BVA9504995 DOCKET NO. 93-13 631 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hearing loss. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right upper extremity disorder to include the right hand. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right lower extremity disorder to include the right foot. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from July 1949 to April 1955. An April 1992 decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for hearing loss and for partial paralysis of the right upper extremity and right lower extremity as residuals of a cerebral vascular accident. A notice of disagreement to that rating decision was received in June 1992. A statement of the case, issued in July 1992, provided laws and regulations on service connection for disability and on the finality of decisions of the Board of Veterans' Appeals (Board). A January 1993 rating decision denied service connection for tinnitus. This appeal to the Board stems from those rating decisions. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in substance, that the veteran was assigned to an artillery unit in service and was not furnished ear protection. They claim that he noticed hearing loss and ringing in his ears after having been exposed to hundreds, if not thousands, of rounds of artillery at a time during firing. They assert that problems with his right upper extremity and right lower extremity preexisted his cerebrovascular accident. In this regard, they claim that he injured his right leg while assaulting a hill during service and developed problems in the right upper extremity as a result of blood poisoning in service. 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 presented to reopen claims of service connection for hearing loss, a chronic right arm disorder or a chronic foot disorder; further, that the preponderance of the evidence is against a claim of service connection for tinnitus. FINDINGS OF FACT 1. A decision of the Board in March 1991 denied service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder. 2. The evidence received since the Board decision denying service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder in March 1991 is either cumulative or redundant, or when viewed in the context of all the evidence, both new and old, does not raise a reasonable possibility of a change in that adverse decision. 3. Tinnitus was not present in service or until many years thereafter. CONCLUSIONS OF LAW 1. The March 1991 decision of the Board denying service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder is final. 38 U.S.C.A. § 7104 (West 1991). 2. Evidence received since the Board denied service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder in March 1991 is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 3. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's petitions to reopen claims for service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder, as well as his claim for service connection for tinnitus, are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented petitions and claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). Under applicable legal criteria, the March 1991 decision of the Board is final. 38 U.S.C.A. § 7104 (West 1991). However, a claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 1991). When determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial on the merits, rather than only the evidence submitted since the most recent refusal to reopen the claim for lack of new and material evidence. Glynn v. Brown, 6 Vet.App. 523 (1994). The March 1991 Board decision was the last final denial of the veteran's claim on the merits. 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 the 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) (1993). To justify reopening on the basis of new and material evidence, there must be a 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). I. Whether new and material evidence has been presented to reopen claims of entitlement to service connection for hearing loss, a chronic right arm disorder and a chronic right leg disorder Evidence which was of record in March 1991 may be briefly summarized. It included service medical records, VA medical records of 1990, and the veteran's September 1990 appeal to the Board. It appears that some of the veteran's service medical records were destroyed in a fire at a records center. Available service medical records disclose that hearing was normal to whispered voice testing. A routine physical examination includes a historical notation of hospital treatment for an infection of the right hand. No right foot disorders are referenced in service medical records. VA outpatient report of February 1990 and a VA hospital report of March 1990 disclose that the veteran had bilateral sensorineural hearing loss. At the time of initial claim for service connection, filed in May 1990, the veteran did not report post-service treatment for any of these disabilities. In a September 1990 appeal to the Board, the veteran stated that he developed blood poisoning of the right hand in service and was hospitalized for over one month. He related that he injured his right foot while running down a hill and suddenly lost feeling. He commented that hearing loss came about because he was always around light antiaircraft guns and was not offered ear protection. Based on the evidence cited above, the Board in March 1991 denied service connection for hearing loss, a chronic right hand disorder and a chronic right foot disorder. It was determined that a hearing impairment was not present in service and that sensorineural hearing loss was not manifested until many years thereafter; further, that the veteran did not presently have a chronic right hand or right foot disorder which had it onset in service or was related to service Evidence was added to the claims file since March 1991. It includes VA medical records of 1990 to 1992, reports of September and October 1991 from private physicians, and a transcript of testimony at a hearing before a VA hearing officer in October 1992. The veteran was hospitalized at VA medical facility in October 1990 primarily for dyslipidemia. A statement of medical history discloses that right hand cellulitis in 1950 had cleared without sequelae. He reported loss of hearing acuity, greater on the right than the left. A June 1991 outpatient notation reveals a history of gradual hearing loss over the past two years. Clinical examination revealed no abnormalities of the extremities. A September 1991 report from William C. Hendrix, Jr., M.D., relates that the veteran had bilateral sensorineural hearing loss; it was noted that he had complained of loss of hearing with fluctuation