Citation Nr: 0814340 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-24 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a fractured nose, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Army from March 1946 to August 1947. The RO denied claims for entitlement to service connection for residuals of a fracture nose and hearing loss in decisions dated in March and April 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that new and material evidence was received to reopen the previously denied claims, and then denied entitlement to the benefits sought. While the May 2004 RO decision addressed these matters on a de novo basis, for purposes of establishing jurisdiction, the Board is required to make a decision in the first instance as to whether new and material evidence was received warranting the reopening of these matters. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir 1996). The Board has recharacterized the issues accordingly to reflect the procedural status of the previously denied claims. The veteran testified before the undersigned Veterans Law Judge at a personal hearing held at the RO in January 2008. During that hearing, the veteran moved for advancement on the docket due to his age. In an April 2008 decision, the undersigned granted that motion. The Board notes that in addition to the claim of service connection for residuals of a fractured nose, addressed here, the veteran has also raised claims of service connection for a sinus condition as secondary to the nose injury. This issue has not been clearly and independently addressed by the RO, and is therefore referred for appropriate action. FINDINGS OF FACT 1. Service connection for a fractured nose was denied by the RO in an unappealed March 1948 decision on the basis that there was no fracture or residual found. 2. Evidence received since the March 1948 denial of service connection for a fractured nose was not previously considered by agency decision makers, is neither cumulative nor redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. The veteran's disability involving a deviated septum is likely a residual of a fractured nose sustained during service. 4. Service connection for hearing loss was denied by the RO in an unappealed April 1948 decision on the basis that there was no current hearing loss disability. 5. Evidence received since the April 1948 denial of service connection for hearing loss was not previously considered by agency decision makers, is neither cumulative nor redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 6. The veteran credibly reports a left ear infection in service; there was no assertion or evidence of a right ear infection in service. 7. Findings show no perforation of either the left or right ear drums in service. 8. Currently diagnosed bilateral sensorineural hearing loss is not related to in-service left ear infection, nor is a diagnosis shown within the first post-service year. 9. Currently diagnosed right ear conductive hearing loss is not shown to be related to any injury or disease in service, nor was it first manifested during service. 10. There is no currently diagnosed left ear conductive hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a fractured nose. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. Service connection for residuals of a fractured nose, to include a deviated septum, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 3.304 (2007). 3. New and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. Service connection for hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the issue of entitlement to service connection for residuals of a fractured nose is being granted, and resolved in the veteran's favor, there is no need to discuss the impact of the duties to notify and assist as to that claim. With regard to the issue of entitlement to service connection for hearing loss, these duties have been satisfied, as explained herein. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA must additionally notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the initial notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The Board further notes that the veteran was provided notice of the assignment of an evaluation and effective date in March 2006 correspondence. Further, the Board notes that this is a reopened claim. The claims of service connection for hearing loss and a fractured nose were denied in March and April 1948 decisions. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to reopened claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. March 2004 correspondence to the veteran did properly inform him of the need for new and material evidence, and adequately defined what "new and material" is, but failed to inform the veteran of the basis for the prior denials. In light of the Board's finding that new and material evidence had been submitted, and the Board's decision to reopen the matters and consider the claims on the merits, any error in notifying the veteran as to factors involved in the decision to reopen is a harmless error. Although the veteran was not informed specifically of the basis for the prior denial, the VCAA duty to notify with regard to the underlying claims was satisfied by way of a letter sent to the appellant in March 2004 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA additionally has a duty to assist the veteran in the development of his claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained the veteran's service medical records. [The Board notes that there has been some confusion on the part of the veteran regarding his service treatment records. They were first obtained by VA from the service department in 1948, when the veteran filed his initial claim. They were apparently added to the claims file at that time. In preparing his reopened claim, the veteran contacted the National Personnel Records Center (NPRC), which informed him his records were in the section of the facility destroyed in a 1973 fire. He was not informed that VA associated his records with the claims file prior to that fire. Any understandable confusion on the part of the veteran by VA's subsequent references to these records is regrettable but does not impact the full and fair adjudication of his claims at this time.] The veteran submitted private medical records from Dr. RLD, Dr. HSF, Miracle Ear, and HHAC. The veteran also obtained and submitted a copy of a February 1947 Morning Report obtained as an alternate record when he thought his own file was destroyed in the 1973 NPRC fire. He was provided an opportunity to set forth his contentions during the January 2008 hearing before the undersigned Veterans Law Judge. The appellant was afforded VA medical examinations in April 2005. