Citation Nr: 0007088 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-38 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for right ear disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from July 1943 to November 1945. This case was remanded by the Board of Veterans' Appeals (Board) in April 1998 to the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, for additional development. The case is again before the Board for adjudication. A May 1999 rating decision denied special monthly pension, and the veteran was notified of this action later in May 1999. The veteran's notice of disagreement with this decision was received by VA in June 1999, and a statement of the case was issued in August 1999. In a cover letter sent with the statement of the case, the veteran was informed of the requirement that he submit a substantive appeal if he desired appellate review with respect to this issue. Thereafter, no written communication was received from the veteran and the issue was not addressed in the statements submitted by the veteran's representative. Therefore, the Board has concluded that the veteran is not currently seeking appellate review with respect to this issue. FINDINGS OF FACT 1. Service connection was denied for right ear disability in an unappealed rating decision dated in December 1988. 2. Evidence which is not cumulative or redundant of evidence previously of record and which is so significant that it must be considered to fairly decide the merits of the previously denied claim has not been received since the December 1988 rating decision. CONCLUSION OF LAW New and material evidence to reopen the veteran's claim for service connection for right ear disability has not been received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 which provides that if 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. New and material evidence is evidence not previously submitted to 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 the 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). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, at 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). Service incurrence of organic disease of the nervous system may be presumed if it is manifested to a compensable degree within one year after the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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). Service connection was denied for right ear disability by rating decision dated in December 1988 because right ear disability was not shown by the evidence of record. The veteran was notified of the decision later in December 1988 and did not file a timely appeal. Evidence on file at the time of the December 1988 rating decision consisted of the veteran's service medical records, private treatment records beginning in March 1967 to April 1980, VA examination reports dated in October 1970 and March 1976, VA hospital reports dated in March and December 1975, and a January 1983 VA aid and attendance examination report. The veteran's service medical records reveal that he complained of pain in his left ear in August 1944, and acute otitis media and acute otitis externa of the left ear were diagnosed. It was also noted in August 1944 that the veteran had had an injury to his right ear due to an accident, with no discharge. His hearing in August 1944 was 15/15, bilaterally. It was reported in August 1944 that the veteran was to be sent to the Station Hospital for a myringotomy and further treatment. Station Hospital records later in August 1944 do not indicate any surgery. On discharge examination in November 1945, hearing was 15/15, bilaterally, for whispered and spoken voice; and no ear abnormality was found. The postservice private and VA medical records on file at the time of the December 1988 rating decision do not contain any complaints, findings, or diagnosis of right ear disability. In fact, VA examinations in October 1970 and March 1976 disclosed that the veteran's ears were normal with no hearing loss noted. Evidence received by VA after the December 1988 rating decision consists of VA outpatient records beginning in January 1986, VA hospital records beginning in May 1986, the transcript of the veteran's February 1997 personal hearing at the RO, VA examination reports dated in February 1999, and statements by and on behalf of the veteran. The evidence received since the December 1988 rating decision reveals that the initial postservice evidence of right ear disability was in November 1986, when the veteran complained of decreased hearing and tinnitus and audiological examination showed bilateral sensorineural hearing loss. It was also noted in November 1986 that electroacoustic impedance revealed normal functioning middle ears. Bilateral sensorineural hearing loss and tinnitus were also noted in subsequent VA outpatient records. On ear, nose, and throat examination in September 1996, it was reported that an MRI was negative; the assessment was no acoustic neuroma. The veteran testified at his RO hearing in February 1997 that although he was not sure which ear was operated on in service, his right ear bothered him now; that he was exposed to a lot of noise in service; that he has drainage into his sinuses; and that he first went to VA for his ears about ten years earlier. On VA ear examination in February 1999, the diagnoses were tinnitus aurium, bilateral, constant; history of otitis media of the left ear and otitis externa of the right ear, not evident on examination; history of hearing loss, see audiology report; and vertigo, cause unknown, unrelated to ear condition. On VA audiology examination in February 1999, there were normal eardrum movement in the right ear and a very flaccid left tympanic membrane. Audiology testing showed bilateral sensorineural hearing loss, and it was noted that the veteran also had bilateral tinnitus. The examiner noted that it was the veteran's left ear that was treated in service and concluded that there was insufficient evidence that the veteran has any current middle ear condition that is related to any ear treatment in service. Much of the medical evidence received since the December 1988 rating decision provides no information relevant to the veteran's right ear. The initial medical evidence of right ear disability was not until November 1986, which is many years after service discharge, when bilateral sensorineural hearing loss and tinnitus were diagnosed. Additionally, the evidence added to the record since the December 1988 rating decision does not contain any medical opinion linking the veteran's current right ear disability to service. In fact, the VA audiological examiner in February 1999 noted that it was the veteran's left ear that was treated in service and that there is no evidence of any chronic or recurrent middle ear condition due to service. Therefore, the medical evidence added to the record since the December 1988 rating decision is not material. In his statements the veteran has expressed his belief that he has a right ear disability due to acoustic trauma during service. His lay assertions of medical causation cannot serve as a predicate to reopen the claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Therefore, the claim for service connection for right ear disability has not been reopened. ORDER The veteran's application to reopen his claim for service connection for right ear disability is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals