BVA9504509 
DOCKET NO.  91-55 089     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Honolulu,
Hawaii

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim of service connection for hearing loss in the left
ear.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

C. M. Flatley, Counsel

INTRODUCTION

The veteran had active service from February 1965 to April 1971.

Entitlement to service connection for hearing loss in the left
ear was denied by the Board of Veterans' Appeals (Board) in a
March 1985 decision.  As the veteran's claim that his service
connected right ear hearing loss caused his left ear hearing loss
was not addressed in the previous Board decision that aspect of
the claim will be considered on a de novo basis.

After developing additional evidence in this case, the Board, in
accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed
the appellant in a February 1995 letter of the additional
evidence developed and provided an opportunity to respond.  In
February 1995, the representative responded that no further
comment would be provided.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the evidence of record warrants an
allowance of service connection for hearing loss in the left ear.
It is also asserted that the veteran's left ear hearing loss had
its onset as a result of the veteran's service-connected right
ear hearing loss.  It is maintained that service connection for
tinnitus is warranted.

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 new and material evidence to reopen a claim of service
connection for hearing loss in the left ear has not been
submitted, that a well-grounded claim with regard to secondary

service connection for hearing loss in the left ear has not been
submitted and that the evidence supports the grant of service
connection for tinnitus.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of the
veteran's appeal has been obtained.

2.  Entitlement to service connection for hearing loss in the
left ear was denied by the Board in March 1985; evidence received
since that time does not present a reasonable possibility of a
change in the outcome of that decision.

3.  Service connection is in effect for sensorineural hearing
loss in the right ear.

4.  An etiologic relationship between the veteran's hearing loss
in the right ear and his hearing loss in the left ear has not
been shown.

5.  The veteran's tinnitus is due to the neurosensory component
of his service- connected sensorineural hearing loss in the right
ear.

CONCLUSIONS OF LAW

1.  The March 1985 decision of the Board which denied entitlement
to service connection for hearing loss in the left ear is a final
determination.  38 U.S.C.A. § 7104(b) (West 1991).

2.  Evidence received since the Board's March 1985 denial of
entitlement to service connection for hearing loss in the left
ear is not new and material; that claim is not reopened.  38
U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994).

3.  The veteran's claim of service connection for hearing loss in
the left ear as secondary to his service-connected hearing loss
in the right ear is not well grounded within the meaning of
governing law.  38 U.S.C.A. § 5107.

4.  The veteran's tinnitus is proximately due to the neurosensory
component of his service-connected right ear hearing loss.  38
C.F.R. § 3.310(a) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board notes that upon appellate review previously,
it was determined that additional action was indicated, including
the scheduling of an examination.  The requested action, however,
was unable to be accomplished, as notification mailed to the
veteran's last known address was repeatedly returned.  In
response to a request from the regional office (RO), the
veteran's representative at the local level indicated that an
identical address was on file with the representative
organization and that the veteran had not been in contact with
that organization for a period in excess of one year.  In this
regard, the Board stresses that, although we are aware of the
Department of Veterans Affairs' (VA's) duty to assist the
veteran, certain efforts are required of the veteran in order to
allow the VA to assist him; providing a current address upon
relocation is such an effort.  As noted by the United States
Court of Veterans Appeals (Court) in Wood v. Derwinski, 1
Vet.App. 190, 193 (1991), the duty to assist is not a one-way
street, and ,if the veteran wishes help, he cannot passively wait
for it in those circumstances where he may or should have
information that is essential in obtaining the putative evidence.
Wood, 1 Vet.App. at 193.  The Board concludes that a similar
situation is presented here, and that the veteran has failed to
provide the information required to complete action on his claim.
As such, the Board will proceed with the veteran's claim based on
the evidence of record.

The Board also notes that this claims folder was assigned in the
past to a former Board employee who has been convicted of
tampering with veterans' claims folders.  After careful scrutiny,
it does not appear that any documents contained in the claims
file have been altered or removed.  As there is no evidence of
any compromise of the integrity of the record on appeal, the case
may properly be considered and decided by the Board.

I.  Hearing Loss of the Left Ear

Review of the record, as intimated above, indicates that the
veteran has been assisted in the development of his case to the
extent required; that is, where appropriate, pertinent records,
including service medical records and post-service clinical data,
have been obtained and associated with the veteran's claim file.
38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990);
Counts v. Brown, 6 Vet.App. 473 (1994).

A.  Whether New And Material Evidence Has Been Submitted To
Reopen A Claim Of Service Connection For Hearing Loss In The Left
Ear.

When the Board considered the veteran's claim of service
connection for hearing loss in the left ear in 1985, the evidence
of record included the veteran's service medical records, which
revealed no complaint, finding, or treatment of hearing loss in
the left ear.  On examination in March 1971 for separation from
service, audiometer findings were as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT
0
0
10
50
55

LEFT
0
0
0
0
0

A diagnosis of high frequency hearing defect in the right ear was
made.