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Although the RO reopened the claims of service connection for a fractured nose and hearing loss in May 2004, the Board is required to first consider whether new and material evidence had been presented before the merits of claim can be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board can make an initial determination as to whether evidence is "new and material." See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The current claim was received in December 2003. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With regard to both claims, at the time of the 1948 denials the evidence of record consisted of the service medical records and a statement of the veteran describing his alleged injury. Additionally, Ft. Meade had certified that no records of treatment could be identified. At the time of the 1948 denials, the file contained no evidence of a current hearing loss disability and no evidence of a disability residual to a fractured nose. Since 1948, the veteran has submitted private treatment records showing current nasal and sinus disabilities as well as hearing loss and other ear disabilities. VA examination reports have been received which provide information on the current diagnoses and medical opinions as to the etiologies of current disabilities. Finally, the veteran offered testimony at a personal hearing before the undersigned in January 2008; he was able to present argument and clarify some evidence. The recent medical records are clearly new, in that they were not previously considered. Moreover, in establishing the presence of current disabilities and addressing the possibility of a relationship to service, the new evidence relates to unestablished facts and raises a reasonable possibility of substantiating the claims. The Board therefore agrees with the RO's May 2004 determination, finds that new and material evidence has been received, and concludes that the claims for entitlement to service connection for residuals of a fractured nose and hearing loss are reopened. Service Connection After finding that new and material evidence was received to reopen the previously denied claims, the Board must now consider the claims on their merits. The veteran alleges that while on active duty in 1946 and 1947, he sustained a broken nose and left ear infection which have resulted in current disabilities. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Importantly, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Residuals of a Fractured Nose At the time of his original 1947 claim, the veteran stated that he had broken his nose falling down stairs in his barracks at Ft. Meade, Maryland, in March 1946. Service medical records as well as clinical treatment records from Ft. Meade were requested in connection with the claim. Ft. Meade replied that there was no record of treatment of the veteran, and service medical records revealed no treatment for any injury to the nose. Both entrance and separation examinations noted the nose to be normal, and no history of fracture was reported. Service medical records do show that a replacement lens for eyeglasses was provided in April 1946. This is important as the veteran reported during his hearing that his glasses were broken in the same injury that fractured his nose. In December 2003, in his reopened claim for benefits, the veteran alleged that his nose had been broken by a "barracks bully" in a fight at Ft. Belvoir, Virginia. Service personnel records confirm that the veteran was at both Ft. Meade and Ft. Belvoir during the first few months of service. During a November 2006 hearing before a decision review officer (DRO) and the January 2008 Travel Board hearing, the veteran elaborated, stating that the beating was racially motivated. He is Hispanic, and he reported that an African- American soldier beat him up severely. He stated that his nose was broken and blood pooled under his eyes for a long time afterwards. Although he stated he was hospitalized or kept in the infirmary for two days following the beating, there is no indication in service medical records of any injury to the nose, as was noted above. The Board finds it pertinent that there is now some medical evidence indicating that the veteran likely suffered a broken nose at some point. During an April 2005 VA examination, the examiner noted a slight saddle deformity with septal deviation to the right, blocking approximately 60 percent of the nasal passage. The examiner stated that the obstruction and septal deformity is consistent with the trauma described by the veteran. The doctor in fact opined that current findings were at least as likely as not related to the trauma sustained in an assault in service. The issue therefore hinges upon the occurrence of a trauma in service. While there is a clear conflict in the veteran's 1948 and 2003 accounts of how the injury to the nose occurred, the fact of injury and the time frame has been consistent. The veteran appeared credible and sincere in his testimony before the undersigned. Moreover, although there is no clear treatment for a broken nose in service medical records, there was treatment to replace a lens in the veteran's glasses during the time period in question. This tends to support the assertion that there was some kind of trauma to the face. The Board also finds very persuasive the fact that the veteran initiated a claim with regard to residuals of this injury immediately upon discharge from service. The conflicts in the accounts, between an accidental fall and a racially motivated fight, could be the result of changing social norms and pressures. As the veteran stated during his Travel Board hearing, a fight would have been an embarrassment, and that may explain both why the event is not reported in records, and why the veteran initially reported it as resulting from a