Citation Nr: 0005122 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 96-51 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for headaches. 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from June 1968 to June 1970. By rating action in March 1984, the RO denied service connection for chronic headaches. The veteran and his representative were notified of this decision in May 1984, and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 decision by the RO which denied the veteran's request to reopen the claim of service connection for headaches, and denied service connection for defective hearing. A personal hearing at the RO was held in May 1997. FINDINGS OF FACT 1. Service connection for chronic headaches was denied by an unappealed rating decision by the RO in March 1984. 2. The additional evidence received since the March 1984 rating decision does not show a relationship between the veteran's current headaches and service, and is not so significant that it must be considered with all the evidence of record. 3. The veteran served in combat during military service. 4. No competent evidence has been submitted to establish that the veteran has defective hearing which is due to disease or injury in service. CONCLUSIONS OF LAW 1. Material evidence has not been submitted to reopen the claim of service connection for headaches. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 2. The veteran has not submitted a well-grounded claim of service connection for defective hearing. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to reopen A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.1103 (1999). As noted above, service connection for headaches was denied by the RO in March 1984. The veteran and his representative were notified of this decision and did not appeal. Because the present appeal does not arise from an original claim, but rather comes from an attempt to a reopen claim which was previously denied, the Board must bear in mind the important distinctions between those two types of claims. In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). Section 5108 of title 38 of the United States Code provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The regulations provide that new and material evidence means evidence not previously submitted to agency decision makers 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). Current caselaw provides for a three-step approach in determining whether new and material evidence has been presented to reopen a claim. First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, it must be determined immediately upon reopening whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(A); and third, if the claim is well grounded, the merits of the claim must be evaluated after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Winters v. West, 12 Vet. App. 203 (1999) (en banc). The Board notes that caselaw of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") mandated that an additional question had to be addressed; that is, whether in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This additional test was overruled in the Hodge case cited above. Although the RO in this case cited the overruled portion of the Colvin test in the November 1996 Statement of the Case (SOC) and the January 1998 Supplemental Statement of the Case (SSOC), it did not rely on this test in determining that new and material evidence had not been submitted to reopen the veteran's claim. Moreover, in a subsequent SSOC in October 1999, the RO applied the correct regulations consistent with the holding in Hodge. Accordingly, the Board finds that the citing of this test was harmless error. The evidence of record at the time of the final rating decision included the veteran's service medical records; private medical records from R. H. Marion, M.D. for the period from 1971 to 1982, and reports of VA examinations conducted in August 1970 and September 1983. The service medical records show no complaints, treatment, or abnormalities referable to any headache problems. The veteran was treated for a laceration on his head in May 1970. Two sutures were required to close the laceration, and x-ray studies of the injured area of his skull were negative. On a Report of Medical History for separation from service approximately three weeks later, the veteran denied any history of frequent or severe headaches, or any periods of unconsciousness. No pertinent abnormalities were noted on examination at that time. The veteran reported that he had occasional headaches when examined by VA in August 1970. No pertinent abnormalities were noted on examination at that time. Cranial nerves were grossly intact and cerebellar functions were performed satisfactorily. Palpation of the skull revealed no bony irregularities and the scar in the occipital area of the scalp was difficult to visualize. The diagnosis included small superficial, well-healed scar on the occipital area of the scalp. In September 1990, the regional office granted service connection for residuals of scar, laceration of head. The private medical records from Dr. Marion showed treatment for various medical problems from 1971 to 1982. In July 1971, the veteran was seen for multiple complaints, including headaches, which were associated with possible ulcers or colitis. In September 1996, the veteran reported severe headaches for the past 9 weeks. The diagnosis at that time was tension headaches. The veteran was seen for similar complaints in October 1976. In January 1980, the veteran was seen for headaches associated with flu type symptoms. The September 1983 VA examination reported included a history reported by the veteran of intermittent headaches since a head injury in service. The veteran reported that his headaches became more severe and frequent beginning in 1976. The report indicated that a brain scan and x-ray studies of the veteran's skull in 1976 were negative. The veteran described his headaches as sharp constant pain in both temporal areas radiating back behind his ears. He denied any associated visual problems, nausea, vomiting or vertigo. He also reported two periods of loss of consciousness associated with the headaches. The diagnoses included chronic headaches of undetermined etiology. Based on the above evidence, the RO denied service connection for headaches in March 1984. The veteran and his representative were notified of this decision and did not appeal. The evidence added to the record since the March 1984 rating decision includes VA psychiatric examinations in February 1985, May 1986, August 1995, and October 1995; a transcript of a personal hearing at the RO held in May 1997; a May 1997 letter from Center Medical Associates, Inc., and VA outpatient records for the period from 1983 through 1997. Except for a single VA outpatient record in February 1996, the additional medical records merely show continued treatment for headaches variously diagnosed as tension headaches, migraines, and vascular headaches. This evidence is not new as it is merely cumulative of evidence already of record. The February 1996 VA outpatient record included a history as reported by the veteran of a severe head injury in service with loss of consciousness and a skull fracture, with persistent headaches ever since. The