BVA9504068 DOCKET NO. 93-20 279 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Whether new and material evidence has been presented to reopen a claim of service connection for otitis media of the left ear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from January 12 to March 15, 1946. Service connection for otitis media of the left ear was granted by VA in March 1946, effective the day following the veteran's separation from service. By actions taken in March and June 1952, severance of service connection was proposed and implemented. The veteran was notified, by a June 23, 1952, letter, that he had one year in which he could appeal the severance. However, no appeal was filed. The present appeal arises from an October 1992 denial by the RO to reopen a claim of service connection for otitis medial of the left ear. At a July 1993 hearing held at the RO, a veterans benefits counselor, acting on behalf of the appellant, raised the issue of clear and unmistakable error in the June 1952 severance of service connection. This issue has not been previously considered by the RO. Consequently, it is referred to the RO for appropriate action. The veteran testified at a January 1994 hearing before a member of the Board of Veterans' Appeals (Board). The Board member who conducted the hearing is no longer employed by the Board. The veteran was notified of this in a letter dated in November 1994 and was given an opportunity to request another hearing. In December 1994, he waived the opportunity to have another hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that otitis media of the left ear began during military service. He asserts that, despite a finding made by a service department Board of medical officers that otitis media pre-existed service and was not aggravated thereby, his ear difficulties prior to service were limited to his early childhood years and resolved without complications. He maintains that it was not until after he had entered military service that he experienced significant problems and points to an entry examination showing no ear problems in support of his position. 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 to reopen a claim of service connection for otitis media of the left ear has been submitted. FINDINGS OF FACT 1. Service connection for otitis media of the left ear was severed by a rating action taken in June 1952. The veteran did not appeal this determination. 2. Evidence has been received since the June 1952 severance that was not previously available and which is relevant to and probative of the question of service connection. This new evidence raises a reasonable possibility of changing the outcome of the previous determination. CONCLUSION OF LAW New and material evidence warranting reopening of a claim of service connection for otitis media of the left ear has been received. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's application to reopen his claim is well-grounded within the meaning of § 5107. In other words, evidence has been submitted that makes his claim a plausible one--"capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). His own testimony provides an explanation of when he first began to experience significant problems with his left ear. As he points out, his service entry examination showed no evidence of an ear problem. Thereafter, while serving on active duty, otitis media of the left ear was diagnosed. Although recent medical evidence showing continued problems with otitis media has not been presented, the veteran's testimony, a statement by his mother to the effect that his problems began in service, and medical records prepared during service all lend support to the veteran's contention that otitis media began during his period of active military service. Such evidence makes the veteran's claim plausible. Id. However, the current claim is not his first attempt at securing a grant of service connection. Service connection for otitis media of the left ear was granted by a March 1946 rating action, but was later severed by a June 1952 rating determination, and the veteran did not appeal the severance action. Absent the submission of a timely appeal, a determination by the RO, such as the June 1952 severance of service connection, becomes a final action and may not be reopened except on the presentation of "new and material evidence." 38 U.S.C.A. §§ 5108 (West 1991). In determining whether new and material evidence has been presented, VA must review the new evidence "in the context of" the old. See Jones v. Derwinski, 1 Vet.App. 210, 215 (1991). "New" evidence is that which is not "merely cumulative" of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Additionally, evidence is "material" when it is relevant to and probative of the issue at hand and 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." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). It should also be pointed out that, in determining whether evidence is new and material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet.App. 510, 513 (1992). In the case at hand, the Board holds that new and material evidence sufficient to reopen a claim of service connection for otitis media of the left ear has been submitted. Notably, evidence received following the June 1952 determination includes an August 1992 statement from Robert E. Whited, M.D., showing that the veteran had tympanosclerosis, several areas of atrophy of the tympanic membrane, and defective hearing. Further, an August 1992 statement from the veteran's mother indicates that he began to experience "trouble with his head" when he was on active duty and that it was during this time that his ear drum was perforated. Testimony provided by the veteran in July 1993 and in January 1994 includes detailed information as to the extent of problems he experienced with his ears before, during, and after service. The veteran testified that pre-service difficulties with his ears were limited to earaches during his early childhood years. He said that those difficulties cleared up and that he did not remember having any problems with his ears during his teenage years until after he entered active military duty. His mother's statement corroborates this account. Although the veteran apparently made a similar statement during a VA examination in March 1947, when he said that his ears never really bothered him until he entered service, sworn information of the details provided in July 1993 and January 1994 had not previously been available, nor had a statement from a family member been available prior to the application to reopen the claim. This additional information, providing greater detail as to the extent of difficulties experienced before service, tends to refute statements included in the veteran's service records that he had had almost constant ear difficulties prior to service. Consequently, the newly received evidence is both new and material. It is probative of the question at hand and raises a reasonable possibility that the earlier outcome would change. The veteran's claim of service connection should therefore be reopened. ORDER A claim of entitlement to service connection for otitis media of the left ear is reopened and, to this extent, the appeal is granted. REMAND In light of the Board's conclusion that a claim of service connection is reopened, consideration must be given to whether additional development is required in order to ensure that the veteran's procedural rights are protected so far as his being given adequate notice and opportunity to present evidence on the underlying question of service connection. Bernard v. Brown, 4 Vet.App. 384 (1993). As already noted, the October 1992 RO determination appealed by the veteran was whether evidence had been received sufficient to reopen the claim. Now that this question has been settled, the Board finds that he should be given an opportunity to submit evidence, including testimony and argument on the substantive question of entitlement to service connection. In order to give the veteran adequate notice of the need to submit such evidence or argument, and to allow the RO the opportunity to adjudicate the merits of the claim of service connection on a de novo basis, a remand is required. Id. In this regard, the Board notes that an examination would be helpful to determine whether the veteran continues to experience problems with otitis media of the left ear, as was shown during service and shortly thereafter. Consequently, the case is REMANDED for the following actions: 1. The veteran should be given an opportunity to submit recently prepared records showing treatment or evaluation of otitis media of the left ear. 2. An examination of the veteran's ear should be conducted. The examiner should review the evidence contained in the claims folder, including that obtained pursuant to the instruction above. The examiner should state whether the veteran has otitis media of the left ear, and if so, whether it is at least as likely as not that otitis media of the left ear began during service or, if present before service, whether it underwent a worsening during service. All findings, opinions and bases therefor should be set forth in detail. 3. After completion of the development sought above, the RO should take adjudicatory action on the substantive question of service connection. The claim should be evaluated on a de novo basis, giving consideration to all the evidence of record. Any additional development deemed necessary should be undertaken. If the benefit sought is not granted, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. M. CHEEK Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. 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. 38 C.F.R. § 20.1100(b) (1994).