Citation Nr: 0000413 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-19 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from February 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for hearing loss. FINDINGS OF FACT 1. In a July 1991 rating decision, the RO found that the appellant had not submitted new and material evidence to reopen his claim for service connection for hearing loss. The appellant was notified of that decision in August 1991 and did not appeal. 2. None of the evidence received since 1991 is material. CONCLUSIONS OF LAW 1. The July 1991 rating decision that found that new and material evidence had not been submitted to reopen the appellant's claim of entitlement to service connection for hearing loss is final. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 3.160(d) (1999). 2. New and material evidence has not been received, and the appellant's claim for service connection for hearing loss is not reopened. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In November 1982, the appellant filed a claim for service connection for hearing loss. His service medical records showed no complaints of or treatment for decreased hearing acuity. The report of his enlistment examination dated in January 1968 showed that puretone thresholds, in decibels, were as follows upon audiological evaluation: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 20 20 20 25 20 On a Report of Medical History completed in April 1968, he reported having a history of running ears "in past." On the examination, a possible perforation of the right ear drum was noted. On the audiological evaluation in April 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 10 15 LEFT 5 5 10 15 20 On the Report of Medical History completed in conjunction with his separation examination in January 1971, the appellant denied having any running ears or hearing loss. The audiological evaluation showed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 [not given] 15 LEFT 15 15 15 [not given] 15 After his period of active service, the appellant had several years of inactive service. Associated with the claims file are reports of medical examinations conducted in 1972, 1976, and 1980. The 1972 report noted a history of chronic otitis media in the left ear and an old perforated left eardrum. The 1976 report showed that puretone thresholds, in decibels, were as follows upon audiological evaluation: HERTZ 500 1000 2000 3000 4000 RIGHT 20 28 30 [not given] 36 LEFT 20 30 30 [not given] 38 The 1980 report showed that puretone thresholds, in decibels, were as follows upon audiological evaluation: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 25 [not given] 15 LEFT 30 20 20 [not given] 15 In support of his claim, the appellant submitted audiogram reports from the Tennessee Valley Authority. The RO requested his treatment records from S.S. Norvell, M.D. Dr. Norvell indicated in January 1983 that the appellant had undergone an examination for his National Guard service in October 1972, which showed chronic otitis media on the left. In October 1976, he again had chronic otitis media on the left. In February or March 1982 (the first number is somewhat illegible), he had an old perforation of the left eardrum. The diagnosis was chronic otitis media with perforation, left ear. The RO requested the appellant's treatment records from Dr. John Dobbs. Dr. Dobbs indicated in January 1983 that the appellant had undergone a hearing test following right ear surgery by Dr. John Shea. The hearing test report, dated in January 1983, indicated that the appellant had undergone right ear surgery in November 1982. He reported noticing hearing loss while in the service in 1969. He was pending surgery for the left ear in the future. The hearing test showed mild hearing loss on the right beginning at 3000 Hertz, and the left ear had moderate mixed hearing loss. In response to the RO's request for records, Dr. Shea indicated in February 1983 that the appellant had bilateral chronic otitis media. He underwent tympanoplasty on the right in November 1982, and examination showed a central perforation with conductive hearing loss. Upon VA examination in March 1983, the appellant stated that he had had progressive hearing loss since 1969. He had a past medical history of bilateral tympanic membrane perforations. Audiological testing showed normal hearing in the right ear and moderate to severe mixed hearing loss in the left ear. An April 1983 rating decision denied service connection for otitis media, since there was no evidence of this disease during the appellant's military service, and granted service connection for defective hearing in the left ear, based on aggravation during service. The appellant appealed the denial of service connection for otitis media, arguing that he had this condition during service even though it was not documented. A July 1984 Board decision denied service connection for otitis media. In March 1985, the appellant requested that his "claim" be reopened, and he submitted copies of his medical records from Dr. Shea. In June 1985, the RO informed him that this evidence had previously been considered. In June 1986, the appellant stated that he had had bilateral hearing loss upon his separation from service, and he had been treated for this condition at the VA Medical Center in Birmingham since 1982. He requested service connection for hearing loss in the right ear. The RO obtained his VA records for treatment between March and June 1986, which contained no information concerning hearing loss. A July 1986 rating decision proposed to sever service connection for the left ear. It was indicated that all audiometric readings during service were within normal limits, and a diagnosis of hearing loss was not rendered during service or during the presumptive period. The RO stated that it had been clear and unmistakable error to grant service connection for hearing loss in the left ear based on aggravation. In November 1986, the appellant was hospitalized at the VA Medical Center in Birmingham for tympanoplasty of the left