examiner's impression was post-traumatic right temporal parietal headaches. It is evident that the examiner based his opinion on the veteran's self-described history. The service medical records do not show that the veteran's head injury was severe, that he was rendered unconscious or that he fractured his skull. Furthermore, there was no evidence of persistent headaches in service or until many years after service discharge. In fact, the veteran specifically denied any history of headaches or loss of consciousness at the time of his separation examination less than three weeks after the head injury. Therefore, the Board finds that the examiner's opinion was based on an inaccurate history and is not material. See Coghill v. Brown, 8 Vet. App. 342, 345-46 (1995) (Board not clearly erroneous in rejecting medical opinion that conflicted with service medical records); Owens, 7 Vet. App. 7 Vet App 429, 433 (1995) ("Because the appellant's testimony conflicts with his SMRs, the Board's rejection of the doctors' opinions, which were based on [medical] history related by the appellant, is justified."); see also Godfrey v. Brown, 8 Vet. App. 113, 122 (1995). As a whole, the additional medical records do not offer any probative information or medically link the veteran's current headache problems to service. Thus, the additional medical records are not material. The veteran's testimony is basically cumulative in nature and repetitive of facts considered previously, and his lay assertions of medical causation are not competent evidence for the purpose of reopening the claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). In summary, the Board finds that the additional evidence is not new and material, since it does not include competent medical findings linking the veteran's headaches to military service. Accordingly, a basis to reopen the claim of service connection for headaches has not been presented. Defective Hearing Factual Background The service medical records are negative for any complaints, abnormal findings, or diagnosis referable to any ear problems or hearing loss. The veteran's separation examination in June 1970 showed his ears and eardrums were normal. Audiological findings at the frequencies 500, 1,000, 2,000 and 4,000 hertz were all zero, bilaterally. On his original application for VA benefits in June 1970, the veteran made no mention of any ear problems or hearing loss. When examined by VA in August 1970, the veteran made no mention of any ear problems or hearing loss. On examination, his eardrums were clear and there was no evidence of discharge. On an application for VA benefits in January 1980, the veteran made no mention of any ear problems or hearing loss. Copies of private medical records from R. H. Marion for the period from 1971 to 1982 were received in August 1983. The records show no complaints, treatment, or abnormalities referable to any hearing problems. The veteran made no mention of any ear problems or hearing loss when examined by VA in September 1983, February 1985, May 1986, August 1995, or October 1995. At a hearing at the RO in May 1997, the veteran testified that he had a temporary loss of hearing for about two weeks during service when a grenade exploded about 15 to 20 feet away from him. The veteran testified that he told his private physician about his hearing difficulty shortly after service, and that he was referred to a private clinic for testing. He reported that the private physician was no longer in practice, and that he would try to get any records from the group that took over the practice. The veteran testified that he was given a hearing test at the Butler VAMC in 1974, and he was told that he had a hearing loss at that time. Copies of VA medical records for treatment from 1970 to 1997 at Butler VAMC were associated with the claims file in June 1997. An audiological examination in August 1984 showed normal hearing for puretone and speech recognition, bilaterally. The report indicated that the left ear lower frequencies were slightly worse than the other frequencies, but that they were within normal limits. VA medical records for treatment from 1984 to 1997 from Highland VAMC were associated with the claims file in October 1997. Audiometric findings from an examination in March 1996 revealed normal hearing sensitivity in the right ear and mild sensorineural hearing loss in the left ear. Word recognition performance with contralateral masking was worse than expected in the left ear. However, other tests were indicative of normal retrocochlear function, bilaterally. Due to the asymmetrical nature of the veteran's hearing loss in the left ear, he was referred for a neurological consult to rule out acoustic neuroma. Subsequent EEG and MRI were negative. In General: Service Connection Under the applicable criteria, service connection may be established for any disability incurred in or aggravated by active service, or where sensorineural hearing loss is demonstrated to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Additionally, service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The regulations further provide: For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). Regarding the veteran's claims of service connection, the threshold question to be answered is whether a well-grounded claim has been presented. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). 38 U.S.C.A. § 5107 provides that the claimant's submission of a well-grounded claim gives rise to the VA's duty to assist him in the development of facts pertinent to his claim. If he has not presented a well- grounded claim, his appeal must fail, and there is no further duty to assist him in the development of the claim. In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Although a claim need not be conclusive, 38 U.S.C.A. § 5107 provides that the claim must be accompanied by evidence in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim for service connection, this generally means that evidence must be presented which in some fashion links the claimed disability to a period of military service, or to an already service- connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Besides establishing a well grounded claim pursuant to Caluza above, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Analysis Clearly, there is no evidence of chronic hearing loss in service or during the applicable presumptive period. In addition, there is no medical evidence that any current hearing loss is related to reported postservice symptomatology. While the veteran believes that he has defective hearing which is related to service, he has not presented any competent medical evidence to support his lay assertions. This is required under Caluza, discussed above, to establish a well-grounded claim. The veteran, as a layman, is not competent to provide an opinion regarding medical causation or the etiological relationship between any claimed disability now present and service. See Espiritu. ORDER As new and material evidence has not been submitted to reopen the claim of service connection for headaches, the appeal is denied. As a well-grounded claim of service-connection for defective hearing has not been presented, the appeal is denied. Iris S. Sherman Member, Board of Veterans' Appeals