Citation Nr: 0005834 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-11 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to May 1976. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which held that new and material evidence had not been submitted to reopen the veteran's claim for service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. In this regard, the Board notes that the August 1996 rating decision did not become final and remains on appeal, as the veteran submitted additional medical records in July 1997, within the one-year period to continue his appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. An unappealed June 1990 rating decision denied service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. 3. Evidence added to the record since the June 1990 rating decision is cumulative, and when viewed in conjunction with the evidence previously of record, is not so significant it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the June 1990 denial of service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran continues to maintain that because of his service he now suffers from otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. Accordingly, a favorable determination is requested. As a preliminary matter, the Board also notes that in correspondence received in October 1999, the veteran's representative asserted that the claim should be remanded for adjudication in light of Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). The Board notes that the RO decided the veteran's new and material evidence claim under a standard which has since been overruled by Hodge, supra. However, the change in the law addressed the definition of "material evidence." The Board does not reach the question of whether any additional evidence since the prior final denial is "material." As such, the veteran is not prejudiced by the initial analysis of his new and material claim under the new case law by the Board. See Bernard v. Brown, 4 Vet. App. 384 (1993); Anglin v. West, No. 99-7019 (Fed.Cir. Feb. 15, 2000). A June 1990 rating decision denied service connection for the claimed disability. The rating decision held that the veteran's left ear otitis media pre-existed service and that left ear hearing loss and tinnitus were considered due to the natural progression of such recurrent chronic ear infection. Service connection for otitis media of the right ear was denied as there was a history of this condition prior to service. Service connection for right ear hearing loss was denied as hearing was normal on post-service VA examination. This decision became final when the veteran did not file a notice of disagreement within one year of the date he was notified of the unfavorable determination. See 38 U.S.C.A. § 7105(b)(1), (c) (West 1991); Person v. Brown, 5 Vet. App. 449, 450 (1993). A final decision cannot be reopened and reconsidered by the Board unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. See 38 U.S.C.A. § 5108; Suttman v. Brown, 5 Vet. App. 127, 135 (1993). When it is determined that new and material evidence has been submitted, the VA must reopen a previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 286-87 (1993); see also 38 U.S.C.A. § 7104(b) (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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 to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see generally Hodge, 155 F.3d at 1356. "New evidence" is that which is not merely cumulative of other evidence of record. Covin v. Derwinski, 1 Vet.App. 171, 174 (1991). For the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App 510, 513 (1992). 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, 1131 (West 1991). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. This presumption of soundness is rebutted by clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(b) (1995); Sondel v. West, 13 Vet App 213 (1999). Hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (1999). Evidence considered by the June 1990 rating decision included the veteran's service medical records. The report of examination for entrance into service, conducted in October 1972, is negative for complaints or clinical findings of otitis media, tinnitus or hearing loss disability for VA purposes. During service, from July 1973, the veteran complained of bilateral hearing loss and constant tinnitus on the left side. When seen in July 1973, the veteran reported he had undergone tympanoplasty of the left ear in 1971 for chronic otitis media, left greater than right. Examination at an ear, nose and throat clinic, in July 1973, revealed a normal right tympanic membrane with a retraction pocket, sclerosis and malleolus. The left tympanic membrane was deformed with a perforation. The impression was conductive bilateral hearing loss secondary to chronic infection. In January 1974, a tube was placed in the veteran's left ear for active bleeding from the ear canal. At separation, the veteran's left ear hearing was 80 decibels at 500 hertz, 75 decibels at 1000 hertz, 85 decibels at 2000 hertz and 100 decibels at 4000 hertz. The veteran's right ear hearing was 45 decibels at 500 hertz and 4000 hertz. It was noted on physical examination the tympanic membranes were scarred. Reports of private audiometric examination in April 1989 for purposes of employment demonstrated left ear hearing loss disability for VA purposes, and no right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385 (1999). On initial post-service VA examination in May 1990, the veteran complained of steady left ear tinnitus and hearing loss. The