Citation Nr: 0006335	
Decision Date: 03/09/00    Archive Date: 03/17/00

DOCKET NO.  97-31 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for 
hearing loss.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Michael A. Holincheck, Associate Counsel






INTRODUCTION

The veteran served on active duty from December 1953 to 
December 1973.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 1997 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee.

At the veteran's January 2000 hearing he testified concerning 
his entitlement to service connection for heart disease, and 
submitted documentary evidence pertaining thereto.  This 
issue, however, while pending since an October 1997 
application, and a December 1997 response to a letter from 
the RO, is not currently developed or certified for appellate 
review.  Accordingly, it is referred to the RO for 
appropriate consideration.  The Board takes this opportunity 
to note that it may only exercise jurisdiction over an issue 
after an appellant has filed both a timely notice of 
disagreement to a rating decision denying the benefit sought, 
and a timely substantive appeal.  38 U.S.C.A. § 7105 (West 
1991); Roy v. Brown, 5 Vet. App. 554 (1993).


FINDINGS OF FACT

1.  Service connection for hearing loss was denied by an 
unappealed final RO decision in August 1974.  The August 1974 
rating decision is the last final denial on any basis.  

2.  Evidence received since the August 1974 RO decision, when 
considered alone or in conjunction with all of the evidence 
of record, is not so significant that it must be considered 
in order to fairly decide the merits of the claim.




CONCLUSION OF LAW

Evidence received since the August 1974 final RO decision is 
not new and material; the veteran's claim may not be 
reopened.  38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. 
§ 3.156(a) (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran served on active duty from December 1953 to 
December 1973 when he retired due to years of service.  His 
primary military occupational specialty (MOS) was target 
aircraft crewman.  At his August 1953 entrance examination a 
right ear hearing loss was detected.  It was noted that he 
had had mastoiditis two years earlier with a right ear 
hearing loss.  Audiological studies at that time revealed 
pure tone thresholds, in decibels, as follows (converted to 
ISO units)




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
35
X
25
LEFT
25
20
20
X
5

The veteran was treated for complaints of ear pain and 
hearing loss in April and May 1954.  He underwent a 
tonsillectomy and was returned to duty.  An audiological 
evaluation at that time revealed pure tone thresholds, in 
decibels, as follows (converted to ISO units):




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
20
X
10
LEFT
20
15
15
X
10

In April 1965 he was given a permanent profile to avoid loud 
noises due to complaints of hearing loss in the left ear.  An 
August 1965 ear, nose, and throat (ENT) consultation noted a 
complaint of progressively worse bilateral hearing loss.  The 
veteran was advised to avoid acoustic trauma.  

An ENT consultation, done as part of his August 1973 
retirement physical examination, diagnosed bilateral 
otomycosis and allergic rhinitis by history.  The retirement 
physical examination also noted a bilateral hearing loss and 
referred to treatment for bilateral mastoiditis in 1954.  An 
audiological evaluation at that time revealed pure tone 
thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
X
35
LEFT
15
15
45
X
80

The veteran filed a claim in April 1974 to establish service 
connection for his hearing loss.  Thereafter, in June 1974, 
he was afforded a VA examination during which he was 
diagnosed with high frequency hearing loss secondary to 
acoustic trauma.  The audiological evaluation showed pure 
tone thresholds, in decibels, as follows:




HERTZ 
(Air 
Conductio
n)



500
1000
2000
3000
4000
RIGHT
5
10
10
X
25
LEFT
0
5
35
X
70




HERTZ
(Bone 
conducti
on)



500
1000
2000
3000
4000
RIGHT
15 
5
15
X
20
LEFT
10
5
25
X
25

He was denied service connection in August 1974 and notified 
of that action in September 1974.  The veteran failed to 
perfect an appeal of that decision.  Therefore, the August 
1974 decision is final.  38 U.S.C.A. § 7105 (West 1991).  
Accordingly, the veteran's claim may only be reopened and 
considered on the merits if new and material evidence has 
been submitted.  See 38 U.S.C.A. § 5108; 38 C.F.R. 
§ 3.156(a).

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).

New and material evidence must be presented or secured since 
the time that the claim was finally disallowed on any basis.  
Evidence presented since the last final disallowance need not 
be probative of all elements required to award the claim, but 
need be probative only as to each element that was a 
specified basis for the last disallowance.  

