BVA9502334 DOCKET NO. 93-23 231 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been presented to reopen the claim for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to October 1945. This appeal to the Board of Veterans' Appeals (Board) arises from the June 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma, which held that no new and material evidence had been presented to reopen the veteran's claim for service connection for bilateral hearing loss. The veteran's claim was previously denied by an unappealed April 1978 rating decision. The current appeal stems from the veteran's May 1992 attempt to reopen his claim. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he is entitled to service connection for bilateral hearing loss. The veteran argues that he currently has a bilateral hearing loss secondary to his service connected multiple scars to the scalp. He asserts that new and material evidence has been presented to reopen his claim in the form of the report of a VA compensation examination begun in August 1992, and completed in April 1993. He contends that his right ear hearing loss resulted from a perforation of the ear drum caused by shrapnel which spontaneously drained from his right ear. 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 folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the additional evidence presented does not constitute new and material evidence to reopen the veteran's claim for service connection for bilateral hearing loss. FINDINGS OF FACT 1. An April 1978 rating decision denied service connection for bilateral hearing loss. 2. The veteran was notified of that decision, and of his appellate rights, by an April 1978 letter addressed to his address of record, and a notice of disagreement was not received within the subsequent one year period. 3. Subsequent to that decision, additional evidence has been presented, consisting of the report of a VA compensation examination conducted during August and November 1992 and April 1993. 4. The evidence submitted since the April 1978 decision is not cumulative, and is relevant to, but not probative of the issue at hand. It does not present a reasonable possibility of a changed outcome. CONCLUSION OF LAW The unappealed April 1978 rating decision is final; no new and material evidence has been presented to reopen the veteran's claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5107, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156, 20.302(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The service medical records indicate that the veteran had normal hearing, described as 15/15, and no abnormalities of the ear on the examinations conducted at induction and at separation from service. The report of his separation examination also states that there were no residual complaints related to the scalp and face wounds he sustained during service in December 1944. These records do not reflect that the shrapnel wound involved the structures of the ears. When the veteran filed his initial claim for VA compensation, in November 1945, he did not report ear damage due to shrapnel or hearing loss. On VA compensation examination in March 1947 the veteran's ear drums and canals were found to be normal. Hearing was reported to be 20/20 bilateral. VA clinical records for August 1956 show that the veteran complained of left ear pain of three days' duration. On physical examination the tympanic membrane was markedly injected and retracted in the area of the pars flaccida. Tenderness was noted in the post-auricular area without drainage. Bilateral myringotomy was reportedly performed for retracted ear drum, which was also found in the right ear. Diagnosis was acute, nonsuppurative otitis media, which was noted to clear up with Achromycin. VA outpatient records disclose that in June 1977 the veteran was treated for a complaint of right ear otorrhea of a year's duration. He also reported decreased hearing over the previous 2 to 3 years. On examination the veteran was found to have a perforation of the right tympanic membrane and adhesive otitis media in the left ear. X-rays indicated bilateral sclerosis of the mastoids with virtually no pneumatization compatible with chronic changes. The auditory canals appeared normal. Bilateral hearing loss, moderate to severe in the right ear, and moderate mixed loss in the left ear, was noted following an August 1977 audiological evaluation. In September 1977 the veteran underwent right ear tympanoplasty in a VA facility. At that time examiners indicated that the left tympanic membrane was retracted. The hospital report reflects that he had a long history of hearing loss and intermittent otorrhea. The pertinent diagnoses were chronic otitis media, right, with conductive deafness and bilateral high frequency sensorineural hearing loss. On October 1977 VA compensation examination the diagnosis was chronic right otitis media postoperative right tympanoplasty and bilateral hearing loss documented by audiometric testing. It was noted that he had a long history of ear disease; however no references to ear injury in service were reported. According to the April 1978 rating decision, in April 1978 the veteran and his mother appeared personally at an informal hearing before the rating board. Reportedly the veteran stated, and his mother confirmed, that a piece of shrapnel had drained from his right ear shortly after he was separated from service. The veteran asserted that this circumstance provided a basis for service connection for his hearing loss. Service connection was denied by that rating decision which found no evidence in the veteran's service medical records of shrapnel entering his ears. An April 1978 letter notified the veteran of the rating decision and his right of appeal. No notice of disagreement was filed within the allowable one year period. The veteran applied to reopen his claim in May 1992 and requested a VA examination. At the time of VA examination in August 1992, the veteran reported that a piece of shrapnel perforated his right eardrum; the examiner noted that all scars were asymptomatic. The report of a November 1992 VA examination discloses severe to profound mixed right ear hearing loss, and severe mixed left ear hearing loss, which was mostly sensorineural, with poor speech recognition scores bilaterally. Impedance audiometry showed a flat right tympanogram and a rounded, type A, left tympanogram. The veteran reported noise exposure in service and post-service as a truckdriver. In an April 1993 addendum to the November VA examination, the examiner reported the veteran's statement that he had a ruptured right ear drum secondary to shrapnel that required tympanoplasty. The examiner also expressed the opinion that because of the mixed type of his hearing loss, he concurred in the veteran's opinion that his hearing loss was due to the shrapnel injury to the ear drum, with the subsequent resulting chronic otitis media with infection New and Material Evidence to Reopen the Veteran's Claim Absent the filing of a notice of disagreement and a substantive appeal within one year of the date of mailing of the notification of the denial of a veteran's claim, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302(a). However, the claim will be reopened upon presentation of "new and material evidence." 38 U.S.C.A. § 5108. If new and material evidence has been received, the second step, involving a de novo review of all the evidence, both old and new, is to be undertaken to determine if there is a basis for granting the claim. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95, 98 (1993). "Material" evidence is that which is relevant to and probative of the issue at hand and which is of sufficient weight or significance, that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, new and old, would change the outcome. Id. In determining the issue of new and material evidence the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The United States Court of Veterans Appeals has determined that the benefit of the doubt rule operates to lower the threshold of whether new and material evidence is sufficient to change the outcome of a case. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Board finds that the additional evidence presented in this case is new, in the sense that it is not merely cumulative of evidence previously contained in the claims folder, and relevant to the pertinent issue - the origin of the veteran's hearing loss. However, the report of his recent VA examination is not probative of the issue of service incurrence of the veteran's hearing loss for the following reasons. It is axiomatic that an opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The factual premise of the opinion expressed by the April 1993 VA examiner was that the veteran had sustained right ear drum perforation by shrapnel, an alleged circumstance which was determined to be without evidentiary support in the unappealed April 1978 rating decision. As noted at that time, the service medical records contain no support for this theory of the veteran, nor did the post-service medical evidence reflect that hearing loss was present until years after service. In the 1950's the veteran developed ear infections, necessitating surgical procedures on the eardrum. The hospital report in no way attributes the need for surgery or any physical findings to a shrapnel wound. The veteran has presented no new and material evidence to support his allegation and possibly change the outcome of the April 1978 rating decision with respect to that issue. Accordingly, the opinion expressed in the recent examination report, being based on an unfounded factual premise, has no probative value regarding the issue of service connection. Inasmuch as this additional evidence could not change the outcome of the case, it does not constitute new and material evidence which would warrant reopening the veteran's claim. The Board concludes that no new and material evidence has been presented to reopen the veteran's claim for bilateral hearing loss. ORDER There is no new and material evidence to reopen the veteran's claim for service connection for hearing loss which remains denied. _____________________________ 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.