impression was tinnitus of the left ear and history of hearing loss. An audiogram at that time confirmed that the veteran did not have right ear hearing loss disability for VA purposes, and that he had left ear hearing loss disability for VA purposes. Physical examination showed otorrhea on the right tympanic membrane. The left ear had a hemorrhagic appearance with either a lesion or fluid behind the left tympanic membrane. The examiner opined a CT scan of the mastoids was needed to rule out middle ear disease or vascular lesion. The record does not contain a report of any such CT scan. Evidence submitted since the June 1990 rating decision consists in part of duplicate copies of some of the veteran's service medical records, and 1994 private, and 1996 and 1997 VA, treatment records pertaining to conditions other than the claimed disabilities. The report of a March 1995 VA examination indicates that the veteran complained of left ear tinnitus. Audiological testing revealed increased left ear hearing loss disability for VA purposes. Hearing loss disability for VA purposes was not demonstrated in the right ear. A left exploratory tympanotomy, with revision total ossicular construction and replacement prosthesis was conducted in May 1996 by VA for left ear hearing loss. In April and May 1996, he was treated for left otalgia. Right ear hearing loss disability for VA purposes was demonstrated on VA audiological evaluation in June 1996, and not on VA audiometric evaluation in May 1997. In addition, June 1996 VA treatment records were submitted showing that the veteran complained of a popping noise in the left ear. Additional VA treatment records show that in November 1996 the veteran reported that the popping noise in his left ear had stopped. The veteran underwent a left myringotomy plus tympanostomy tube placement and left tympanotomy with PORP replacement in November 1996. The pre- operative and post-operative diagnosis was conductive hearing loss. In April and May 1997, the veteran was treated for left ear otorrhea. A May 1997 audiological evaluation found that the veteran's left ear tympanogram was flat. There was no significant change in hearing since June 1996. Finally, in July 1998 the veteran submitted a statement asserting that his loss of hearing was the result of the military's failure to issue him ear plugs. The additional evidence submitted since the June 1990 rating decision is cumulative and does not address what was missing at the time of that decision, even when considered with the record as a whole. At the time of the June 1990 RO determination, the clinical evidence of record established service entrance examination had been negative for otitis media, left ear tinnitus and hearing loss disability for VA purposes. As such, the veteran was entitled to the presumption of soundness on induction as to the disabilities at issue. 38 C.F.R. § 3.304. However, the presumption of soundness as to chronic otitis media was rebutted by clear and unmistakable evidence then of record of inservice clinical demonstration, in July 1973 of left tympanic deformity with perforation, and right tympanic membrane retraction pocket, sclerosis and malleolus, consistent with the veteran's reported history of preservice chronic otitis media requiring surgery. Sondel v. West, 13 Vet App 213 (1999). Additionally, the clinical impression in July 1973 attributed diagnosed conductive bilateral hearing loss to chronic infection. The clinical evidence then of record also supported the RO's finding that left ear tinnitus was a natural residual of the pre-existing chronic otitis media. What was missing at the time of the June 1990 rating decision was competent (medical) evidence that the veteran's otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear was incurred in or aggravated by his active service. The duplicate copies of the veteran's service medical records are copies of evidence previously considered. The private and VA records of treatment for conditions other than hearing loss and tinnitus are not material to the issue of the etiology of the disabilities at issue. The 1995, 1996 and 1997 VA examination and treatment records for otorrhea, hearing loss and tinnitus were not previously of record, but as they simply address post-service status and treatment, many years after the veteran's service, they are cumulative relative to the previously established fact of the existence of chronic recurrent ear infection, left ear tinnitus and bilateral hearing loss. They do not provide a nexus between his service or activity of service and his current complaints. They do not show that his service aggravated or caused his otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. The July 1998 written statement from the veteran fails to show that his service aggravated or caused his current chronic ear infections, hearing loss or tinnitus. As a layperson, the veteran is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation or aggravation. Espiritu, 2 Vet. App. 492 (1992). Consequently, his own assertion as to a nexus are not material and do not warrant reopening his claim. In light of the above, the Board concludes that the newly submitted evidence is not new, and as such, not new and material so as to warrant reopening the previously denied claim for service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear. ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claim for service connection for otitis media with subsequent hearing loss and tinnitus of the left ear and hearing loss of the right ear is denied. U. R. POWELL Member, Board of Veterans' Appeals