fall. The Board need not make a finding on that point, however. Resolving all reasonable doubt in favor of the veteran, the Board finds that the records created during service and at the time of discharge, and the veteran's prompt claim shortly after separation, in combination with current medical evidence of a past broken nose, and the veteran's credible testimony, all support a finding that the currently diagnosed deviated septum with obstruction is a residual of a fractured nose likely sustained during service. As was noted in the Introduction above, the veteran has raised the issue of service connection for a sinus condition as secondary to service connected residuals of a broken nose. The evidence of record is not sufficient to adjudicate this claim without possible prejudice to the veteran, and so it is referred to the RO for consideration and development, to include a VA examination. Hearing Loss The veteran has alleged that he contracted an ear infection in February or March 1947 while serving overseas in Guam as part of the occupation force, and that the infection has resulted in a hearing loss disability. While the record does reflect ample evidence of a current sensorineural hearing loss disability, bilaterally, with a conductive hearing loss component on the right, the preponderance of the medical evidence of record does not support a finding that hearing loss disability in either ear is related to service. The veteran's service medical records do not reveal any complaints or findings indicative of hearing loss. Hearing loss was not shown on the veteran's July 1947 examination prior to separation. At that time, the examiner identified the veteran's hearing ability as 15/15 bilaterally on the whispered voice test. In the box designated for ear, nose, and throat abnormalities, the examiner typed "NONE". While the veteran did submit a claim for disability benefits for hearing problems in 1948, shortly after separation from service, that claim was denied by the RO in an April 1948 decision finding that defective hearing claimed by the veteran was not shown by the evidence of record. In May 1948, a medical abstract was added to the record indicating that the ENT clinic noted mild retraction of the left eardrum. In a June 1948 rating sheet, the RO stated that the addition of this evidence did not change the April 1948 decision denying service connection for hearing loss. The basis for the denial appears to have been a lack of medical findings of a current hearing loss disability. Subsequently, the earliest medical evidence of record documenting a hearing loss disability is not until the 1970s. This lengthy period (more than 20 years) without documented treatment for hearing loss disability is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Private medical records submitted by the veteran reveal a measurable hearing loss as far back as 1971. At this point, Dr. RLD began treating the veteran for a perforation of the right ear drum and diagnosed a mild conductive hearing loss. Records from Dr. HSF from 1995 and 2005 show a progression of hearing loss, though they do not specify whether the loss is conductive or sensorineural. Similarly, audiometries from Miracle Ear and HHAC clearly demonstrate a current hearing loss disability, as do findings on April 2005 VA examinations. One VA examiner described the hearing loss as sensorineural, while another stated that there was a mild conductive component on the right. None of the private health care providers offered any medical opinion as to the relationship between the current hearing loss disability and the in-service infection reported by the veteran. The April 2005 VA examiner did opine that, based on the history reported by the veteran, the conductive component of current hearing loss disability was related to "the perforation he sustained historically in Guam...." The doctor specified that this opinion was "[b]y history alone". The Board reiterates that no perforated ear drum was documented during service and that the Court has held that a bare transcription in a medical record of the veteran's self- reported history, unenhanced by medical analysis, does not constitute competent medical evidence as is required to warrant service connection. LeShore v. Brown, 8 Vet. App. 405 (1995). Unfortunately, the evidence of record indicates that the stated basis (history reported by the veteran) for the VA examiner's April 2005 opinion is insufficient, as the veteran is not competent to provide a medical diagnosis of a perforated eardrum. As noted above, service medical records show that on examination for entry into and separation from active duty, the veteran's ears were physically normal. No perforation is noted or complained of in service records, and there is no treatment record indicating an infection of the left ear during service. The veteran has obtained a Daily Sick Report for February 1947 (while he was stationed on Guam) that shows he reported for sick call on one day. The report, by its nature, does not reflect what the treatment was for, or what treatment may have been administered. In his claim filed only seven months later, however, the veteran did refer to a left ear infection. At the time the RO did not discuss whether or not there was an ear infection during service, but denied the claim for lack of a current disability. The Board finds that the Daily Sick Report combined with the veteran's claim for benefits for a hearing disability shortly after separation are factors which clearly support the veteran's report of suffering left ear infection in service. That the veteran had a left ear infection during service does not, however, support a finding of an inservice left ear drum perforation. The normal physical findings on separation, as well as private medical records from Dr. HSF, reveal no damage to the left ear drum. Dr. HSF, in particular, specifically found a normal eardrum on the left in 1995. Although the veteran reported in April 1948 that a "local doctor" had told him his left eardrum was perforated secondary to infection, there is no record of such a finding at that time. To the contrary, the May 1948 medical abstract noted a slight retraction of the left eardrum and not a perforation. The weight of the medical evidence is against our finding today that the veteran