The United States Court of Appeals for Veterans Claims 
(Court) has held that VA must first determine whether the 
veteran has presented new and material evidence under 
38 C.F.R. § 3.156(a) in order to have a finally denied claim 
reopened under 38 U.S.C.A. § 5108.  Elkins v. West, 12 Vet. 
App. 209, 219 (1999).  If new and material evidence has been 
presented, immediately upon reopening the claim VA must 
determine whether, based upon all the evidence of record in 
support of the claim is well grounded pursuant to 38 U.S.C.A. 
§ 5107(a).  If the claim is well grounded, VA may then 
proceed to evaluate the merits of the claim but only after 
ensuring that his duty to assist under 38 U.S.C.A. § 5107(b) 
has been filled.  Id.

Evidence of record at the time of the RO's August 1974 denial 
consisted of:  the veteran's SMRs; and, a VA examination 
report dated in June 1974.  Based on this evidence, the RO 
denied the veteran's claim on the basis that his hearing loss 
was due to mastoiditis that preexisted service with no 
evidence of inservice aggravation.

In December 1996, the veteran filed to reopen his claim for 
service connection for hearing loss.  The Board notes that 
since the RO's August 1974 decision, the evidence added to 
the file includes:  (1) treatment records from Ft. Ritchie, 
MD, for the periods from 1990 to 1992; (2) a statement from 
Max A. Harned, dated in May 1992; (3) VA examination report, 
with photographs and slides, dated in February 1993; (4) 
private treatment records from Jackson Madison Hospital, 
dated in July 1994; (5) private treatment records from Henry 
County Hospital, dated in July 1994; (6) VA outpatient 
treatment records, dated from 1989 to 1996; and (7) 
transcripts of hearings, dated in July 1992 and January 2000.

Significantly, however, after carefully considering the 
evidence submitted since the last final RO decision, in light 
of evidence previously available, the Board is compelled to 
find that the veteran has not submitted evidence which is new 
and material.

All of the evidence cited above is new to the record.  The 
treatment records, however, both private and VA, do not refer 
to the issue on appeal.  The statement from Dr. Harned, 
similarly does not address the veteran's hearing loss, and 
the veteran did not present any testimony pertinent to the 
issue on appeal at his July 1992 hearing.  The February 1993 
VA examination was for conditions unrelated to the veteran's 
current claim.  Accordingly, this evidence, while new to the 
record, is not material.

The veteran testified at a Travel Board hearing before the 
undersigned Member in January 2000, and he detailed his 
exposure to acoustic trauma in service as a result of his 
duties involving target and surveillance aircraft, especially 
involving engine repairs, and his being around loud anti-
aircraft fire.  He also testified regarding his participation 
with the All Army Rifle Team.  The veteran also described his 
post-service employment as being a much quieter noise 
environment than during his inservice noise environment.  He 
did not provide testimony relative to the issue of a medical 
opinion that would relate any current symptomatology to an 
aggravation of his preexisting hearing loss.  

The veteran has alleged that he incurred a hearing loss in 
service.  However, as a lay person the veteran is not 
competent to proffer the necessary medical evidence of 
current disability or nexus evidence showing a link between 
any current claimed disorder and service.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 495 (1992).  Accordingly, the 
veteran's testimony, by itself, or when considered in 
conjunction with the other evidence of record, is not so 
significant that it must be considered in order to fairly 
decide the merits of the claim.

Accordingly, because neither the testimonial nor the 
documentary evidence submitted since 1974 is new and material 
the benefit sought on appeal must be denied.

In reaching this decision the Board views its discussion as 
sufficient to inform the veteran of the elements necessary to 
reopen his claim.  See Graves v. Brown, 9 Vet. App. 172, 173 
(1996).  In this regard, the discussion above informs the 
veteran of the steps he needs to fulfill in order to reopen 
his claim, that is, evidence to show either that his hearing 
loss did not preexist service, or that it was aggravated by 
service, and an explanation why his current attempt to reopen 
the claim must fail.


ORDER

New and material evidence not having been submitted to reopen 
a claim for service connection for hearing loss, the appeal 
is denied.



		
	DEREK R. BROWN
	Member, Board of Veterans' Appeals