1946. R. at 58-59. A February 1943 induction medical examination reported hearing acuity as 15/15 bilaterally. R. at 17. He served as a fire-control instrument operator, which involved directing and conducting artillery fire (R. at 59), apparently without the use of earplugs (R. at 148). His discharge examination indicated, in relevant part, oto-mycosis in his left ear. R. at 50. (“Otomy-cosis” refers to a “fungal infection of the external auditory meatus”. Dorland’s Illustrated Medioal Dictionary 1205 (28th ed.1994).)

In March 1946, immediately after his discharge, the veteran filed an application with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) for VA service-connected disability compensation or non-service-connected pension. In the box where the application form requested the disability for which compensation was being sought, he responded: “Fungus infection in ear-to present-impairs [illegible] hearing-[illegible] 1945-”. Supplemental (Suppl.) R. at 1-2. The VA rating worksheet for this application listed the disabilities on different lines as “otomycosis” and “hearing” and recorded measured hearing levels that do not suggest any hearing loss. Suppl. R. at 4. The VARO decision awarding service connection also listed both “oto-mycosis” and “hearing”, but on the same line. R. at 62. The March 1946 RO award letter informing the veteran of the RO decision, however, provided only that he had been awarded service connection for a “Hearing Condition”, rated at 0% disabling. Suppl. R. at 6.

In 1949, an RO reevaluated the veteran’s original claim, and the accompanying decision is almost identical to the 1946 RO decision in listing both “otomycosis” and “hearing” on the same line and noting measured hearing levels that do not suggest any hearing loss. R. at 64. An October 1949 RO letter again informed the veteran only that he had been awarded service connection for a hearing condition, rated at 0% disabling. Suppl. R. at 8.

The veteran sought disability compensation in 1962, complaining of a fungal infection over various parts of his body, including his ears. R. at 66-69. An examination report diagnosed various skin conditions (R. at 76), but a March 1963 RO decision denied service connection for these conditions, noting that, although the veteran was “service connected for otomycosis”, there was “no relationship [407]*407between the skin conditions] now diagnosed and the otomycosis during military service” (R. at 78).

In November 1990, the veteran filed an application for compensation or pension seeking the following: “Re-open s/c claim for ear/hearing and appendicitis & skin. Request hearing examination at YAMC [illegible] & confirm my hearing loss (s/c)”. R. at 83-86. The RO determined in December 1990 that “service connection for hearing loss [was] not established as [it was] not shown to have been incurred in or aggravated by military service” and also that “there [was] no evidence to show any increased severity in the service-connected ... fungus of the ears”; hence, the RO denied both claims pertaining to his ears. R. at 88-89. The veteran asked for reconsideration and, in support, submitted letters from Drs. Resneck (R. at 97) and Winder (R. at 100), as well as a January 1991 letter from Dr. Pou, a private physician, who stated:

Both ear canals were slightly dry and scaly, but he did have a little ear wax. The tympanic membranes appeared normal. There was no evidence of any fungus infection at this time.

R. at 91. An April 1991 VA examination report showed average puretone thresholds of 55 decibels for the right ear and 44 deci-. bels for the left ear with speech recognition of 92% bilaterally. R. at 111. In addition, a VA medical examination report received by the RO in May 1991 concluded:

Hearing may be diminished.... The ear canals are clean. The eardrums show no perforation or discharge.

R. at 116. Based on the above findings, a May 1991 RO decision confirmed the March 1963 RO decision and noted that the “[m]ost recent examination shows no fungus infection at all” and that “[s]ervice connection for hearing loss is not shown to have been incurred in or aggravated by military service”. R. at 123. The veteran timely appealed to the Board. R. at 125,133.

In support of the appealed claims for an increased disability rating for otomycosis and for service connection for hearing loss, the veteran and his wife testified under oath before the RO in October 1992 about the origins of these conditions, about the symptoms he was then experiencing, and about the need for daily self-treatment of his ears. R. at 144-53. In November 1994, the BVA remanded the case for further development of the claims, including a “VA examination” to determine the extent and severity of his service-connected otomycosis and of his non-serviee-connected hearing loss. R. at 171-73.

In accordance with the Board’s remand, a February 1995 VA examination was conducted. R. at 175-82. Records from that examination showed average puretone thresholds of 59 decibels for the right ear and 46 decibels for the left ear with speech recognition of 80% bilaterally. R. at 176. In addition, in an ear examination report signed by Dr. Hollier, it was noted that the veteran had a medical history of left ear “swollen periodically [with] slight pain and itching” and complained of those symptoms; that the veteran’s auricles, external canals, and tympanic membranes were all described as “WNL” (within normal limits); that the only “active ear disease” recorded was sensorineural hearing loss; and that he was diagnosed as having bilateral sensorineural hearing loss “[b]y patients [sic] history”. R. at 180-82. Thereafter, in an April 1995 medical opinion Dr. Gilbert (it is unclear whether or not Dr. Gilbert was a VA employee) noted the bilateral hearing loss and opined: “There is no etiological relationship between service[-]connected otomycosis of left ear and hearing loss of left ear”. R. at 184. Subsequently, the RO confirmed its denial of service connection for bilateral hearing loss and of an increased evaluation for service-connected otomycosis of the left ear. R. at 186-87.

In the December 6, 1995, BVA decision here on appeal, the Board, relying on the April 1991 and February 1995 VA examination reports, concluded that the veteran’s hearing loss was not incurred in or aggravated by service and thus denied service connection for bilateral hearing loss. R. at 6. The Board also concluded that the veteran had not submitted evidence of symptoms sufficient to meet the scheduler criteria for a compensable rating for otomycosis of the left ear and denied the rating-increase claim. R. at 12.

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Cite This Page — Counsel Stack

Bluebook (online)
11 Vet. App. 405, 1998 U.S. Vet. App. LEXIS 1063, 1998 WL 544909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-west-cavc-1998.