and earache for 1 year. An October 1991 report from C. G. Mudaliar, M.D., indicates that the veteran complained of right hand and right foot problems. He stated that he had sustained injury to the right hand and foot while in the army in 1953. There had been a loss of strength in the right hand and right leg and foot. Neurologic inspection disclosed poor grip of the right hand and hyperflexia of the right upper and lower extremity. The impressions included right hemiparesis and conductive deafness. A November 1991 VA outpatient notation indicates that audiologic testing revealed bilateral hearing loss. A February 1992 report of audiologic testing shows bilateral elevated pure tone thresholds and diminished speech recognition ability. A VA medical examination was conducted in April 1992. The veteran related that he had experienced right upper extremity weakness and pain with lifting since 1951. At that time, he had noticed that his forearm was red; he was hospitalized for one month and was given therapy after which time the redness disappeared and strength of the arm returned. The arm had felt quite normal until about 2 1/2 to 3 years before when he was standing still and had suddenly fallen to the ground; thereafter, he had experienced marked weakness of the right lower extremity and had been forced to walk with crutches. He denied a recurrence of redness. There had been no pain in any of the joints and no stiffness except for some vague discomfort in the right ankle. Neurological inspection disclosed moderate weakness of all muscle groups in the right upper extremity and right lower extremity. The impression was residual of left-sided cerebrovascular accident which had resulted in a right hemiparesis and memory defect. The examiner commented that sensory loss was doubtless associated with the cerebrovascular accident. The veteran provided essentially the same history to a VA orthopedic examiner in April 1992, noting that he had been told in service that he had blood poisoning. He reported that while in Korea, he had stepped on a nail, which ran through his boot, penetrating the bottom of his foot. The impression was history of right arm injury and weakness of right side, without significant objective abnormalities. Examination of the foot showed only hypesthesia of the entire foot. A hearing was held before a VA hearing officer in October 1992. The veteran testified that he was hospitalized in service for about 30 to 45 days for blood poisoning involving the right arm and that he thereafter experienced right arm weakness which persisted following service. In other testimony, he stated that he had injured his right foot when he stepped on a nail; that he was treated at an aid station; and that problems with walking on the right foot had persisted following service. He related that he had learned to live with hearing loss and tinnitus, from artillery fire, and did not complain of these problems while in service. With respect to hearing loss, the veteran's statements and testimony added to the record since the Board's March 1991 decision are not new evidence. They are essentially duplicative of evidence previously considered. Additional medical evidence merely shows that the veteran continues to have bilateral sensorineural hearing loss, a condition shown by evidence previously considered to have had its onset long after the veteran completed military service. No medical evidence has been furnished linking sensorineural hearing loss, first verified decades after service, with the veteran's period of active duty. None of the additional evidence is material since it does not raise a reasonable possibility of changing the prior adverse outcome. With respect to a chronic right arm disorder and chronic right leg disorder, the veteran's statements and testimony added to the record since the Board's March 1991 decision are not new evidence. They are essentially duplicative of evidence previously considered. Additional medical evidence is new as well as relevant and probative in that it initially demonstrates that current right upper extremity and right lower extremity symptoms are apparently referable to a stroke which the veteran suffered in recent years. However, the additional evidence does not link any current disability involving the right upper extremity or right lower extremity to military service. None of the additional evidence is material since it does not raise a reasonable possibility of changing the prior adverse outcome. The Board does not dispute the veteran's assertion that, while in service, he experienced hearing loss from exposure to artillery fire; that he developed some type of infection involving the right arm; and that he injured the right foot. However, there is of record no documented postservice recurrence of complaints, findings or treatments for hearing loss or for right arm or right foot problems until decades after service. Absent postservice continuity of symptomatology, the Board concludes that any inservice hearing loss or problems involving the right upper extremity or right lower extremity were transient in nature and resolved without producing residual disability. II. Entitlement to service connection for tinnitus Available service medical records are negative for complaints of ringing in the years. The first recorded postservice reference to ringing in the ears was in a May 1990 statement furnished by the veteran. He commented that he had noticed a ringing in his ears for a brief period of time after having been exposed to prolonged artillery fire. Subsequently, at an October 1992 hearing, he observed that ringing in the ears from artillery fire had persisted throughout the years since service. In the absence of any documented reference to tinnitus until almost 35 years after the veteran had completed active duty, the Board concludes that any inservice ringing in the ears was a transient phenomenon which resolved without producing chronic disability. There is not an approximate balance of positive and negative evidence as to the issues on appeal as to warrant application of the doctrine of benefit of doubt. 38 U.S.C.A. § 5107 (West 1991). ORDER New and material evidence not having been presented to reopen a claim for service connection for hearing loss, the appeal is denied. New and material evidence not having been presented to reopen a claim for service connection for a chronic right arm disorder, the appeal is denied. New and material evidence not having been presented to reopen a claim for service connection for a chronic right lower extremity disorder, the appeal is denied. Service connection for tinnitus is denied. (CONTINUED ON NEXT PAGE) N. R. ROBIN 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.