Citation Nr: 0005646 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-37 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a left ear hearing loss disability. 2. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1944 to August 1946. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in June 1995, in which the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss disability. The veteran subsequently perfected an appeal of that decision. In a March 1998 decision, this case was remanded to the RO for additional development. Upon completion of this development the RO again denied the veteran's claim. Accordingly, this case is properly before the Board for appellate consideration. FINDINGS OF FACT 1. The veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss disability was denied in a June 1992 Board decision. 2. The evidence received subsequent to a June 1992 decision denying the veteran's petition to reopen his claim of entitlement to service connection for left ear hearing loss disability has not been previously submitted; however, it is not relevant and when reviewed in conjunction with the evidence that had been previously submitted it is not significant enough that it must be considered in order to fairly decide the merits of the claim. 3. The evidence received subsequent to the June 1992 decision denying the veteran's petition to reopen his claim of entitlement to service connection for right ear hearing loss disability has not been previously submitted and is relevant, and when reviewed in conjunction with the evidence that had been previously submitted it is significant enough that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The Board's June 1992 rating decision, wherein the veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss disability was denied, is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 20.1100, 3.104(a) (1999). 2. The evidence received subsequent to the June 1992 decision is not new and material, and does not serve to reopen the veteran's claim of entitlement to service connection for left ear hearing loss disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The evidence received subsequent to the June 1992 decision is new and material, and serves to reopen the veteran's claim of entitlement to service connection for right ear hearing loss disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 4. Right ear hearing loss disability was incurred during active service. 38 U.S.C.A. § 1101, 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. New and material evidence to reopen a claim of entitlement to service connection for bilateral hearing loss disability. In a September 1947 decision the RO denied the veteran's claim of entitlement to service connection for bilateral hearing loss disability, and no appeal was perfected therefrom. In February 1985 the RO granted the veteran's petition to reopen this claim, but again denied entitlement to service connection for bilateral hearing loss disability. An April 1987 Board decision confirmed the denial of entitlement to service connection for bilateral hearing loss disability. In July 1988 and June 1992 decisions the Board denied the veteran's petitions to reopen his claim of entitlement to service connection for bilateral hearing loss disability. The Board's June 1992 decision stands as the last final decision on this issue. Prior Board decisions are final, and may be reopened only upon the receipt of additional evidence that, under the applicable statutory and regulatory provisions, is both new and material. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). Pursuant to the applicable regulation, new and material evidence means evidence not previously submitted to agency decisionmakers 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) (1999). In order to be "new" the evidence must not have been in the record at the time of the last final denial of the claim, and must not be merely redundant or cumulative of already considered evidence; that is, it should present new information. Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Dolan v. Brown, 9 Vet. App. 358, 363 (1996). In addition to being "new," the evidence must be material, in that it pertains to the issue for which the petition to reopen is requested. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In order to be "material," the evidence need not warrant revision of a previous decision. Hodge v. West, 155 F.3d 1356 (1998). The significant factor is whether there is a complete record for evaluation of an appellant's claim. Id. Further, in determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that, whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) (1999), is the first determination to have a finally denied claim reopened. Second, if new and material evidence has been presented, immediately upon reopening the claim it must be determined whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, evaluation of the merits of the claim must occur but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). The evidence of record prior to June 1992 which was considered by the RO and the Board in their decisions denying the veteran's claim of entitlement to service connection for bilateral hearing loss disability consists of the veteran's service medical records; VA treatment records from 1947 indicating that the veteran had normal left ear hearing and impaired hearing, mixed type, mild on the right; private treatment records from 1984-85 showing treatment and surgery for a left acoustic neuroma and subsequent profound sensorineural hearing loss bilaterally; a May 1985 statement by a private physician stating that the veteran is totally deaf and that the onset of the veteran's left ear hearing loss was in approximately November 1984 and that right ear hearing loss was from an explosion in service; additional private treatment records showing subsequent treatment for his left and right ears along with treatment for additional disorders; multiple statements by the veteran asserting that he injured the hearing in his right ear during service with no mention of injury to his left ear; and a statement by J.M. who served with the veteran and confirmed right ear hearing loss in service. a. Petition to reopen entitlement to service connection for left ear hearing loss disability. With regard to his left ear hearing loss claim, subsequent to June 1992 the veteran has submitted additional statements concerning his belief that his hearing loss disability is service connected, and December 1994 and December 1995 statements by a private physician asserting that his right ear hearing loss began in service, and his left ear hearing loss is due to his left acoustic neuroma. Reviewing the evidence of record the Board finds that although this evidence is new, in that it has not been seen before, it is cumulative. The veteran's assertions have been stated in the record prior to June 1992, and he merely reiterates his position in his recent submissions, and the private physician's statements confirm the May 1985 statement averring that the veteran's left ear hearing loss began in the mid-1980's some 38 years after discharge. Moreover, this evidence is not material to his claim of entitlement to service connection for left ear hearing loss in that it does not make any attempt to relate his current left ear deafness to service. Accordingly, new and material evidence sufficient to reopen a claim of entitlement to service connection for left ear hearing loss disability has not been submitted, and the veteran's petition to reopen this claim is denied. b. Petition to reopen entitlement to service connection for right ear hearing loss disability. In connection with his right ear hearing loss claim, following the Board's June 1992 denial the veteran submitted additional statements expressing his contention that his hearing loss disability is related to events in service, specifically an explosion; and two statements by a private physician, Dr. Olds, which state that the veteran is deaf, and that his right ear hearing loss is due to injuries suffered in service. Although the veteran's statements are cumulative of evidence already of record, and therefore not new, Dr. Olds statements are new and material. Dr. Olds has never submitted a statement to the record before, making his opinion on the etiology of the veteran's right ear disability new and not cumulative, and his statements are material in that they specifically relate the veteran's right ear hearing loss to his period of active service. Accordingly, the Board finds that the veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for right ear hearing loss disability. Having reopened the veteran's claim, the Board turns to consideration of whether the veteran's claim is well- grounded, as required under Winter and Elkins. The threshold question that must be resolved with regard to a claim is whether the veteran has met his initial obligation of submitting evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Anderson v. Brown, 9 Vet. App. 542, 545 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd. 78 F.3d 604 (Fed. Cir. 1996) (Table). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [§ 5107(a)]" Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). "The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" is generally required. Id. at 93. In order for a claim to be well-grounded, there must be competent evidence of a current disability as provided by a medical diagnosis; incurrence or aggravation of a disease or injury in service as provided by medical or in certain circumstances, lay evidence; and medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1998), aff'd. 78 F.3d 604 (Fed. Cir. 1996) (Table). In addition, combat veterans may use lay testimony as acceptable proof of "in-service incurrence or aggravation of an injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service." 38 U.S.C.A. § 1154(b) (West 1991). However, in the present case, there is no evidence that the veteran was engaged in combat, he was a supply clerk according to his military occupational specialty (MOS), and he does not contradict this MOS, so this provision does not apply to him. Presuming the veteran credible for well-groundedness purposes, he has provided evidence of being injured in an explosion by way of his statements regarding the incident. Additionally, medical evidence of record reveals that he is totally deaf in his right ear, and thus functionally satisfies the criteria for a hearing loss disability set out in 38 C.F.R. § 3.385 (1999). Moreover, as noted, several medical opinions attribute his right ear hearing loss to his injuries in service. Therefore, he has presented a well grounded claim of entitlement to service connection for right ear hearing loss disability. Moreover, the veteran has not identified any records that should be obtained to aid in the evaluation of his claim. Therefore, the Board finds that the VA has met its duty to assist in this case. 38 U.S.C.A. § 5107 (West 1991). Turning to a discussion of the veteran's claim on the merits, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also 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. 38 C.F.R. § 3.303(d) (1999). In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the veteran is entitled to the benefit of all reasonable doubt arising from the evidence. 38 C.F.R. § 3.102 (1999). In the present case, the veteran asserts that his right ear was damaged in service when he was in close proximity to an explosion while investigating a possible robbery. His service medical records do not contain any indication of treatment for a right ear, and in August 1946 at discharge there were no ear abnormalities reported, and his whispered voice test results were documented as 15/20 on the right. J.M., submitted a statement in September 1987 which states that he went through basic training with the veteran and noticed no hearing deficit at that time. He also states that he saw the veteran once overseas while both were stationed in Germany, and he noticed that the veteran could not hear out of his right ear, and that, in fact, to hear he had to turn his head so that his left ear was facing the person speaking. Post-service medical evidence includes a discharge summary from a VA hospitalization for the period from May to June 1947, within a year of discharge. The summary notes that the veteran was diagnosed with impaired hearing, mixed type, mild in his right ear, among other disorders. The record also shows that he had 15/20 hearing in spoken voice, and 10/20 hearing in whispered voice with tuning fork test bone conduction greater than air on the right, and partial loss of "all forks of the right ear." A short form record of his treatment, consisting solely of check marks in boxes next to each of his diagnoses, indicates that his hearing was not service originated, not treated, and that it improved with treatment. No explanation of these contradictions or conclusions is on the sheet as it is merely a check box listing. No further ear or hearing records are in the file until 1984 which show profound hearing loss on the right. In May 1985 he had a left acoustic neuroma removed and the treating physician, Dr. Caparosa, noted that his right ear hearing loss was due to an explosion in service. This opinion is not contradicted in any of the medical records, and is confirmed in submitted opinions by Dr. Olds in December 1994 and December 1995. Dr. Olds also confirms the veteran's total deafness in both ears, and provides an etiology for the veteran's left ear hearing loss, attributing it to his left acoustic neuroma and subsequent surgery. In light of the above evidence, the Board finds that the evidence is in equipoise as to whether there is a reasonable basis for concluding that the veteran injured his right ear during an explosion in service, and that his current right ear hearing loss is related to this injury. Further, to further delay reaching a final decision in this case in order to try to obtain another medical opinion regarding this matter would not be in the best interests of the veteran. Therefore, resolving doubt in the veteran's favor, the Board finds that the veteran's statements regarding his injury, and J.M.'s corroboration that the veteran's right ear hearing was impaired during service are sufficient to establish an in service injury. Moreover, absent an intervening injury to the right ear, given his impaired hearing documented within a year of discharge, and the two separate medical statements relating his current right ear deafness to his injury in service, the Board concludes that a competent nexus has been presented as well. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.102 (1999). Finally, as for a current disability, the report of a November 1984 audiometric examination shows the presence of right ear hearing loss of such severity as to constitute a disability for VA benefits purposes under 38 C.F.R. § 3.385 (1999). Further, medical statements of record confirm that the veteran is totally deaf in his right ear. Consequently, the veteran has met the criteria for establishing entitlement to service connection for right ear hearing loss disability, and his claim therefor is granted. The Board also finds that in light of the grant of benefits sought in connection with this disability, the veteran was not prejudiced by the Board's failure to return the claim to the RO for initial consideration. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER New and material evidence has not been received to reopen a claim for service connection for left ear hearing loss, and the benefits sought on appeal with regard to that disability remain denied. New and material evidence having been received to reopen a claim for entitlement to service connection for right ear hearing loss, the petition to reopen that claim is granted. Entitlement to service connection for right ear hearing loss is granted. JEFF MARTIN Member, Board of Veterans' Appeals