BVA9502754 DOCKET NO. 93-07 494 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral defective hearing. (The issue of whether the veteran is entitled to nonservice- connected pension benefits based on income is the subject of a separate decision.) ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to December 1952. In February 1959, the Board of Veterans' Appeals (Board) denied service connection for bilateral defective hearing on the basis that the disability was not shown to have been incurred during active military service or to have become manifest to a degree of at least 10 percent within one year after his separation from active duty. The veteran was notified of this decision in the same month. Subsequently, in September 1973, the Department of Veterans Affairs Regional Office in Chicago, Illinois (RO), denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral defective hearing on the basis that the additional evidence submitted was not new and material to reopen his claim. In December 1985 and March 1991, the Board also denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral defective hearing on the basis that the additional evidence submitted was not new and material to reopen his claim. The present appeal arises from a September 1992 rating decision of the RO which again denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral defective hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in not granting service connection for bilateral defective hearing. He continues to claim that he incurred this disability during active military service. Specifically, he claims that, due to his in-service responsibilities as a gunner on a 75 millimeter recoilless rifle and due to being surrounded by artillery fire during his combat duty, he incurred a bilateral hearing loss during service. In addition, the veteran asserts that his bilateral hearing loss has now worsened. Consequently, he maintains that he is entitled to service connection for bilateral defective hearing. 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 not been submitted to reopen a claim of entitlement to service connection for bilateral defective hearing. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In February 1959, the Board denied the veteran's claim of entitlement to service connection for bilateral defective hearing. 3. The evidence submitted since the Board's February 1959 decision, when viewed in the context of all of the evidence of record, is either duplicative of evidence previously considered or does not raise a reasonable possibility of changing the outcome. CONCLUSIONS OF LAW 1. The decision of the Board in February 1959 denying the veteran's claim of entitlement to service connection for bilateral defective hearing is final. 38 U.S.C.A. §§ 5107, 7104(b) (West 1991). 2. Since the Board's February 1959 decision, new and material evidence has not been received, and the veteran's claim has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the veteran's claim is well-grounded and that it has been appropriately developed by the RO. 38 U.S.C.A. § 5107. In February 1959, the Board denied the veteran's claim of entitlement to service connection for bilateral defective hearing on the basis that the disability was not shown to have been incurred during active military service or to have become manifest to a degree of at least 10 percent within one year after his separation from active duty. The Board considered the evidence that was of record at the time of this decision. Specifically, the Board reviewed the veteran's testimony, the report of the July 1958 VA examination, and the service medical records. The veteran contended that he incurred a hearing loss disability as a result of his in-service duties as a gunner of a 75 millimeter recoilless rifle and as a result of being constantly surrounded by firing guns. Despite these contentions, however, the Board determined that the medical evidence of record did not support the veteran's claim. As the Board correctly noted, although the service medical records showed that the service medical records indicated that in June 1951 the veteran may have had vertigo, these records were negative for any evidence of treatment for, or a finding of, bilateral defective hearing. Furthermore, the separation examination demonstrated that the veteran's ears were normal and that auditory acuity for the whispered voice was reported as being 15/15 bilaterally. The Board also noted that the first evidence of a hearing loss disability was the VA examination conducted in July 1958, at which time the veteran was diagnosed to have severe bilateral high tone deafness. However, the Board concluded that there was no evidence from the examination report or from any of the evidence of record that this hearing loss was related to the veteran's active duty. Consequently, the Board denied the veteran's claim of entitlement to service connection for bilateral defective hearing. Decisions of the Board are final. 38 U.S.C.A. § 7104(b) (West 1991). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened, and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). The United States Court of Veterans Appeals (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566 (1993). With petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that "new evidence" is evidence that is not "merely cumulative" of other evidence of record. Id. The Court has also explained that evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court recently reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, No. 93996, slip op. at 3-4 (U.S. Vet. App. Oct. 21, 1994). In the present case, the RO, in September 1973, denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral defective hearing on the basis that the additional evidence submitted was not new and material to reopen his claim. In December 1985 and in March 1991, the Board also denied the veteran's petition to reopen his claim of entitlement to service connection for a hearing loss disability on the basis that the additional evidence submitted was not new and material to reopen his claim. The Court has held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Therefore, in the present case, the Board must review, in light of the applicable law, regulations, and Court cases regarding finality, all of the additional evidence submitted since the Board's February 1959 decision. In this regard, since the February 1959 decision, the veteran has submitted additional evidence in the form of testimony, statements of friends and his former wife, as well as medical records. According to the law, regulations, and Court decisions regarding the issue of service connection for a hearing loss disability, the Board notes that, when the separation