Citation Nr: 0003194 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-07 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from September 1941 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1993 and November 1993 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 1998, United States Court of Appeals for Veterans Claims granted a joint motion to remand this case to the Board for further action. In turn, the Board, in July 1998, remanded the case to the RO for additional development. The case returns to the Board following the RO's actions. FINDINGS OF FACT 1. The RO denied service connection for bilateral defective hearing in a December 1977 rating decision. Although the RO notified the veteran of that decision, he did not appeal. 2. The evidence submitted after the December 1977 rating decision is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran currently has left ear hearing loss that was incurred as the result of a left mastoidectomy performed in service. 4. There is no competent medical evidence of a nexus between the veteran's right ear hearing loss and his period of active duty service. 5. There is no competent medical evidence of a nexus between the veteran's skin disorder and his period of active duty service. CONCLUSIONS OF LAW 1. The December 1977 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). 2. New and material evidence has been submitted since the December 1977 rating decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's left ear hearing loss was incurred during active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 4. The veteran's claim of entitlement to service connection for right ear hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 5. The veteran's claim of entitlement to service connection for a skin disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The RO denied service connection for bilateral defective hearing in a December 1977 rating decision. Although the RO notified the veteran of that decision, he did not appeal. Therefore, the RO's decision of December 1977 is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "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). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The evidence of record at the time of the December 1977 rating decision included available service medical records, a statement from the National Personnel Records Center (NPRC), lay statements, and records dated in August and September 1977 from the VA medical center in Allen Park, Michigan. The RO denied the veteran's claim because there was no evidence showing that the veteran's bilateral hearing loss was related to service. Since the December 1977 rating decision, the RO has received voluminous evidence, including reports of various VA examinations, additional VA medical records, private medical records and statements, additional lay statements, and testimony from the veteran and his spouse in April 1995. Considering the evidence submitted since the December 1977 rating decision, the Board finds, as did the RO, that there is new and material evidence to reopen the veteran's claim. Generally, the testimony from the veteran and his spouse, as well as the spouse's May 1999 affidavit, provides additional evidence to the incurrence of hearing problems in service. The Board finds that this evidence is, relative to the evidence of record at the time of the December 1977 rating decision, new and material under 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. 38 U.S.C.A. § 5108. Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including other organic diseases of the nervous system). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA's duty to assist a veteran in developing facts pertinent to his claim is not triggered until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). 1. Bilateral Hearing Loss As discussed above, the Board determined that there is new and material evidence to reopen the veteran's claim for service connection for bilateral hearing loss. Accordingly, the Board must now consider the claim based on all the evidence of record. The Board finds that the veteran has had ample opportunity to present evidence and argument on this matter, such that he will not be prejudiced by the Board's present consideration of his claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Initially, the Board finds that the veteran's claim for left ear hearing loss is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Initially, the Board notes that there is no evidence to show that left ear hearing loss was manifest to a compensable degree within a year from service. Therefore, the presumption of in-service incurrence does not apply. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). Considering all the evidence of record, the Board finds that, resolving doubt in the veteran's favor, the evidence supports entitlement to service connection for left ear hearing loss. The Board observes that the available service medical records are obviously incomplete. It is presumed that the service medical records have been destroyed. Where service medical records are presumed destroyed, this duty is heightened and includes the obligation to search for alternate medical records. Cuevas, 3 Vet. App. at 548. Moreover, where service medical records have been destroyed or are unavailable, the Board has a heightened duty to provide and explanation of reasons or bases for its findings. O'Hare vs. Derwinski, 1 Vet. App. 365, 367 (1991). Correspondence from NPRC dated in June 1998 indicates that the veteran's complete records cannot be reconstructed. A search for records from the Surgeon General's Office yielded no information as to the alleged in-service left ear surgery. Finally, a search of VA medical records found no evidence of treatment prior to 1977. The veteran currently suffers from left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. A September 1977 VA medical record relates a physician's opinion that the veteran's had moderate left ear conductive hearing loss due to a mastoidectomy. Associated records indicate that the veteran related a history of having a left mastoidectomy in service in 1944. Statements from the veteran's mother and brother received in October 1977 relate that the veteran had left ear surgery in service. The veteran and his spouse have consistently asserted that he underwent left ear surgery in service. An August 1990 medical record from Harper Hospital noted a left retromastoid incision, healed. Finally, the report of an October 1992 VA ear, nose, and throat consultation notes the alleged history of left mastoidectomy and shows that there is a well healed post auric scar. Taking all of the evidence of record into consideration, the Board finds that there is an even balance of evidence both for and against the veteran's claim. Thus, the Board resolves doubt in the veteran's favor and finds that the evidence supports entitlement to service connection for left ear hearing loss. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). With respect to the veteran's claim for right ear hearing loss, the Board notes that there is right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. However, there is no evidence that the hearing loss was manifest to a compensable degree within one year of separation from service, such that the presumption of in-service incurrence is not applicable. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). Moreover, there is no competent medical evidence of a nexus between the right ear hearing loss and service. Lacking such evidence, the claim is not well grounded. Epps, 126 F.3d at 1468. Moreover, the Board observes that the veteran essentially has not even asserted any in-service incurrence of the right ear hearing loss. 2. Skin Disorder The veteran seeks service connection for a skin disorder. VA medical records show that the veteran experienced chronic seborrheic dermatitis. He asserts that he had had skin problems since service in New Guinea. For purposes of determining whether the claim is well grounded, the Board assumes that his assertion is true. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, in this case, the Board finds that the claim is not well grounded because there is no competent medical evidence of a nexus between the skin disorder and service. The Board acknowledges that the veteran's physicians have noted in medical records the veteran's assertions concerning the origins of his skin disorder. However, medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The fact that the veteran asserts to have experienced continuous symptoms since service also fails to establish a well grounded claim. That is, the provisions of 38 C.F.R. § 3.303(b) do not relieve a veteran of the burden of providing a medical nexus in order to establish a well grounded claim. Rather, a veteran diagnosed with a chronic disorder must still provide a medical nexus between the current disorder and the putative continuous symptomatology. Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60, 66 (1999). Finally, the opinion of the veteran, his spouse, or any other lay person as to the etiology of the skin disorder is not sufficient to establish a well grounded claim. A lay person is competent to describe symptoms, particularly those amenable to lay observations. However, a lay person is not competent to offer evidence that requires medical knowledge, such as a determination of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Summary Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for right ear hearing loss or for a skin disorder. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for right ear hearing loss or a skin disorder, he should submit competent medical evidence that shows that each current disorder is in some way related to service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. ORDER Subject to the laws and regulations governing the payment of monetary benefits, entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a skin disorder is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals