BVA9504418 DOCKET NO. 92-11 718 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from April 1942 to October 1945. This case was previously before the Board of Veterans' Appeals (Board) and remanded to the regional office (RO) in April 1994. At that time, the issues before the Board included entitlement to service connection for a right knee and right leg disorder, as secondary to the veteran's service-connected residuals of a shell fragment wound of the right hip. While the case was in remand status, service connection for a right knee and right leg disorder, characterized as sciatic nerve injury, was granted by the RO. Therefore, an issue of service connection for a right knee and right leg disorder is no longer before the Board. In a decision dated in November 1967, the Board denied service connection for a left ear hearing loss. Statements received from the veteran indicate that he may also be seeking service connection for a right ear hearing loss. The only issue concerning a hearing loss that is currently before the Board is whether new and material evidence has been submitted to reopen a claim for service connection for left ear hearing loss. The issue of service connection for a right ear hearing loss is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that he has submitted new and material evidence to reopen the claims of entitlement to service connection for arthritis and a left ear hearing loss. The veteran maintains that his present day arthritis began in service and resulted from exposure to severe weather conditions during his period of service. He maintains that service connection is warranted for arthritis. The veteran also contends that his left ear hearing loss arose in service as a result of exposure to acoustic trauma resulting from artillery fire. 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 evidence presented by the appellant with regard to his claims for service connection for arthritis and a left ear hearing loss is not new and material. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained insofar as possible. 2. Service connection for arthritis was denied by the Board in a November 1967 decision. 3. Service connection for defective hearing of the left ear was denied in a November 1967 Board decision. 4. Additional evidence received since November 1967 with regard to a left ear hearing loss is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create the reasonable possibility that the outcome of the previous denial of service connection for a left ear hearing loss would change. 5. Additional evidence received since November 1967 with regard to arthritis is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create the reasonable possibility that the outcome of the previous denial of service connection for arthritis would change. CONCLUSIONS OF LAW 1. Evidence received since the Board's November 1967 decision denying entitlement to service connection for arthritis is not new and material; the veteran's claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991).; 38 C.F.R. § 3.156 (1994). 2. Evidence received since the Board's November 1967 decision denying entitlement to service connection for a left ear hearing loss is not new and material; the veteran's claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has submitted claims which are plausible. We are also satisfied that all relevant facts have been properly developed and that the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991) has been met. I. New and Material Evidence Service connection may be established for 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. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). If the disorder is a chronic disease, such as sensorineural hearing loss and arthritis, service connection may be granted if manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). When a claim is disallowed by the Board, it may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104 West 1991). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). II. Arthritis The aforementioned November 1967 Board decision denied service connection for arthritis. The evidence of record when the Board considered the veteran's case in November 1967 included the veteran's service induction examination, which indicated no physical defects, and his report of examination prior to service discharge, which reported no musculoskeletal defects and no reports of arthritic pain at the time of the examination. Also of record was a statement from [redacted] indicating that she had known the veteran since 1928 and noticed that upon his return from overseas he complained of aching joints like arthritis in bad weather. A statement from [redacted], noted that she noticed the veteran having difficulty walking after sitting for a while and that there seemed to be stiffness in the hips, spine and shoulder beginning in 1952. A June 1966 statement by [redacted] reported that he had known the veteran for approximately seven years and during that time he had been afflicted with a back condition that was both painful and aggravating. A June 1966 statement from [redacted] also indicated that she had known the veteran for seven years and that over this time period he suffered more and more with his back and neck, which would be more severe in cold damp weather. Medical evidence available at the time of the decision included a report of the veteran's private physician, C. L. Baummgardener, M.D., which indicated that he had treated the veteran for right and left shoulder arthritis as well as arthritis of the neck and fingers in 1962 and 1966. Also of record was the June 1966 Department of Veterans Affairs (hereinafter, VA) examination, which had rendered diagnoses of arthritis of the entire spine, arthritis of the shoulders and hands, and a history of arthralgia of the joints of the lower extremities. X-ray examination of the cervical spine revealed slight hypertrophic changes of the bodies of the 5th and 6th cervical vertebrae with normal interspaces, while x-rays of the lumbosacral spine revealed slight hypertrophic changes of the bodies of the lower dorsal vertebrae and of the 3rd, 4th and 5th vertebrae, with normal interspaces. Slight hypertrophic changes of the acromioclavicular joint with a large spur extending from the inferior lip of the glenoid fossa were also noted. Slight hypertrophic changes of the right hand were also reported, while the bone and the joint space of the right knee were within normal limits. In August 1966, the veteran also sent a three page letter to the RO indicating how he believed his problems began in service. A June 1967 letter from the veteran's private physician, Ralph McGraw, M.D., certified that he had treated the veteran in February and March 1946 for arthritis of the right shoulder and back and occasionally treated him thereafter until 1954. At his personal hearing in March 1967, the veteran testified that the first indication of trouble began when he started to have colds and stiff joints in Iceland. He indicated that he had been given medication for his pains and was again treated for aches, pains, and colds in France. He also testified that following service he had persistent colds and joint pains. He further testified that the first finding of arthritis was made by Dr. McMahon in 1945, which the veteran indicated was confirmed by x-ray taken at the Ohio Valley Hospital in Wheeling, West Virginia. Also available for review was a letter received from the Ohio Valley Hospital Radiology Department in May 1967, which indicated that there was no record of the veteran having had x-rays taken during 1945. In reaching its decision, the Board indicated that it had considered all the lay statements of various individuals, as well as the 1967 statement of Dr. McGraw which indicated that he remembered sporadically treating the veteran for mild arthritis from 1946 to 1955. The Board further noted that the veteran's service records showed that he had had vigorous duty by serving in Iceland as well as in five campaigns in Europe. The Board also indicated that while the veteran reported having received treatment in service, those records were not available; however, the discharge examination did not reveal any symptoms of arthritis. The Board found that arthritis of the spine, shoulders, and hands was not clinically demonstrated until June 1966, and was not causally related to the veteran's experiences during service. Evidence received subsequent to the 1967 Board decision includes a certificate indicating that the veteran received the Purple Heart in July 1988 for wounds received in France in 1944, a photocopy of the veteran's service separation medical examination, an October 1990 VA outpatient treatment record indicating the veteran has degenerative joint disease of the right hip, a December 1991 personal hearing wherein the veteran again testified as to his belief that his arthritis started in service, January 1992 VA examination x-rays indicating the veteran has moderate osteoarthritic changes in both hips as well as subchondryl sclerosis, and numerous letters from the veteran indicating his belief as to the etiology of his disorder as well as the history of duties performed while in service. The photocopy of the veteran's service separation medical examination is duplicative of information known to the Board at the time of its November 1967 decision. The information supplied by the veteran at the time of his December 1991 personal hearing and through his numerous letters provide a history of his service as well as his beliefs as to the etiology of his arthritis. This information is cumulative of information known to the Board at the time of its November 1967 decision. While the October 1990 VA outpatient treatment record and the January 1992 VA examination both reported findings of arthritis in both hips, neither of these records is contemporaneous with service nor do they make reference to or relate the veteran's present arthritis of the hips to his period of service. While the Board notes that the veteran was awarded the Purple Heart in July 1988 for wounds received in France in July 1944, this information, while new, does not create a reasonable possibility that the outcome of the previous denial would change. In sum, the evidence received since the November 1967 Board decision with regard to arthritis, is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create a reasonable possibility that the outcome of the previous denial of service connection for arthritis would change. New and material evidence has not been submitted to reopen the claim. III. Left Ear Hearing Loss The aforementioned November 1967 Board decision denied service connection for a left ear hearing loss. The evidence of record when the Board considered the veteran's case in November 1967, included the veteran's service induction examination, which indicated normal auditory acuity and a normal ear examination, and his report of examination prior to service discharge, which noted that his ears were normal and that his hearing was 15/15, bilaterally. Also of record were the results of a June 1966 VA audiological examination which reported ASA decibel level readings of 0, 0, 5, 0, 15, and in the right ear and 15, 15, 25, 50, and 100 in the left ear at Hertz levels of 250, 500, 1000, 2000, and 4000, respectively. A diagnosis of deafness, bilateral, conductive type; right ear, mild mixed type; left ear, mild; with a possible background of otosclerosis in both ears, was rendered at that time. At his March 1967 personal hearing, the veteran testified that his hearing problems began after being exposed to enemy shellings while in France. An April 1967 statement from Michael Ellis, a service associate, indicated that the veteran complained of ringing in his ears and of a severe headache in August 1944, after an enemy shell had fallen nearby. He also indicated that the veteran received treatment after the incident and thereafter reported severe headaches. In reaching its decision, the Board noted that the veteran had normal auditory acuity at the time of service separation and that he was not subjected to any trauma which left any disability. The Board found that defective hearing was first found on an examination in 1966 and was not causally related to the veteran's experiences during service. Evidence associated with the claims file subsequent the Board's November 1967 decision includes a June 1991 private audiological evaluation reporting decibel level readings of 20, 10, 10, 20, 40, 45, and 25 in the right ear and 35, 20, 40, 70, 95, and 100 in the left ear at Hertz levels of 250, 500, 1000, 2000, 400, and 8000, respectively, a November 1991 private opinion noting that the veteran presently has a unilateral asymmetrical sensorineural hearing loss and is in need of amplification on the left side, the veteran's testimony at his December 1991 personal hearing that his hearing problems arose from exposure to enemy shell fire while in service, and numerous letters from the veteran indicating his belief as to the etiology of his present hearing loss. The July 1991 private audiological evaluation results are cumulative in nature in that the veteran was known to have had a left ear hearing loss at the time of the November 1967 Board decision. While the November 1991 diagnosis of a unilateral sensorineural hearing loss, in need of amplification on the left side, is new in that a sensorineural hearing loss had not specifically been diagnosed previously, this diagnosis is not contemporaneous with service nor does it make reference to or relate the veteran's present left ear hearing loss back to his period of service. At his December 1991 personal hearing, the veteran testified as to having been exposed to a shell blast while in France, which he indicated had knocked him off his feet. He further testified that the deafness had remained in his ear since the incident. The veteran further indicated that he was diagnosed as having a hearing loss in 1966. The letters provided by the veteran also related his hearing loss to the shell blast incident. The evidence provided by the veteran through his personal testimony and by way of letters is cumulative in nature in that it was known by the Board the time of the November 1967 decision. In sum, the evidence received since the November 1967 Board decision with regard to a left ear hearing loss is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create a reasonable possibility that the outcome of the previous denial of service connection for a left ear hearing loss would change. New and material evidence has not been submitted to reopen the claim. ORDER New and material evidence not having been submitted to reopen claims of service connection for arthritis and a left ear hearing loss, the benefits sought on appeal are denied. WILLIAM J. REDDY 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.