BVA9506068 DOCKET NO. 93-12 140 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for benign prostatic hypertrophy. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis. 3. Entitlement to service connection for hearing loss. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: Jose P. Danga INTRODUCTION The veteran had active service from November 1941 to September 1942, and from August 1945 to October 1945. He was a prisoner of war (POW) from April 10, 1942 to September 25, 1942. This appeal is taken from a Regional Office (RO) determination in July 1992 which found new and material evidence had not been received to reopen claims of entitlement to service connection for benign prostatic hypertrophy, arthritis, and an eye disability, and which denied entitlement to service connection for hearing loss. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that the each of the disabilities at issue was incurred in service, to include as a result of the veteran's POW experience, and that new and material evidence has been received to reopen prior final denials. 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(s). 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 preponderance of the evidence is against the claim for service connection for hearing loss, and that new and material evidence has not been received to reopen claims for entitlement to service connection for benign prostatic hypertrophy, arthritis, or an eye disability. FINDINGS OF FACT 1. An unappealed RO determination in October 1987 denied a reopened claim for entitlement to service connection for arthritis. 2. The additional evidence received subsequent to the October 1987 RO denial of a reopened claim for service connection for arthritis does not raise a reasonable possibility of allowance of the claim. 3. An unappealed RO determination in October 1987 denied entitlement to service connection for benign prostatic hypertrophy, and an eye disability, to include cataracts and myopic astigmatism. 4. The additional evidence received subsequent to the October 1987 RO denial of service connection for benign prostatic hypertrophy, and an eye disability, to include cataracts and myopic astigmatism, does not raise a reasonable possibility of allowance of the claim. 5. Hearing loss was initially demonstrated years after service, and has not been shown to be related to service. CONCLUSIONS OF LAW 1. The unappealed October 1987 RO denial of service connection for arthritis is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C.A. § § 5108, 7104 (West 1991); 38 C.F.R. § § 3.104, 3.156 (1994). 2. The unappealed October 1987 RO denial of service connection for benign prostatic hypertrophy is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C.A. § § 5108, 7104 (West 1991); 38 C.F.R. § § 3.104, 3.156 (1994). 3. The unappealed October 1987 RO denial of service connection for an eye disability, to include cataracts and myopic astigmatism, is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C.A. § § 5108, 7104 (West 1991); 38 C.F.R. § § 3.104, 3.156 (1994). 4. Hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred. 38 U.S.C.A. § § 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. § § 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. NEW AND MATERIAL EVIDENCE According to the Court, the well-groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet.App. 134 (1994). Service connection for arthritis, benign prostatic hypertrophy, and an eye disability, to include cataracts and myopic astigmatism, was denied by a RO decision dated in October 1987. That determination was based on the evidence then of record, to include a report of examination for separation from service, conducted in August 1945, and reports of postservice examinations conducted in October 1968, November 1970, and June 1971, and a POW protocol examination performed in August 1987. The veteran's service medical records consist only of a report of his examination for separation from service, conducted in August 1945. This report does not show the presence of a prostate disorder, or complaints pertaining to any such problem. Indeed, although the veteran underwent post-service examinations in October 1968, November 1970, and June 1971, there is no post- service clinical demonstration or complaints of a prostate disorder until a POW protocol examination in August 1987. This disability had not been clinically related to service. In the absence of continuity of demonstration of symptomatology, and considering the negative examinations in October 1968, June 1971 and November 1970, the RO denied service connection for benign prostatic hypertrophy in October 1987. That determination was supported by the evidence then of record. Similarly, the report of examination for separation from service, conducted in August 1945, does not show the presence of arthritis, or complaints pertaining to any such problems. Indeed, although the veteran underwent post-service examinations in October 1968 and November 1970, there is no post-service clinical demonstration or complaints of such disorder until examination in June 1971 when hypertrophic arthritis of both knees was diagnosed following physical examination. Subsequently, on VA POW protocol examination in August 1987, degenerative arthritis of the lumbar spine, osteoarthritis of both hips, and hypertrophic degenerative disease of both knees, were demonstrated by X-ray examination. Significantly, the disabilities were not clinically related to service. In the absence of continuity of demonstration of symptomatology, and considering the negative examinations in October 1968 and November 1970, the RO denied entitlement to service connection for arthritis in October 1987. That determination was supported by the evidence then of record. The veteran's service medical records reveal that examination for separation from service, conducted in August 1945, revealed impaired left eye vision. Myopic astigmatism and cataracts were diagnosed on VA POW protocol examination in August 1987. Myopia and astigmatism are refractive errors which are not diseases within the meaning of applicable legislation providing for compensation benefits. 