BVA9507428 DOCKET NO. 93-12 344 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as depression as secondary to a service-connected bilateral foot disorder. 2. Whether new and material evidence has been submitted to reopen the veteran's claim seeking entitlement to service connection for hearing loss of the right ear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had unverified duty as a reservist from June to October 1981 and active military service from December 1982 to December 1986. The veteran has not alleged any disability related to his period of service in the reserves. The veteran was originally granted service connection for a callous formation of the right foot, with metatarsalgia, by a rating decision in April 1987. In May 1992, the Huntington, West Virginia Regional Office ( hereinafter RO) amended its earlier rating decision to reflect a bilateral foot disorder. By a rating decision in February 1988, the RO denied service connection for otitis of the right ear and bilateral hearing loss. A Board of Veterans' Appeals (hereinafter the Board) decision in April 1989 upheld the denial. This instant appeal arises from rating actions of September 1991 and May 1992 which held, respectively, that service connection was not warranted for depression and new and material evidence had not been submitted by the veteran to reopen his claim for service connection for chronic otitis and hearing loss of the right ear. In view of the action taken below on this issue, consideration of the issue of service connection for a psychiatric disorder is deferred. As well, it is noted that the service representative in his February 1994 presentation has expressed disagreement with the February 1993 determination denying entitlement to service connection for tinnitus. The question of whether there has been a timely filed notice of disagreement with respect to this determination is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts, essentially, that new and material evidence sufficient to reopen his claim for service connection for chronic otitis and hearing loss of the right ear has been submitted. In this regard, he contends that following acoustic trauma in service, he developed an ear infection and right ear hearing loss which has persisted to the present. 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 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic otitis and hearing loss of the right ear. FINDINGS OF FACT 1. Service connection for chronic otitis and hearing loss of the right ear was denied by the Board in a decision of April 1989. 2. The evidence added to the record subsequent to the April 1989 Board decision includes Department of Veterans Affairs (hereinafter VA) outpatient treatment records dated from January 1990 through September 1992 and testimony presented by the veteran at a hearing conducted in September 1992. 3. Evidence received since the April 1989 Board decision, specifically the veteran's testimony at the September 1992 hearing, is relevant and probative and must be considered in order to decide the claim on the merits. CONCLUSIONS OF LAW 1. The April 1989 Board decision denying service connection for chronic otitis and hearing loss of the right ear is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. Additional evidence received since the claim for service connection for chronic otitis and hearing loss of the right ear was denied in April 1989 is both new and material; thus the claim is reopened and must be considered on the basis of all the evidence of record, both old and new. 38 U.S.C.A. §§ 1131, 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the Board denied the veteran's claim for service connection for chronic otitis and hearing loss of the right ear in April 1989. Under applicable law and VA regulations, that decision is final, and the veteran's claim may not be reopened and reviewed unless new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New and material evidence is evidence 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). Further, "material evidence is relevant and probative of the issue at hand," and in addition, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171 (1991). The pertinent evidence available prior to the Board's 1989 decision consisted of the veteran's service medical records, VA outpatient treatment records, and the report of VA examination in October 1988. The service records show that, in July 1983, the veteran received treatment for a right ear ache. It was recorded that there was a yellowish-colored discharge from the veteran's right ear and infection of the tympanic membrane. There was also mild tenderness in the ear canal. The assessment was of otitis. The remaining service records include no findings of otitis or hearing loss. On the report of medical history completed at the time of his separation examination in October 1986, the veteran denied any hearing loss. VA outpatient records demonstrate that the veteran requested a hearing test in January 1988. Physical examination of the veteran's right ear revealed that the tympanic membrane was pearly gray and Weber and Rinne tests were within normal limits. Following an audiological evaluation later in January 1988, an examining VA audiologist noted the presence of very slight to mild sensorineural hearing loss in the right ear. On the occasion of the October 1988 VA examination, it was noted that both the tympanic membrane and external canal of the right ear were clear. The examining VA physician further noted the absence of any hearing loss of the right ear. Based upon this evidence, the Board denied service connection for chronic otitis and hearing loss of the right ear in a decision of April 1989. The Board found that the otitis manifested during service was acute and transitory in nature and resolved prior to separation from active duty. The Board also noted that at the time of the veteran's separation from service, his right ear had been clinically evaluated as normal. The evidence received after the Board's 1989 decision included VA outpatient treatment records dated from January 1990 through September 1992. The medical records reflect the veteran's complaints in January and February 1990 of intermittent ear aches and diagnostic findings of otitis media of the right ear. The records further show that a similar finding was made in September 1992. Additional evidence of record consists of the veteran's testimony at the September 1992 hearing on appeal. On that occasion, the veteran stated that his right ear problems began following his exposure to acoustic trauma during service. According to the veteran, he was present at a tank gunnery when a tank beside him fired unexpectedly. He also stated that he continued to experience right ear infections and hearing loss following his initial treatment during service. The United States Court of Veterans Appeals has held that in determining whether new and material evidence justifies reopening of a claim, the evidence should be presumed to be credible. Once the claim is reopened, the presumption as to the credibility of the evidence no longer applies. Justus v. Principi, 3 Vet.App. 510 (1992). With respect to the veteran's claim for service connection for chronic otitis and hearing loss of the right ear, we do find that new and material evidence has been submitted for the purpose of reopening his claim. The testimony given during the September 1992 hearing is contradictory with the service medical records which fail to show any defect of the right ear at the time of separation. However, this testimony provides an explanation of the etiology of the veteran's right ear disorders and continuing symptomatology. As such, this evidence is both relevant and probative and is not merely cumulative of other evidence of record. Thus, the evidence satisfies the regulatory definition of new and material, and must be considered in order to fairly decide the merits of the veteran's claim. 38 C.F.R. § 3.156(a). Accordingly, we find that the claim is reopened on the basis of new and material evidence, and the veteran's claim must be considered in light of all the evidence, both old and new, with evaluation of the probative value of the evidence. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic otitis and hearing loss of the right ear, and to this extent the appeal is granted but is subject to the following action. REMAND In view of the above determination that the veteran's claim seeking entitlement to service connection for chronic otitis and hearing loss of the right ear is reopened, the RO must be provided an opportunity to conduct de novo review of the reopened claim, based on the evidence in its entirety. Bernard v. Brown, 4 Vet.App. 384 (1993). Consistent with the VA's duty to assist the veteran in the development of facts pertinent to his well-grounded claim, pursuant to 38 U.S.C.A. § 5107(a), the case is REMANDED for the following action: The RO should reevaluate the veteran's claim seeking entitlement to service connection for chronic otitis and hearing loss of the right ear on a de novo basis. If the determination remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case. The veteran should be afforded the requisite 60 days to respond to the supplemental statement of the case. 38 C.F.R. § 20.302(c) (1993). Thereafter, the case should be returned to the Board for further appellate consideration, if in order. By its REMAND, the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted. The purpose of this REMAND is to ensure due process of law. As noted above, consideration of the other issue developed for appellate review, entitlement to service connection for a psychiatric disorder, claimed as depression, as secondary to a service-connected bilateral foot disorder, is deferred pending the development requested above. N. R. ROBIN 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. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.