Citation Nr: 0000741 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-08 862A ) 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 for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from April 1953 to April 1957. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a Member of the Board sitting in Montgomery, Alabama, in October 1999. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. Service connection for the appellant's bilateral hearing loss was denied by the RO in April 1967. In October 1984 the Board denied service connection for hearing loss. In August 1985, an enlarged panel, consisting of two sections of the Board, reviewed the October 1984 decision pursuant to a request for reconsideration made by the appellant in November 1984. The panel affirmed the Board's decision, denying service connection for bilateral hearing loss. 2. The evidence associated with the claims file since the 1984 and 1985 Board decision is not so significant that it must be considered in order to fairly decide whether the appellant is entitled to service connection for bilateral hearing loss. CONCLUSION OF LAW 1. The Board's 1984 and 1985 decisions denying service connection for bilateral hearing loss are final. 38 U.S.C.A. §§ 5104, 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence has not been submitted to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), (c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue before the Board is whether the appellant has submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss. The Board denied the appellant's claim in August 1985 on the basis that the record did not show a nexus between the current disorder and any incident or incurrence in service. At that time, the Board considered service medical and personnel records; an April 1967 VA examination; two audiometric examination reports submitted by the appellant, dated in June 1967 and August 1982; lay statements from a fellow serviceman and from Rev. Fletcher; and various articles and reports concerning the hazards of exposure to jet noise, and the relationship between acoustic trauma and defective hearing. The Board concluded that there was no evidence of a nexus between the appellant's hearing disorder, first diagnosed ten years after service, and any incident or event in service. It is noted that this determination was first reached by the Board in October 1984, and confirmed on reconsideration in August 1985. When the Board denies a claim, the denial becomes final unless the Chairman determines that reconsideration is warranted, or if another exception to finality is applicable. 38 U.S.C.A. §§ 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). In the present case, the appellant could not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999), as the notice of disagreement was prior to 1988. The decision was not otherwise challenged, and accordingly, the Board's 1984 and 1985 decisions are final. A final decision may not be reopened and readjudicated by the VA, except on the basis of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). 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 and in connection with evidence previously assembled is so significant that it must be considered to decide the merits of the claim fairly. 38 C.F.R. § 3.156(a) (1999). A three-pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1999). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Second, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and third, a determination must be made as to whether the evidence "is so significant that it must be considered in order to decide fairly the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, 155 F.3d at 1359. Upon reopening the claim, a determination must then be made as to 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) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). With the above-cited facts for consideration, the Board will not reopen the claim. When read together with the appellant's contentions on appeal, the Board concludes that the new evidence submitted or associated with the record since the August 1985 decision is not so significant that it must be considered in order to decide the merits of the claim fairly. The letter from G. W. Holmes, clinical audiologist, and the January 1998 audiogram from Auburn University do not in any manner relate the appellant's problems with his hearing to his military service during World War II. Although the evidence is "new" in the sense that it was not of record at the time of the prior denial of this claim, it is not probative -- the evidence simply does not provide a medical link showing that the treatment for hearing loss years after service was attributable to an incident or event of the appellant's military service. Hence, this evidence is essentially cumulative of evidence previously before the Board in 1985. Accordingly, it provides no basis to reopen this claim. With respect to the above, the Board finds that the appellant's pleadings and statements, to include his hearing testimony of October 1999, essentially reiterate his previously considered contentions with respect to the claimed disability, and as such are not considered to be new. See Reid v. Derwinski, 2 Vet. App. 312 (1992). To the extent that the appellant contends that he has a disability that was incurred in service, such statements, being in effect lay speculation on medical issues involving the presence or etiology of a disability, are not probative to this claim and, therefore, are deemed to be not material. See Pollard v. Brown, 6 Vet. App. 11 (1993) (pursuant to Espiritu v. Derwinski, 2 Vet. App. 492 (1992), lay testimony attempting to diagnose frostbite or arthritis in service held not to be competent evidence for such purpose, and thus material); see also, Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). Accordingly, the Board concludes that the appellant has not submitted evidence which is new and material such as to form the basis to reopen and review the previously denied claim seeking entitlement to service connection for hearing loss. VA is obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of the kind of evidence needed to reopen a previously denied claim. See Graves v. Brown, 8 Vet. App. 522 (1996). However, this obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995), which depends further upon VA having notice that relevant evidence may exist or could be obtained. See also Franzen v. Brown, 9 Vet. App. 235 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration). However, in this case, there is nothing in the record that suggests the existence of available evidence that might provide a basis to reopen one or more of the aforementioned claims. Thus, as the Secretary's obligation under section 5103(a) has been complied with, to the extent possible, further development by VA is not required or indicated at this time. ORDER New and material evidence sufficient to reopen the claim for service connection for bilateral hearing loss not having been submitted, the benefits on appeal remain denied. MICHAEL D. LYON Member, Board of Veterans' Appeals