examination fails to meet the regulatory requirements for establishing a hearing "disability" at that time, service connection for a hearing loss disability may be granted for a current hearing loss disability if evidence shows that the current disability is causally related to service (e.g., the veteran's in-service exposure to loud noise). Hensley v. Brown, 5 Vet.App. 155, 160 (1993); See also, 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. §§ 3.303(d), 3.385 (1993). In addition, service connection for sensorineural hearing loss will be granted if such a disability became manifest to a degree of at least 10 percent within one year after the veteran's separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1993). Since the Board's February 1959 decision, the veteran has not submitted new and material evidence concerning the issues of whether his current hearing loss disability is related to his active duty and whether he had sensorineural hearing loss to a degree of at least 10 percent within one year after his separation from service. The additional testimony given by the veteran, including the statements made in substantive appeals received at the RO in January 1993, July 1990, and January 1985, as well as the testimony given at the personal hearing conducted before a hearing officer at the RO in August 1985 pursuant to a prior appeal, simply reiterate his prior contentions that his present hearing loss was incurred during service as a result of exposure to gun fire. In the substantive appeal which was received at the RO in January 1993, the veteran asserted that he was not discharged from active service until December 1957 and that he first began noticing a hearing problem in March 1954. However, the service personnel records clearly show that he was separated from active service in December 1952. Therefore, the additional testimony is cumulative of previous evidence. Since the Board's February 1959 decision, the veteran has also submitted two letters from a friend and a letter from his former wife. In these statements, the veteran's former wife and his friend asserted that the veteran had no problems with his hearing before he entered active military service, but he began having trouble hearing conversations after his separation from service. Although these statements are not redundant of previously submitted evidence, they do not raise a reasonable possibility of changing the outcome of the claim. Despite the fact that both persons maintained that the veteran's hearing was normal before service but bad after his separation from service, neither the friend nor the ex-wife stated when after service (e.g., immediately after the veteran's separation from service or several years after his discharge) they began noticing the veteran to have a problem hearing conversations. The main question in the present case is whether the additional evidence submitted by the veteran demonstrates that his present hearing began during service or within one year after his separation from service. Neither the friend nor the ex-wife specifically claimed that the veteran's hearing loss began during either of these times. Furthermore, the veteran also submitted, since the February 1959 Board decision, post-service medical records of treatment and examinations he received for his hearing loss. Most of these records reflect treatment and examinations that the veteran received for hearing loss more than one year after his separation from service which did not in any way indicate that his present hearing loss may be related to his active duty. Therefore, these additional medical records do not raise a reasonable possibility of changing the outcome of the claim. A March 1990 record from St. Joseph Medical Center included a notation that the veteran had a longstanding history of decreased hearing with ruptured tympanic membranes in 1952, tinnitus, and vertigo. Significantly, however, these statements appear to be based on history provided by the veteran himself. There is no evidence that the veteran was treated at this medical facility prior to March 1990 or that the examiner had access to the veteran's prior medical treatment records. This examiner stated that the veteran had ruptured tympanic membranes in 1952. However, the service medical records failed to demonstrate any evidence of ruptured tympanic membranes. Furthermore, according to a July 1984 statement from Dr. August Martinucci, he examined the veteran in 1981 and found the veteran's ear canals and drums were normal. In addition, although vertigo was noted in June 1951, no diseases of the inner ears were found during service. In the July 1984 statement, Dr. Martinucci stated that the veteran's exposure to noise during service could have contributed to his present hearing loss. Significantly, however, Dr. Martinucci provided no rationale to support his conclusion. Dr. Martinucci based his conclusion on statements and history provided by the veteran himself rather than on prior medical records. Moreover, Dr. Martinucci first treated the veteran for his hearing loss in 1981, approximately 30 years after his separation from service. Recently, the Court held that additional evidence relied upon by an appellant as "new and material," which consisted primarily of records of treatment many years after service that at most only indirectly indicated that the conditions may have been service connected, was not "new and material." Cox, at 99. The Court also explained that, in determining whether additional evidence creates a "reasonable possibility" of service connection for purposes of reopening the claim, the weight of the additional evidence cannot be presumed. Id. at 98. The additional evidence submitted by the veteran, including the March 1990 record from St. Joseph Medical Center and Dr. Martinucci's July 1984 statement, is not of sufficient weight that there is a reasonable possibility of changing the outcome of the claim. See, Sklar at 145. The additional evidence submitted by the veteran since the Board's February 1959 decision is not relevant and probative and does not raise a reasonable possibility that, when viewed in the context of all of the evidence, both new and old, the additional evidence would change the outcome. Therefore, the additional evidence is not new and material in light of the applicable law, regulations and Court decisions and does not provide the required evidentiary basis to reopen the veteran's claim. 38 U.S.C.A. §§ 5107, 5108, 7104(b) (West 1991); 38 C.F.R. § 3.156(a) (1993). ORDER New and material evidence not having been submitted, the appeal to reopen a claim of entitlement to service connection for bilateral defective hearing is denied. WILLIAM J. REDDY 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.