BVA9505932 DOCKET NO. 93-14 304 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Whether new and material evidence sufficient to reopen a clam for service connection for brain damage has been received. 3. Whether new and material evidence sufficient to reopen a clam for service connection for pneumonia has been received. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, spouse, and Mr. D INTRODUCTION The veteran served on active duty from June 1941 to June 1945. In July 1984, the regional office denied service connection for hearing loss, a nervous condition, and residuals of pneumonia. In January 1985, service connection for fever residuals, to include brain damage, was denied. The veteran did not appeal that determination. In April 1985, the Board of Veterans' Appeals denied service connection for bilateral hearing loss, a psychiatric disorder, and residuals of pneumonia. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision from the Ft. Harrison, Montana, Regional Office (RO). Since the Board's denial of service connection for hearing loss disability, the regulation governing the definition of when a hearing loss disability exists was implemented and then amended. Based on the regulatory changes, the veteran's claim is a new claim rather than a petition to reopen. Since the veteran was provided the applicable law and afforded an opportunity to argue the merits, the veteran is not prejudiced by a determination to address the issue de novo. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran had pneumonia and malaria during service. It is argued, in essence, that hearing loss, brain damage, and residuals of pneumonia are of service origin. 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 the claim for service connection for hearing loss disability is not well grounded. It is also the decision of the Board that new and material evidence sufficient to reopen a claim for service connection for residuals of brain damage or pneumonia has not been received. FINDINGS OF FACT 1. Satisfactory evidence tending to establish that hearing loss disability is attributable to service has not been presented. 2. The Board of Veterans' Appeals addressed the issue of entitlement to service connection for pneumonia in a decision dated in an April 1985. The benefit sought on appeal was denied. 3. Since the 1985 Board decision the appellant has petitioned to reopen the claim. The evidence submitted in support of the petition to reopen is cumulative and does not raise a reasonable possibility that the outcome would be changed. 4. Service connection for brain damage was denied by rating decision dated in January 1985. The decision was supported by the evidence then of record. The veteran did not appeal within one year of date of notification of the decision. 5. The evidence submitted in support of the petition to reopen the claim for service connection for brain damage is not competent or relevant. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss disability is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The April 1985 decision of the Board is final. New and material evidence sufficient to reopen the claim has not been submitted. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1994). 3. The January 1985 rating decision which denied service connection for brain damage is final. New and material evidence sufficient to reopen a claim for service connection for brain damage has not been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.156, 20.302, 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I Hearing Loss The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for hearing loss. If he has not presented a well- grounded claim, the appeal must fail. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As we explain below, we find that the claim is not well grounded. Because the claim is not well grounded, there is no duty to assist the veteran in the development of the claim because such development would be futile. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). See also, 38 U.S.C.A. § 1154 (West 1991). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim. However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). A review of the service medical records reflect that the documents were negative for complaints, findings or manifestations of hearing loss or hearing loss disability. The veteran's separation examination disclosed 15/15 auditory acuity. According to the United States Court of Veterans Appeals, 15/15 is normal. Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). In addition, the record does not include evidence of sensorineural hearing loss (an organic disease of the nervous system) within 1 year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Furthermore, probative evidence attributing the veteran's current hearing loss disability to service has not been presented. The Board has noted the veteran's testimony. However, neither he nor his witnesses are medical professions. As such, they are not competent to establish that he had a hearing loss disability during service or that the current hearing loss disability is due to service, particularly when the service records demonstrated normal auditory acuity. Furthermore, in June 1991, the veteran reported for evaluation purposes that he had a 30 year history of hearing loss. This would place the onset of the hearing loss outside of service and outside of any reasonable proximity to separation from service. The veteran's comment, in June 1991, is a statement against interest and tends to disprove the claim. Although the veteran reported, in the same document, that he believed that the hearing loss was due to the war, he remains not competent to establish the etiology of the condition. Based on the absence of probative evidence of hearing loss during service or an organic disease of the nervous system within 1 year of separation and the absence of probative evidence attributing hearing loss disability to service, the claim is not well grounded. If the veteran is able to obtain a medical opinion attributing hearing loss disability to service, he should file a new claim. II Pneumonia In April 1985, the Board addressed the issue of entitlement to service connection for pneumonia. At that time, there was no evidence of pneumonia during service, no evidence of residuals of pneumonia at time of separation from service, no probative evidence of residuals of pneumonia in proximity to separation from service, and no probative evidence of current residuals of pneumonia. Based upon the evidence, service connection for residuals of pneumonia was denied. The law, regulations and decisions of the United States Court of Veterans Appeals establish that the prior decisions of the Board are final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). When a claim is disallowed by the Board, the claim [generally] may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. section 7104 (b) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states: 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. Masors v. Derwinski, 2 Vet.App. 181, 184 (1992). First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. The new evidence may not be sufficient in and of itself, but it may be just enough, when all the evidence is considered, to create an approximate balance of positive and negative evidence which would entitle the veteran to the benefit of the doubt. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Since the 1991 decision, the appellant has petitioned to reopen a claim for service connection for pneumonia. The issue before the Board is whether the claim should be reopened on the basis of new and material evidence. 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 (1993). The claimant bears the initial burden of presenting new and material evidence under 38 U.S.C.A. § 5108 (West 1991). Moore v. Derwinski, 2 Vet.App. 209, 212 (1992). Material evidence is relevant and probative of the issue at hand and new evidence is that which is not merely cumulative of evidence in the record. Furthermore, in order for evidence to constitute new and material evidence, it must raise a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Thompson v. Brown, 5 Vet.App. 165, 166 (1993). In support of the petition to reopen, the veteran has not submitted medical evidence of pneumonia during service or in proximity to separation from service or that he has current disability. Although the veteran has testified, the testimony is equivocal and he is not competent to establish that he has residuals of pneumonia. Grottveit. The recent testimony is essentially duplicative of previous argument. The fact that sworn testimony has been presented does not provide a basis for reopening the claim. This recounting was not new. Godwin v. Derwinski, 1 Vet.App. 419, 424 (1991). Because there is an absence of new and material evidence, the claim for service connection may not be reopened. III Brain Damage In January 1985, service connection for brain damage was denied. At that time, there was an absence of evidence of brain damage during service, an absence of probative evidence attributing brain damage to service, and an absence of current disability due to brain damage. The veteran was informed of the denial and of his right to appeal. In the absence of a timely appeal, the decision became final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). Since the January 1985 decision, the veteran has petitioned to reopen a claim for service connection for brain damage. The issue before the Board is whether the claim should be reopened. We conclude that there is no basis to reopen the claim. Despite the testimony of the veteran and the witnesses, there is no competent evidence tending to establish that the veteran has brain damage at this time. The record contains no medical evidence of brain damage or medical evidence attributing brain damage to the veteran's period of service. The witnesses are not competent to testify regarding a medical diagnosis, and such testimony may not serve to reopen the claim. If lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim, it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet.App. 211, 214 (1993). In the absence of new and material evidence, there is no basis to reopen the claim. ORDER The appeal for service connection for hearing loss disability is dismissed. The petition to reopen the claims for service connection for brain damage and residuals of pneumonia are denied. H. N. SCHWARTZ 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.