38 C.F.R. § 3.303(c). The cataracts, initially demonstrated years after service, were not clinically shown to be related to service. In the absence of continuity of demonstration of symptomatology, and considering the negative examinations in October 1968, and November 1970, the RO denied entitlement to service connection for an eye disability, to include cataracts and myopic astigmatism, in October 1987. That determination was supported by the evidence then of record. The veteran did not appeal the October 1987 RO denials. As indicated above, the veteran contends that the evidence received subsequent to the October 1987 RO determination, by which service connection for arthritis, benign prostatic hypertrophy, and an eye disability, to include cataracts and myopic astigmatism, was denied, is new and material, and serves to reopen his claims therefor. After a review of that evidence, considered in conjunction with the evidence that had been of record as of October 1987, the Board finds that new and material evidence has not been received, and that his claims have not been reopened. The United States Court of Veterans Appeals (Court) has held that, in determining whether evidence is new and material, the Board is to consider all evidence that has been received since the last final denial on the merits of a claim. See Glynn v. Brown, 6 Vet.App. 523 (1994). In the case at hand, the most recent final denial of the veteran's claims for service connection for arthritis, benign prostatic hypertrophy, and an eye disability, to include cataracts and myopic astigmatism, was by a RO determination in October 1987. A RO decision in November 1987 was not a decision "on the merits," but rather only a determination, in essence, as to whether new and material evidence had been received to reopen a claim. Accordingly, the question currently before the Board is whether new and material evidence has been received subsequent to October 1987. Unappealed RO decisions are final, and may be reopened only upon the receipt of additional evidence which, under the applicable statutory and regulatory provisions, is both new and material. "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative; that is, it raises a reasonable possibility of allowance of the claim when viewed in conjunction with the record as a whole. The only relevant evidence received subsequent to the October 1987 RO denial, is a private physician's statement dated in July 1992. In that statement the private physician reported current treatment for rheumatoid arthritis of the upper extremities, an enlarged prostate gland most likely secondary to benign prostatic hypertrophy, and error of refraction of both eyes. The treating physician did not relate any of the disabilities to service. Diagnoses of benign prostatic hypertrophy and refractive error of both eyes were of record and considered in the October 1987 RO denial. There is no provision for presumptive service connection of rheumatoid arthritis initially demonstrated years after service. Inasmuch as this additional evidence does not relate to whether any of the disabilities are etiologically related to service, they do not raise a reasonable possibility of allowance of a claim for service connection for any such disability. As such, the additional evidence, considered in conjunction with the evidence of record as a whole, may not be said to be new and material so as to warrant reopening of a claim for service connection for arthritis, benign prostatic hypertrophy, or an eye disability, to include cataracts and myopic astigmatism. II. HEARING LOSS The veteran's claim for service connection for hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. Although the veteran's representative has requested that the case be Remanded for additional development of the evidence, there has been no identification of additional documents for review. Hence, the Board finds that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection may be granted for disability incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a), (b), (c) and (d). Additionally, service connection may be established for sensorineural hearing loss demonstrated to a compensable degree at any time after separation from service. 38 U.S.C.A. § § 1101, 1112, 1113, 1131; 38 C.F.R. § § 3.307, 3.309. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 25 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed.Reg. 60560 (1994)(to be codified at 38 C.F.R. § 3.385). The report of the veteran's examination for separation from service, conducted in August 1945, does not show the presence of hearing problems, or complaints pertaining to any such problems. Indeed, physical examination of the ears, at that time was reported to be normal, and testing revealed the veteran had 20/20 hearing in each ear. Indeed, although the veteran underwent post-service examinations in October 1968, November 1970, June 1971 and a POW protocol examination in August 1987, there is no post-service clinical demonstration or complaints of such disorder until receipt of a private physician's statement, dated in July 1992, which reported current treatment thereof. Significantly, this disability has not been clinically related to service, to include by the veteran's current treating physician. In the absence of continuity of demonstration of symptomatology, and considering the negative examinations in October 1968, November 1970, June 1971 and August 1987, the Board would have to engage in speculation to find that any current hearing loss is related to service. Inasmuch as the preponderance of the evidence is against the claim, entitlement to service connection for hearing loss is not warranted. ORDER New and material evidence not having been received, the claims for entitlement to service connection for arthritis, benign prostatic hypertrophy and an eye disability, are not reopened, and the appeal based on such claims is denied. Service connection for hearing loss is denied. U. R. POWELL 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.