BVA9504117 DOCKET NO. 92-23 338 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD James Frost, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to August 1954. This appeal arises from a rating decision in February 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A rating decision in October 1973 denied entitlement to service connection for hearing loss with tinnitus; the veteran was duly notified of the decision; he did not file a timely appeal and the decision became final. Subsequently, he submitted additional evidence in an attempt to reopen his claim; the RO found that the additional evidence was not new and material and the current appeal ensued. In June 1994, during the pendency of the current appeal, the veteran's representative asserted that the rating decision in October 1973, which denied service connection for hearing loss and tinnitus, involved clear and unmistakable error. This claim is not inextricably intertwined with the current appeal, and it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has had bilateral hearing loss and tinnitus since exposure to loud noise in service in Korea. 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 has not been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. The agency of original jurisdiction denied entitlement to service connection for hearing loss and tinnitus in October 1973, finding that hearing loss which preexisted service did not increase in severity in service and that tinnitus did not develop in service. 2. Additional evidence submitted since 1973 shows only that the veteran, who has had significant post service noise exposure, developed severe high frequency hearing loss many years after service and also began to complain that he had tinnitus. CONCLUSIONS OF LAW 1. The decision of the agency of original jurisdiction in October 1973, denying the veteran's claim of entitlement to service connection for hearing loss and tinnitus, is final. 38 U.S.C.A. §§ 1110, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 2. Evidence received since the agency of original jurisdiction denied entitlement to service connection for hearing loss and tinnitus in 1973 is not new and material and the veteran's claim for that benefit is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The evidence which was of record at the time of the prior decision by the agency of original jurisdiction in 1973 may be briefly summarized. Service medical records disclosed that at an examination for enlistment in January 1951, the veteran's hearing was abnormal; auditory acuity was reported as 12/15, bilaterally. In July 1952, the veteran sustained a shell fragment wound to the abdomen; at admission to a service department hospital, he underwent a physical examination, at which his ears were reported as normal. At an examination for service separation in August 1954, the veteran's hearing was reported as 20/15, bilaterally, or normal. In his original application for VA compensation or pension, received at the RO in September 1954, the veteran made no reference to hearing loss or tinnitus. At a VA medical examination in November 1954, the veteran's ears and hearing were reported as normal. The United States Court of Veterans Appeals (the Court) has held that, in a case such as the veteran's, the Board of Veterans' Appeals should consider all additional evidence submitted since the most recent decision on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994). Accordingly, the additional evidence submitted since October 1973, summarized below, will be considered in conjunction with the veteran's attempt to reopen his claim. The additional evidence contains a report of a visit by the veteran in July 1985 to a VA outpatient clinic, where he requested an audiological evaluation. He complained of decreased hearing and tinnitus for three years. At a VA ear, nose and throat clinic in July 1985, he presented with a history of a right tympanoplasty five years earlier, which was performed due to a perforation of the right tympanic membrane. On examination, a well-healed scar on the right ear was observed. An audiological examination showed a bilateral high frequency sensorineural hearing loss. At the VA audiological examination in July 1985, the veteran complained of continuous, high-pitched tinnitus, bilaterally. He reported that he had had noise exposure as a machine gunner in Korea and that he also had noise exposure in his postservice occupation as a welder. He did not wear ear protection at all times. In a statement in support of his claim, received in March 1987, the veteran stated that he was a machine gunner during the Korean Conflict and had the onset of ringing in his ears at that time. In a statement received at the RO in September 1992, the veteran stated that he used a machinegun in Korea, which was noisy, without wearing ear plugs. After review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the agency of original jurisdiction's 1973 decision remains final. While some of the additional evidence is "new," in the sense that it is not cumulative and redundant of prior evidence, none of the additional evidence is "material." Assuming, without deciding that the additional evidence is relevant and probative, there is no reasonable possibility that the additional evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The additional evidence contains no objective proof whatsoever that the veteran's present hearing loss and claimed tinnitus had their onset in service. The fact that he has had ongoing postservice noise exposure in his occupation as a welder obviously does not support a finding that his hearing loss was aggravated in service. Furthermore, the Board notes that his statement in 1985, which he made for treatment purposes, that he had only had hearing loss and tinnitus for three years is directly contrary to his claim and in no way calls into question the prior denial. In sum, the additional evidence does not in any way show that the 1973 rating decision should be reversed. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss and tinnitus, the benefit sought on appeal is denied. ALBERT D. TUTERA 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.