likely had a perforated eardrum in 1947, when medical reports from 1948 did not do so. Regarding the left ear, the veteran has alleged that he contracted an ear and sinus infection in Guam, and that as a result of this infection, he sustained a perforated left ear drum. Supporting the veteran's claim is the April 2005 VA examiner's opinion (based on the veteran's reported history of a left ear drum perforation during service), that conductive hearing loss is secondary to the reported history of inservice perforation. While the Board finds that there is sufficient credible evidence of a left ear infection in service, there is no evidence showing a perforated left ear drum during service or at any time since. Even assuming arguendo that that a left eardrum perforation did occur during service, the April 2005 VA examiner's opinion restricted its scope to conductive hearing loss. As the veteran's current left ear hearing loss disability is sensorineural in nature and not conductive, and the April 2005 examiner went on to specifically opine that sensorineural loss is not likely related to active duty, service connection for left ear hearing loss must be denied. On analysis of the claim for service connection for right ear hearing loss, we find the reverse situation. While the veteran does have a conductive component to his right ear hearing loss, and there is evidence that the veteran sustained a perforation on the right at some point, there is absolutely no evidence showing that the right eardrum perforation occurred during service. The veteran has made no allegation that he had an in-service infection of the right ear, and service medical records are, as noted, silent on the issue. While a February 1947 Daily Sick Report noted that the veteran was on sick call for one day, the report did not specify the reason for sick call, and the veteran has specifically indicated that the reason had to do with a left ear problem, not a right ear problem. In the absence of an assertion by the veteran that he had right ear problems during service, the Daily Sick Report submitted by the veteran can be of no support. Additionally, the 1948 medical abstract specifically identified left ear problems and not problems on the right. There is simply no evidence to support a finding of an in-service right ear infection or right eardrum perforation. The lack of any objective findings regarding the right ear in service medical records and in the 1948 medical abstract, and the lack of any assertion of an inservice right ear infection in the veteran's own statements, leave no basis upon which to find that the veteran had a right ear problem, much less a right ear perforation, during service. To the contrary, the objective evidence supports a finding that the right ear drum perforation did not occur until many years after service. During the April 2005 VA examination, the veteran stated the right ear perforation was diagnosed in 1960. Private treatment records from Dr. RLD show it to have existed at least as early as 1971; he performed a tympanoplasty to repair the ear drum in 1972. A clear understanding of the diseases and injuries of each ear is important to the further discussion of the claim for service connection for hearing loss. The veteran has been diagnosed with two types of hearing loss, conductive and sensorineural. With regard to conductive hearing loss, which is generally caused by physical damage to the structures of the ear, only the right ear carries that diagnosis. Both Dr. RLD and a VA examiner have opined that the right ear conductive hearing loss is related to a perforation of the ear drum. Dr. HSF also indicated that an impact on hearing was likely from the thickened right ear drum. As was discussed above, however, there is no evidence of any in-service trauma to the right ear, and weight of the medical evidence of record supports a finding that the perforated right ear drum did not occur until well after the veteran's period of active duty service. While the veteran's right ear hearing loss has a conductive component that may very well be related to a perforated right eardrum, a right eardrum perforation is not shown to be related to any event or disease in service. The resulting right ear conductive hearing loss, therefore, cannot be service connected as there is no medical basis to support such a conclusion. No doctor has opined that there is a positive relationship between currently diagnosed bilateral sensorineural hearing loss and infection during service. While private doctors have not even addressed the issue, a VA examiner expressly stated that a relationship was not likely. Specifically, on examination in April 2005, the VA examiner stated the following: "The bulk of his sensory neural loss is not as likely as not related to anything that occurred while he was on active duty." Without medical evidence linking the condition to service, the veteran's bilateral sensorineural hearing loss cannot be directly service connected. Consideration has also been given to the applicability of presumptive service connection for bilateral sensorineural hearing loss, as it is considered an organic disease of the nervous system and is therefore a presumptive chronic disease under 38 C.F.R. § 3.309(a). The presumption requires, however, that the disease become manifest to a degree of 10 percent or more within one year of separation from service. Here, the first medical evidence of a hearing loss disability for VA purposes is in November 1971, upon testing by Dr. RLD showing puretone thresholds in excess of 40 decibels at 4000 Hz.. Even without considering whether the loss is compensable, this first manifestation is well past the first post service year. Presumptive service connection for bilateral sensorineural hearing loss must be denied. For the above noted reasons, the veteran's claim for service connection for hearing loss must be denied. ORDER New and material evidence having been submitted, a claim of service connection for a fractured nose is reopened. Service connection for residuals of a fractured nose, to include a deviated septum, is granted. New and material evidence having been submitted, a claim of service connection for hearing loss is reopened. Service connection for hearing loss is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs