Citation Nr: 0003881 Decision Date: 02/15/00 Archive Date: 09/08/00 DOCKET NO. 94-39 007 DATE FEB 15, 2000 On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Whether new and material evidence has been received to reopen claims for service connection for hearing loss and tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from March 1943 until March 1946. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of April 1993 of the Los Angeles, California Regional Office (RO) which declined to reopen the claim for service connection for an ear disability. This case was remanded by a decision of the Board dated in July 1996 and is once again before the signatory Member for appropriate disposition. FINDINGS OF FACT 1. The RO denied service connection for ear disability in a rating decision of April 1946 and the veteran did not timely appeal the determination. 2. Evidence received since the April 1946 determination by the RO is cumulative or redundant of evidence previously considered, and the additional evidence by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's unappealed April 1946 rating decision which denied service connection for ear disability is final. 38 U.S.C.A. 7105 (West 1991); 38 C.F.R. 3.104(a), 20.302, 20.1103 (1999). 2. The evidence received since the final April 1946 rating decision is not new and material to reopen the veteran's claims for service connection for hearing loss and tinnitus. 38 U.S.C.A. 5108, 7105 (West 1991); 38 C.F.R. 3.156 (1999). - 2 - REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he sustained trauma to his ears in service as the result of a very close range mortar explosions as well as sand being blown in them while serving on Iwo Jima in 1943. He asserts that he was treated for his complaints of aching pain at that time whereupon a medic placed oil that was too hot in his ears resulting in additional injury. It is maintained that he has had ringing of the ears since that time as well as hearing loss for which service connection should now be granted by the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. 3.303(d), 3.306 (1999). In the present case, a claim for service connection for ear disability was initially denied by the RO in April 1946. Notice of the determination, and the veteran's appellate rights, were issued to the veteran and his representative that same month. The veteran did not file an appeal; and this decision is considered final, except that the claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "New and material evidence" means evidence not previously submitted 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); Hodge v. West, 155 F.3rd 1356 (Fed.Cir. 1998) The record reflects that when the RO denied the claim of service connection for ear disability in April 1946, the veteran's service medical records showed no complaints or treatment for such symptoms. Upon examination in March 1946 for release from active duty, hearing in both ears were determined to be within normal limits and it - 3 - was indicated that the veteran had no ear disease or defects. No post-service clinical reports were of record. Service connection for ear trouble was subsequently denied by the RO in April 1946 on the basis that no ear disability was shown by the evidence of record. Evidence received since the April 1946 RO decision includes extensive private and employer-related medical records dating from 1974 which show treatment for numerous complaints and disorders not pertinent to this appeal. A report of an audiogram by Union Carbide in June 1979 provided findings indicative of bilateral hearing loss disability for VA purposes. Medical history was obtained from the veteran at that time wherein he indicated that he had not been exposed to any gunfire or loud noises, or had ever had an ear infection. He affirmatively stated that he had worked at a very noisy job as a miner for 14 years, and noted that he had ringing in the right ear. It was noted that both ear drums were visible, that no perforation or pathology was present, and that both ear drums were normal. A report of an audiogram by Union Carbide Corporation in March 1982 reveals the veteran complained of noise in his ears which was "service connected," that he had had ear infections as a child, and had had a head injury as the result of ice skating when he was younger. He denied he presently had a noisy job, and noted a prior noisy job as a miner. The veteran was afforded a VA ear, nose and throat (ENT) examination for compensation and pension purposes in January 1994 whereupon he rendered a history of exposure to mortar fire exploding all around him and ears filled with sand in 1945. He stated that his ears had been cleaned with oil in sick bay. The veteran related that he had developed ringing in both ears and that the condition had persisted until the present. Examination disclosed scarring and dullness of both tympanic membranes with wax in the right ear. A diagnosis of bilateral high frequency sensorineural hearing loss with constant tinnitus in the right ear was rendered. 4 - The Board finds in this instance that while all of the post-service clinical evidence dating from 1974 is new insofar as it was not considered by the RO in the rating decision of 1946. However, such evidence, considered in conjunction with the record as a whole, is not material, as it does not relate to the basis for the prior final denial. Specifically, the additional evidence, considered in conjunction with the record as a whole, provides no medical support that the veteran's current hearing loss or tinnitus was incurred in service. Essentially, there is still no credible basis to find that the veteran's current hearing loss and tinnitus are of service onset as such conditions were not clinically diagnosed until many years after service discharge, and have not been related to service by credible competent evidence. See 38 U.S.C.A. 1110, 1154 (West 1991), 38 C.F.R. 3.303 (1999). Consequently, the additional clinical and other evidentiary information which has been generated since the April 1946 decision is not so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board concludes that the proffered evidence is not new and material and does not provide a basis to reopen this claim. 38 U.S.C.A. 5108; 38 C.F.R. 3.156(a). The pertinent newly submitted medical records only show that diagnoses of ear disability were rendered many years after service discharge without evidence of any medical link to service. See Cox v. Brown, 5 Vet.App. 95 (1993). As well, the Board has carefully noted the statements presented by the veteran attesting to the circumstances of ear injury in service and continuing ear disability after separation from active duty. However, such statements are not new as they are duplicative of assertions made that he had ear trouble which were essentially of record at the time of the prior final denial of the claim for service connection in April 1946. See Reid v. Derwinski, 2 Vet. App. 312 (1992). The record in this instance reflects that none of the appellant's medical providers in the record has proposed any link between service and the onset hearing loss or tinnitus, nor has it been shown that such disabilities were present shortly after discharge from active duty. Consequently, there is no competent medical evidence of record which establishes a nexus relationship between current ear disability and service. See Caluza v. Brown, 7 Vet. App. 498 (1995). The appellant's opinion in this matter is 5 - not competent evidence of the required nexus. See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995. The Board views its discussion as sufficient to inform the veteran of the elements necessary to reopen his claim for service connection for ear disability, including hearing loss and tinnitus, and an explanation as to why his current attempt to reopen the claim must fail. See Graves v. Brown, 9 Vet. App. 172, 173 (1996); Robinette, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence having not been submitted to reopen the claim of entitlement to service connection for an ear disability, the benefit sought on appeal is denied. U. R. POWELL Member, Board of Veterans' Appeals 6 -