BVA9500976 DOCKET NO. 93-16 085 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from September 1941 to August 1942 and from June 1945 to June 1946. He was a prisoner of war (POW) of the Japanese government from April to August 1942. In December 1985, the Board of Veterans' Appeals (Board) denied service connection for defective hearing. In 1992, the veteran requested reopening of the claim for service connection for hearing loss. This appeal is from an August 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, that denied the requested benefit. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has bilateral hearing loss due to left ear damage from weapons noise and explosions during his World War II service, or as a result of being struck in the left ear by a rifle butt while a POW. He requests service connection for bilateral hearing loss. His representative requests a remand of the case to the RO in order to have the veteran undergo VA audiometric examination to determine the etiology of his current hearing loss. 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 files. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that there is no new and material evidence to reopen the veteran's claim for service connection for bilateral hearing loss. FINDINGS OF FACT 1. In December 1985, the Board denied service connection for defective hearing. 2. Evidence submitted since the prior Board decision, and considered in conjunction with the 1992 application to reopen the claim for service connection for bilateral hearing loss, is cumulative in nature or, when viewed in the context of all the evidence of record, does not raise a reasonable possibility of a change in the prior adverse decision. CONCLUSION OF LAW The additional evidence received subsequent to the Board decision of December 1985, denying service connection for defective hearing, is not new and material; the claim is not reopened; and the prior Board decision remains final. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran first had recognized active service in the Philippines, serving with the United States Armed Forces of the Far East (USAFFE), from September 1941 to August 1942, which included being a POW from April 1942 to August 1942. There are no medical records from this period of service. Shortly after this period of service the veteran was hospitalized, from August to September 1942, for treatment of malaria, bronchitis, and secondary anemia. Medical records from this admission show examination of the ears was negative, and there was no mention of any hearing problems. The veteran again served on active duty from June 1945 to June 1946. Service medical records show that he underwent medical examination in June 1945. There were no ear abnormalities, and hearing was normal, 10/10, bilaterally. On a medical examination in November 1945, there were no ear abnormalities, and hearing was normal, 15/15, bilaterally. A January 1946 service document, a chronological record of wounds and illnesses incurred from December 1941 to date of return to military control, shows no injury or illness other than malaria. A report of the veteran's medical examination for discharge from service in June 1946 shows no ear abnormalities, and hearing was normal, 15/15, bilaterally. The veteran reported no significant diseases, wounds or injuries in service. Numerous claims, supporting statements, and medical records, dated for years after service, refer to various medical problems but contain no reference to any hearing problems. The veteran underwent VA examination in January 1955. He reported no complaints concerning hearing loss. On examination of his ears it was commented he had fairly good hearing. Hearing loss was not found. Subsequently dated medical and other records, for years thereafter, are devoid of references to hearing problems, and many general medical examinations during this time found the ears to be normal. In an October 1972 statement, the veteran asserted that he had left ear hearing loss (and various other ailments) as a result of his POW experiences; and at a November 1972 VA social and industrial survey he reported he was hard of hearing. In a number of statements in 1984 and 1985, the veteran again asserted he had various ailments, including left ear hearing loss, as a result of POW experiences. The veteran underwent a VA protocol examination for former POWs in January and February 1985. He reported partial deafness of the left ear since 1942. He reported experiencing deafness which he attributed to his POW captivity, including beatings, and to enemy bombing during World War II. A healed perforation of the left ear was found. Auditory acuity was noted to be abnormal by conversational testing. The veteran testified at a personal hearing at the RO in May 1985. His testimony was to the effect that he had defective hearing due to injury inflicted on his head from a gun butt by the enemy while a POW. In December 1985, the Board, considering the above summarized evidence, denied service connection for defective hearing. Evidence added to the record since the 1985 Board decision includes numerous written statements by the veteran asserting that his hearing loss, particularly as to the left ear, was due to his service experiences, including POW beatings and exposure to noise and explosions of bombs and artillery during World War II. VA and private medical reports show that the veteran received treatment and underwent evaluations for defective hearing in 1990 and 1991. A medical report from Edward G. Fisher, M.D., shows that the veteran