On VA examination completed in February 1982, the veteran
reported that he had hearing loss on the right since service.
Examination revealed normal clinical findings and, on
audiological evaluation, pure tone thresholds, in decibels, were
as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT
25
30
30
55
65

LEFT
25
25
20
45
65

Speech audiometry revealed speech recognition ability of 84
percent in the right ear and 100 percent in the left ear.  The
diagnosis was bilateral moderate high frequency hearing loss.

Statements from Pablo A. Tiangsing, M.D., dated in September 1981
and April 1982, reflect a finding of high frequency hearing loss
on the right and hearing loss on the left.  Inability to hear the
"spoken word" due to narrowing of the Eustachian tube was noted.

A May 1982 statement from Diosdado L. Latosquin, M.D., notes loss
of hearing, bilaterally.  A statement from Hermogenes M. Felix,
M.D., reflects that the veteran sought treatment for hearing loss
in the left ear in May 1982.  Loss of hearing on the right is
noted in statements from Dr. Latosquin dated in approximately
June 1982 and in January 1983.

An April 1983 letter from Antonio F. Domingo, M.D., notes that
the veteran had been under treatment since 1981 for total
deafness in the left ear and for partial deafness in the right
ear, secondary to chronic recurrent otitis media, bilateral.  It
was noted that the veteran had been unable to hear audible words
during the past few years.  A February 1984 letter from Antonio
F. Domingo, M.D., notes treatment of the veteran since 1982 for
disabilities including bilateral hearing loss.

A report of a VA examination conducted in April 1984 reveals
normal clinical findings.  On authorized audiological evaluation,
pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT
50
50
60

LEFT
95
100
NR

Speech recognition ability was 45 percent in the right ear and 60
percent in the left ear.  The diagnoses were moderately severe
sensorineural hearing loss in the right ear and severe to
profound sensorineural hearing loss in the left ear.  It was
noted that compared with testing in 1982 there was a big
discrepancy in hearing threshold and that present hearing
thresholds were exaggerated.

A statement was received from the veteran in June 1984, in which
he described ear pain while flying in service, affecting his
hearing temporarily.  He noted that near the end of his period of
active service he noticed decreased hearing with pain and a
whistling sound.

As noted above, the Board determined in a March 1985 decision
that service connection for hearing loss in the left ear was not
warranted.  Pertinent law states that 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(b).  A decision of the Board may be reopened
and reviewed, however, upon the submission of new and material
evidence.  38 U.S.C.A. § 5108.  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 in order
to fairly decide the merits of the claim; it is relevant and
probative of the issue at hand.  Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991);
38 C.F.R. § 3.156(a).  It has been held that to justify a
reopening of a claim on the basis of new and material evidence,
there must be a reasonable possibility that the new evidence,
when viewed in the context of all of the evidence, both new and
old, would change the outcome of the case.  Colvin, 1 Vet.App. at
174; Smith v. Derwinski, 1 Vet.App. 178, 179 (1991).

Evidence submitted subsequent to the Board's 1985 determination,
in pertinent part, consists of a statement from the veteran's
spouse dated in September 1988, which reflects that the veteran's
hearing was impaired upon discharge from service, and clinical
and audiology findings dated in 1989 and 1990, including non-VA
results recorded in September and November 1989.  VA examination
reports of February and June 1989 and VA audiology results
recorded in June 1989 were also submitted.  The evidence shows
the continued presence of bilateral hearing loss.  Clinical
evaluation in June 1989 led to diagnoses of rule out bilateral
Eustachian tube dysfunction and bilateral hearing loss.  In a
review by a VA examiner of audiometry results conducted in
January 1990, it was noted that inconsistencies were present with
respect to findings regarding hearing loss recorded in 1984 and
1989 and that substantial high frequency sensorineural impairment
was confirmed in January 1990 test results.  Although new, in
that such evidence is not cumulative of other evidence of record,
the Board concludes that such evidence is not material, as it is
not relevant to the issue of in-service incurrence of left ear
hearing loss.  Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991);
38 C.F.R. § 3.156(a).  The additional evidence shows only that
left ear hearing loss continues to exist and provides no link to
active service.  The evidence does not tend to establish that the
hearing loss was incurred in service.  When considered in
conjunction with the remainder of the record, the evidence fails
to present a reasonable possibility of a change in the outcome of
the veteran's case.  Colvin, 1 Vet.App. at 174; Smith v.
Derwinski, 1 Vet.App. 178, 179 (1991).

