JOSEPH A.  BANKOWSKI,  APPELLANT, v. EDWARD J. DERWINSKI, 

                    SECRETARY OF VETERANS AFFAIRS, APPELLEE 

                                   No. 89-176 

                    UNITED STATES COURT OF VETERANS APPEALS 

                  1990 U.S. Vet. App. LEXIS 15; 1 Vet. App. 36 

                            July 26, 1990, Argued    

                            October 1, 1990, Decided 

NOTICE:  PURSUANT TO 38 U.S.C. § 4067(d)(2) (1988), THIS DECISION WILL 

BECOME THE DECISION OF THE COURT THIRTY DAYS FROM THE DATE HEREOF. 

PRIOR HISTORY:   

On Appeal from the Board of Veterans' Appeals. 

COUNSEL: Rick Surratt, (non-attorney practitioner) and Ronald L. Smith were on 

the brief for appellant. 

   Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General Counsel, 

Pamela L. Wood, Deputy Assistant General Counsel, and Craig M. Kabatchnick were 

on the brief for appellee. 

JUDGES: Kramer, Associate Judge. 

OPINIONBY: KRAMER 

OPINION: Summary of Decision 

   The Board of Veterans' Appeals (BVA) determined that the appellant's hearing 

loss was not service connected.  Appellant appealed.  The Court affirms the 

decision of the BVA. 

     History 

   Appellant, Joseph A. Bankowski, served in the United States Marine Corps 

between June 26, 1946, and June 25, 1948.  The appellant asserts that during his 

service he incurred a left ear injury and that, therefore, his subsequent 

hearing loss should be service connected. 

   Unfortunately, the appellant's claims file was lost by the Veterans' 

Administration (VA) (now the Department of Veterans Affairs).  While the VA did 

rebuild the file, it contains none of the veteran's service medical 

records.  The appellant's first documented hearing loss was recorded August 28, 

1974, in a report of an audiological examination from the State of Pennsylvania, 

Department of Labor and Industry, Bureau of Vocational Rehabilitation.  This 

report indicated a significant hearing loss in both ears, with the left ear 

being somewhat worse than the right, as well as moderate difficulty in speech 

discrimination.  Another audiological examination from an unnamed source was 

performed on April 29, 1988.  It, too, indicated a hearing loss in both ears 

with a more severe loss in the left ear.  The record also contains 1988 and 1989 

statements from the appellant and a former service colleague indicating that 

the appellant was injured during his military service in Guantanamo Bay, Cuba, 

while being transported to a guard post in a military vehicle which overturned 

and caused a machine gun to strike his head behind his left ear. 

   By way of what appears in the record to be a reopened claim, dated August 9, 

1988, appellant requested service connection for ear, neck, and buttock 

injuries.  Although service connection was denied for all conditions, appellant 

filed a Notice of Disagreement with the Philadelphia, Pennsylvania, 

Regional Office of the VA only with respect to the left ear injury.  A BVA 

decision was rendered September 7, 1989, in which service connection was denied. 

Appellant appealed to the Court. 

Analysis 

   There is no dispute as to the fact that the veteran has a substantial hearing 

loss in his left ear.  The only issue is whether such loss is service connected 

pursuant to 38 U.S.C. § 331 (1989) which states in relevant part: 

   For disability resulting from personal injury suffered . . . in line of duty 

. . . the United States will pay . . . compensation . . . . 

   This statutory provision is discussed at 38 C.F.R. § 3.303(a) (1989) which 

states: 

   Service connection connotes many factors but basically it means that the 

facts, shown by evidence, establish that a particular injury . . . resulting in 

disability was incurred coincident with service in the Armed Forces . . . . 

   Appellant argues that the evidence that he presented was unrebutted and thus 

he should prevail.  However, even assuming the credibility of all of his 

evidence, there is no evidence in the record to indicate that the appellant's 

in-service injury to his left ear resulted in, as required by the above 

quoted statute and regulation, his subsequent hearing loss. The hearing loss was 

first documented in 1974, more than a quarter of a century after the 

service-connected injury.  In addition, the 1988 and 1989 statements of 

appellant and his service colleague show only that injury occurred.  Thus, the 

Court finds no basis for disagreeing with the BVA conclusion that "we do not 

find it reasonable to associate chronic disability with an ear injury in 

service".  Joseph A. Bankowski, loc. no. C17217124, at 4 (BVA Sept. 1989). 

   The Court determines that this case is one which is appropriate for summary 

disposition.  In Frankel v. Derwinski, U.S. Vet. App. No. 89-167, slip op. at 4 

(Aug. 17, 1990), the Court set forth the test for summary disposition: 

   If, after due consideration, the Court determines that the case on appeal is 

of relative simplicity and 

   1.  does not establish a new rule of law; 

   2.  does not alter, modify, criticize, or clarify an existing rule of law; 

   3.  does not apply an established rule of law to a novel fact situation; 

   4.  does not constitute the only recent, binding precedent on a particular 

point of law within the power of the Court to decide; 

   5.  does not involve a legal issue of continuing public interest; and 

   6.  the outcome is not reasonably debatable. 

In the instant case, the Frankel test has been met. 

Conclusion 

   For the reasons stated above, pursuant to 38 U.S.C. § § 4052(a) and 4061 

(1988), the decision of the BVA is summarily affirmed.