ear. Diagnoses included status post traumatic left tympanic membrane perforation, chronic otitis media, status post right tympanoplasty and tympanic membrane perforation, and sensorineural hearing loss, moderate to severe. The appellant reported a history of a traumatic explosion during Vietnam during which he sustained bilateral tympanic membrane perforations. A January 1987 rating decision implemented the proposed severance of service connection for left ear hearing loss. The appellant appealed that decision, arguing that he had bilateral hearing loss upon his separation from service. He attributed his decreased hearing acuity to serving as a door gunner chief in Vietnam. He requested service connection for hearing loss in both ears, as well as otitis media. An April 1988 rating decision denied service connection for right ear hearing loss and found that new and material evidence had not been submitted to reopen the claim for service connection for otitis media. A February 1989 Board decision upheld the severance of service connection for left ear hearing loss. In March 1991, the appellant requested that his claim for service connection for hearing loss be reopened. The RO requested his treatment records from Shea Medical Center, but the request was returned by the United States Postal Service as undeliverable. The RO also requested his recent VA treatment records, but the only record received was a copy of the 1986 hospitalization report. A July 1991 rating decision found that new and material evidence had not been submitted to reopen the claim for service connection for hearing loss. In July 1998, the appellant filed a claim for an "increase" for his service-connected hearing loss. He indicated that he had had surgery in July 1998. The RO obtained his VA records for treatment between December 1997 and August 1998. In July 1998, he underwent left tympanoplasty and ossiculoplasty due to left tympanic membrane perforation. He also underwent several audiometric evaluations in 1997 and 1998, and it was noted that he had hearing loss. The RO also obtained a copy of the 1986 discharge summary and operation report. A September 1998 rating decision denied service connection for hearing loss. With his notice of disagreement, the appellant submitted a statement from Dr. Norvell dated in October 1998. Dr. Norvell indicated that he had seen the appellant in October 1972, and there was evidence of an old perforated left eardrum at that time. There was no way to tell, but the left perforation had been present for at least two or three years. In his substantive appeal, the appellant stated that his service medical records clearly showed that he had problems with his ears during service, as well as significant hearing loss due to his duties as a door gunner on helicopters. He argued that the perforation had occurred in combat on active duty. II. Legal Analysis A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the veteran is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. The appellant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if a NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (1999). In a July 1991 rating decision, the RO found that new and material evidence had not been submitted to reopen the appellant's claim for service connection for hearing loss. A letter from the RO, advising the appellant of that decision and of appellate rights and procedures, was issued in August 1991. The appellant did not disagree with that decision. Therefore, the 1991 rating decision is final. 38 U.S.C.A. § 7105 (West 1991). Although the RO denied entitlement to service connection for hearing loss in the September 1998 rating decision without considering the preliminary issue of whether the appellant had submitted new and material evidence to reopen the claim, the Board has jurisdiction to consider the issue of whether new and material evidence has been submitted because that issue is part of the same "matter" of whether the appellant is entitled to service connection for this disability. Bernard v. Brown, 4 Vet. App. 384, 391 (1993) (interpreting the provision contained in 38 U.S.C.A. § 7104(a) that the Board has jurisdiction to decide "all questions in a matter" on appeal). When a claimant submits a claim for service connection for a disability, the question of whether there is new and material evidence to reopen the claim is implicated where there is a prior final decision regarding that claim. Id. at 392. Although these are two separate questions, they are components of a single claim for service connection. Id. Thus, the issue on appeal has been recharacterized on the first page of this decision. See also Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (Board has a legal duty to consider the requirement of whether new and material evidence has been submitted regardless of the RO's actions); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). When the Board addresses an issue that was not addressed by the RO, consideration must be given to whether the appellant will be prejudiced by the Board's consideration of the issue in the first instance. See 38 U.S.C.A. §§ 5104, 5107(a), 7104(a), and 7105(d)(1) (West 1991); 38 C.F.R. §§ 3.103(a), 3.103(c)(1), 3.103(c)(2), 3.103(d), 19.9, 19.25, 19.29, and 19.31 (1999); see also VAOPGCPREC 16-92 (1992). Therefore, the Board must decide whether the appellant will be prejudiced by its consideration of the issue. Although the relevant statutes and regulations regarding new and material evidence were not included in the statement of the case, the appellant's due process rights are not violated by this Board decision. When the RO denied the appellant's claim of entitlement to service connection for hearing loss in September 1998, it necessarily reviewed all of the evidence of record to reach that decision. Since the Board must review all of the evidence of record in order to determine whether new evidence has been presented and whether it is material to the underlying issue, the appellant is not prejudiced by the Board's consideration of the preliminary issue of whether new and material evidence has been submitted. In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). 