Evidence added to the record subsequent to the Board's 1985
decision also includes an undated lay statement from the
veteran's spouse and lay statements from the veteran's neighbors
dated in November 1990, which reflect recollection of the
veteran's difficulty hearing in service and shortly thereafter.
The Board concludes that such evidence also is not new and
material.  In essence, it reiterates the veteran's argument at
the time the Board considered his claim in 1985, that is, that
left ear hearing loss was present in service.  The Board notes
that even if the evidence were considered new, and were
determined to be relevant to the issue of in-service incurrence,
the statements are not sufficient, in conjunction with the
remainder of the record, to create a reasonable possibility of a
change in the outcome of the veteran's case.  Id.  In this
regard, the Board emphasizes that, although lay witnesses may
provide an account of visible symptoms, their capability to offer
evidence that requires medical knowledge, such as an identifiable
diagnosis, is limited.  Espiritu v. Derwinski, 2 Vet.App. 492,494
(1992).  In this case, the aforementioned lay statements are
accorded due consideration with respect to observations made as
to the veteran's hearing.  However, they do not establish that
the veteran's left ear hearing loss is related to service; and,
with the remaining evidence of record, they are insufficient to
provide a basis for reopening the veteran's claim.  Colvin, 1
Vet.App. at 174; Smith, 1 Vet.App. at 179.

In summary, the evidence submitted since the Board's 1985
decision does not serve to reopen the veteran's claim, as such
evidence does not meet the required statutory or regulatory
criteria, particularly as interpreted by the Court.  The evidence
primarily represents current data or allegations which are not
otherwise supported by the evidence.  Overall, a reasonable
possibility that the new evidence, when viewed in the context of
all of the evidence, both new and old, would change the outcome
is not present.  Upon review of the record, therefore, the Board
must conclude that, as new and material evidence has not been
submitted, the veteran's claim of service connection for hearing
loss in the left ear is not reopened.  Id.

B.  Secondary Service Connection.

VA regulations also provide that service connection may be
allowed for a disability which is proximately due to or the
result of a service-connected disability.
38 C.F.R. § 3.310 (a).  In this instance, the veteran asserts
that his left ear hearing loss developed as a result of his
service-connected right ear hearing loss.  Review of the record
fails to substantiate the veteran's claim in this regard.

The evidence establishes a diagnosis of right ear hearing loss in
service.  Post-service, the evidence shows that hearing loss in
the left ear initially became clinically manifest in
approximately 1982.  Decreased hearing as a result of narrowing
of the Eustachian tube and chronic otitis media has been
reported.  No evidence has been presented, however, which tends
to establish a causal relationship between the veteran's service-
connected right ear hearing loss and hearing loss in the left
ear, including as a result, as argued by the veteran, of
overdependence on the left ear.

When the veteran submits a claim, it must be accompanied by
supporting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded, that is,
one which is plausible or capable of substantiation.  38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).

In this case, the Board is unable to conclude that the veteran's
claim of secondary service connection is capable of
substantiation.  Other than the veteran's contentions, there is
no evidence which substantiates his argument as to an etiologic
relationship between his service-connected right ear hearing loss
and his left ear hearing loss.  Upon review of the record,
therefore, the Board concludes that the burden of submitting a
claim accompanied by evidence sufficient to justify a belief that
the claim is well grounded has not been met.  Id.  That is, based
on the evidence of record, the veteran's claim is not capable of
substantiation.  Id.

II.  Tinnitus

Entitlement to service connection is warranted for a disability
which is incurred in or aggravated by the veteran's period of
active service.  38 U.S.C.A. §§  1110.  Determinations of service
connection are based on a review of the entire evidence of
record.  38 C.F.R. § 3.303.

On VA audiology examination in January 1990, the veteran reported
the presence of constant tinnitus, bilaterally, and noted that it
began in 1971.  The record shows that service connection is in
effect for hearing loss in the right ear and that the hearing
loss is sensorineural in nature.  Tinnitus associated with
sensorineural hearing loss is not uncommon.  Samuel C. Levine,
M.D., Diseases of the Inner Ear, in Boies Fundamentals of
Otolaryngology 123 (George L. Adams, et al. eds., 6th ed. 1989).
Based upon such findings, and the veteran's report made on VA
examination in January 1990 that his tinnitus was present since
service, the Board cannot reasonably dissociate his current
complaint of tinnitus from the neurosensory component of his
service-connected right ear hearing loss.  Accordingly, secondary
service connection for tinnitus is warranted.

ORDER

As new and material evidence has not been submitted to reopen a
claim of direct service connection for hearing loss in the left
ear, the benefit sought on appeal is denied.

The claim for entitlement to service connection for hearing loss
in the left ear as secondary to the veteran's service-connected
hearing loss in the right ear is dismissed.

Service connection for tinnitus is granted.

          GEORGE R. SENYK
          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.