underwent audiometric evaluation in October 1990, and this showed bilateral hearing loss. A VA audiometric consultation in December 1990 noted that the veteran gave a history of decreased hearing since 1941 and exposure to 105-millimeter howitzer fire. He reported that his hearing loss had worsened gradually and that he had tinnitus of the left ear and dizziness (true vertigo) associated with frontal headaches. Following examination, the diagnosis was sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. VA reports of his treatment in 1991 show that he was issued hearing aids for both ears. He underwent VA audiometric testing in June 1991 that showed bilateral sensorineural hearing loss. In August 1992, the veteran requested reopening of his claim for service connection for hearing loss. The veteran underwent audiometric testing in December 1992 at Veterans Memorial Medical Center, and this showed bilateral profound sensorineural hearing loss. The veteran testified at a personal hearing at the RO in December 1992. He stated that he was exposed to a bomb explosion in 1941 and that he was hit in the left ear by a rifle butt while a POW during World War II, and that such incidents caused his hearing loss. The veteran testified at a personal hearing at the RO in Los Angeles, California, in December 1993. He stated that he had bilateral hearing loss due to loud artillery fire in December 1941 and being hit in the left ear by a rifle butt while a POW during World War II. B. Legal Analysis Initially, the Board notes that the veteran's representative requests a remand of the case in order to have the veteran undergo audiometric examination to determine the etiology of his current bilateral hearing loss. However, the evidence indicates that the veteran has undergone recent audiometric testing, the record appears complete, and there is no further VA duty to assist him in his application to reopen his previously denied claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(a). In order to establish service connection for a disability, the evidence must show that it resulted from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Sensorineural hearing loss will be presumed to have been incurred in service if it became manifest to a degree of 10 percent within one year from date of termination of active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ .3.307, 3.309. The decision of the Board in December 1985, denying service connection for defective hearing, is final with the exception that the veteran may reopen his claim if new and material evidence is submitted. 38 U.S.C.A. § 5108, 7104. The question now presented is whether new and material evidence has been submitted, since the Board's adverse December 1985 decision, to permit reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative to the issue at hand and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156(a); Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence of record at the time of the Board's decision in 1985 consisted of service medical records that did not show the presence of hearing loss; VA and other medical records that did not show the presence of any hearing problems until many years after the veteran's discharge and did not relate any post-service hearing problem to an incident of active service; and statements and hearing testimony from the veteran to the effect that he had sustained defective hearing in service due to being hit in the left ear by a rifle butt while a POW during World War II or due to exposure to explosions and noise from weapons during service. Since the Board's decision in 1985, VA and private medical reports have been submitted showing that the veteran underwent audiometric evaluations and treatment for bilateral hearing loss in the early 1990's. This evidence is cumulative of information available at the time of the 1985 Board decision, which showed hearing loss long after service; it is thus not new evidence. It is also not material evidence, because it does not connect the veteran's current hearing loss with remote events of service. Cox v. Brown, 5 Vet.App. 95 (1993). The report of VA audio- metric consultation in December 1990, noting a history of hearing loss since 1941 after being exposed to 105-millimeter howitzer fire, is not material evidence because it is only a recitation of the veteran's statements, rather than medical evidence supporting a linkage between the disability and service. Reonal v. Brown, 5 Vet.App. 458 (1993). Since the 1985 Board decision, the veteran also provided additional written statements and hearing testimony to the effect that he has bilateral hearing loss due to exposure to loud bomb and artillery fire in service and being hit by a rifle butt on the left ear while a POW during World War II, but this evidence is repetitious of his statements and testimony made prior to the 1985 Board decision; it is not new evidence. Reid v. Derwinski, 2 Vet.App. 312 (1992). The additional statements and testimony also do not constitute material evidence since, as a layman, the veteran has no competence to offer a medical opinion on the etiology of his current hearing loss. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As no new and material evidence has been submitted since the 1985 Board decision, the claim for service connection for bilateral hearing loss is not reopened, and the 1985 Board decision remains final. ORDER The application to reopen a claim for service connection for bilateral hearing loss is denied. L. W. TOBIN 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.