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); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998); see also Caluza v. Brown, 7 Vet. App. 498, 504 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). In general, the appellant's evidentiary assertions are accepted as true for the purpose of determining whether a well-grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). The evidence received subsequent to July 1991 is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Since the July 1991 denial of the appellant's claim for service connection for hearing loss, the following evidence has been received: (1) VA hospitalization records dated in November 1986; (2) VA treatment records dated from December 1997 to August 1998; (3) a statement from Dr. Norvell dated in October 1998; and (4) the appellant's contentions. To the extent that the appellant contends that he has hearing loss as a result of his military service, this evidence is not new. He has not submitted any new contentions regarding this condition; he has merely, at best, repeated his prior assertions. This evidence is duplicative of evidence associated with the claims file at the time of the 1991 rating decision and is not new for purposes of reopening a claim. The discharge summary from the appellant's November 1986 VA hospitalization for left tympanoplasty was a copy of the discharge summary obtained in 1986. This evidence is duplicative of evidence associated with the claims file at the time of the 1991 rating decision and is not new for purposes of reopening a claim. The rest of the evidence received since the 1991 rating decision is new in that it was not previously of record. To serve to reopen a claim, it must also be material. Material evidence is that which bears directly and substantially on the merits of each essential element that was a basis for the prior denial. Because the appellant is seeking to establish service connection for hearing loss, material evidence would be significant evidence that bore substantially and directly on the current existence of the claimed disorder and a relationship between it and a disease or injury incurred during his period of military service. The appellant has not submitted material evidence. The additional VA treatment records submitted since the 1991 rating decision showed continued treatment for hearing loss and perforated tympanic membranes. The fact that the appellant has these disorders has been of record since his original claim. The additional VA treatment records do not establish that the appellant's hearing loss is related to an inservice disease or injury. Dr. Norvell's 1998 statement is not so significant that it requires reopening of the appellant's claim and is therefore not material. Dr. Norvell's statement in 1998 that the appellant had a perforated left eardrum in 1972 is not new. Previously of record was a 1972 examination report from the appellant's inactive military service showing diagnosis of an old perforated left eardrum. That evidence had been considered by the RO and the Board and rejected when adjudicating the appellant's claim on the merits. Moreover, Dr. Norvell's 1998 statement has limited, if any, probative value. Accepting that the appellant had a perforated left eardrum in 1972, Dr. Norvell clearly stated that there was no way to tell how long it had been there. The following statement, that it had been there for at least 2-3 years, amounted to no more than speculation. Such a medical opinion is too speculative to warrant reopening this claim. Cf. Bostain v. West, 11 Vet. App. 124 (1998). There remains a lack of competent medical evidence in this case showing that the appellant incurred hearing loss during his period of military service. There has been no new evidence submitted indicating that he was treated for hearing loss, or any other chronic ear disorder, during active service, or showing that any hearing disorder diagnosed after his period of service was related to his military service in any manner. The appellant argues that his hearing loss was incurred as a result of combat service. The provisions of 38 U.S.C.A. § 1154(b) specifically allow combat veterans, in certain circumstances, to use lay evidence to establish incurrence of a disease or injury during service. See, e.g., Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); Chipego v. Brown, 4 Vet. App. 102, 105 (1993). Even if the Board were to conclude that the appellant engaged in combat with the enemy, see Zarycki v. Brown, 6 Vet. App. 91 (1993), there still must be medical evidence tending to show that a nexus, or link, between an inservice disease or injury and the post- service hearing loss is plausible. See Wade v. Brown, 11 Vet. App. 302, 304-5 (1998); see also Arms v. West, 12 Vet. App. 188 (1999). As discussed above, there is no such evidence in this case. Therefore, the allegations of combat service alone are not so significant that they require reopening this claim. Moreover, the appellant had previously alleged that he incurred hearing loss as a result of his service as a door gunner in Vietnam, and this was considered in the prior denials of his claim. The Board is cognizant of the appellant's own statements to the effect that he has hearing loss that is related to his military service. However, the evidence does not indicate that he possesses medical expertise, and he is not competent to render an opinion on a matter involving medical knowledge, such as diagnosis or causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The evidence received subsequent to July 1991 is not new and material and does not serve to reopen the appellant's claim for service connection for hearing loss. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). ORDER As new and material evidence has not been received to reopen the appellant's claim for service connection for hearing loss, the claim is not reopened, and the appeal is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals