BVA9502720 DOCKET NO. 93-08 456 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a gastrointestinal disorder. 3. Entitlement to a compensable evaluation for sensorineural hearing loss in the right ear. 4. Entitlement to a compensable evaluation for chronic catarrhal otitis media in the right ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from December 1942 to December 1943. In a July 1989 appellate decision, the Board of Veterans' Appeals (Board) denied entitlement to service connection for gastrointestinal disability/an ulcer disorder. This appeal comes before the Board of Veterans' Appeals (Board) from an August 1990 rating decision by the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO), which denied entitlement to service connection for tinnitus and a gastrointestinal disorder, and denied compensable evaluations for sensorineural hearing loss in the right ear and for chronic catarrhal otitis media in the right ear. In March 1992, the veteran claimed entitlement to service connection for hypertension and vasomotor rhinitis. A rating decision dated March 19, 1992, denied service connection for hypertension and for rhinitis/sinusitis, but it does not appear that the appellant was notified of this determination. Because these issues have not been developed for appellate review, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his gastrointestinal problems began in service, as did his ringing in the ears. He also claims that his service-connected sensorineural hearing loss in the right ear and chronic catarrhal otitis media in the right ear are each more severely disabling than currently evaluated, thereby warranting compensable evaluations. 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 appellant'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 there is an approximate balance of the positive and negative evidence presented with regard to the claim of entitlement to service connection for tinnitus. Therefore, extending the benefit of the doubt to the appellant, as the Board is required to do when the evidence is in equipoise, we find that service connection is warranted for tinnitus on a secondary basis. 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 permit reopening of the appellant's claim of entitlement to service connection for a gastrointestinal disorder. It is also the decision of the Board that the preponderance of the evidence is against the appellant's claims of entitlement to compensable evaluations for sensorineural hearing loss in the right ear and for chronic catarrhal otitis media in the right ear. FINDINGS OF FACT 1. The appellant is service-connected for sensorineural hearing loss in the right ear. 2. Tinnitus cannot be disassociated from the appellant's service-connected sensorineural hearing loss in the right ear. 3. Service connection was denied for a gastrointestinal disorder in a July 1989 appellate decision by the Board. 4. The additional evidence submitted since the July 1989 appellate decision includes VA and private medical records and statements showing treatment in the 1980's and 1990's for gastrointestinal disorders, and the appellant's testimony at an August 1992 personal hearing. 5. The additional evidence submitted since the July 1989 appellate decision, when considered in the context of all the evidence of record, does not raise a reasonable possibility that a gastrointestinal disorder was present during the appellant's service. 6. The appellant has Level I hearing acuity in his right ear. 7. Chronic catarrhal otitis media in the right ear is shown to be productive of Level I hearing acuity, without evidence of suppuration. CONCLUSIONS OF LAW 1. Tinnitus is proximately due to or the result of service- connected right ear sensorineural hearing loss. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). 2. The evidence received by the Board since the July 1989 appellate decision that denied service connection for a gastrointestinal disorder is not new and material, and the claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). 3. The schedular criteria for a compensable evaluation for sensorineural hearing loss in the right ear are not met. 38 U.S.C.A. §§ 1155, 1160(a), 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.10, 4.85, 4.87, Diagnostic Codes 6100, 6101 (1994). 4. The schedular criteria for a compensable evaluation for chronic catarrhal otitis media in the right ear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.10, 4.85, 4.87, 4.87a, Diagnostic Codes 6100, 6101, 6201 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claims are well-grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). I. Tinnitus Tinnitus is not shown to have been reported during the appellant's active military service. At a March 1988 VA audiological evaluation, the examining audiologist noted that the appellant complained of tinnitus in his right ear, and there was an assessment of bilateral sensorineural hearing loss. General Services Administration Standard Form (GSASF) 513, Consultation Sheet, dated March 18, 1988. Tinnitus was also reported in the right ear at a July 1990 VA ear examination. GSASF 513, Consultation Sheet, dated July 2, 1990. Chronic tinnitus may be causally or etiologically related to sensorineural hearing loss. Robert W. Baloh, The Special Senses, in 2 Cecil Textbook of Medicine, 2098, 2107-2108 (James B. Wyngaarden, M.D., et al. eds., 19 ed. 1992). As the pathology underlying the appellant's current tinnitus cannot be clearly disassociated from his service-connected sensorineural hearing loss in the right ear, the Board has determined that the evidence pertaining to the claim of entitlement to service-connection for tinnitus is in equipoise. When there is an approximate balance of the positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the benefit of the doubt is extended to the appellant, and service connection is granted for tinnitus on a secondary basis. II. Gastrointestinal Disorder The appellant argues that he was treated for gastrointestinal problems during his period of military service, which have continued to plague him since service. In a July 1989 appellate decision, the Board denied entitlement to service connection for a gastrointestinal disorder. Except as provided in 38 C.F.R. § 5108 (West 1991), when a claim is disallowed by the Board, the claim may not be thereafter reopened unless new and material evidence is presented with respect to the claim. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1105 (1994). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers, 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) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The evidence considered by the Board in its July 1989 appellate decision included the appellant's service medical records that showed no complaint or finding of any gastrointestinal disorder (Service medical records), and a report of a July 1944 VA physical examination that revealed a normal digestive system (VA Medical Form 2545, dated July 18, 1944). Also considered by the Board in July 1989 were private and VA medical records dated from August 1944 to August 1988. A report of private hospitalization in January 1967 for treatment of a duodenal ulcer indicated that the appellant gave a history epigastric pain and distress since 1953, a history of having been seen in August 1956 for complaints that revealed a duodenal ulcer, and a history of undergoing a vagotomy and anterior gastroenterostomy in October 1962. Report of hospitalization at St. Bernardine Hospital from January 26 to January 31, 1967. A June 1967 VA gastrointestinal examination revealed findings that were diagnosed as a well-functioning gastroenterostomy with no new ulcer formation and a normal appearing duodenal bulb. GSASF 507, report of gastrointestinal examination conducted on June 23, 1967. The appellant underwent a laparotomy and closure of the gastrostomy and jejunostomy in March 1980 (Summary of hospitalization at Barstow Community Hospital from March 10 to March 20, 1980) and was rehospitalized four days later for treatment of stenosis at the jejunostomy site (Summary of hospitalization at Barstow Community Hospital from March 24 to April 3, 1980). A private hospitalization record showed that the appellant underwent an esophagogastroduodenoscopy and biopsy in March 1986 for evaluation of abdominal pain, and the impression was gastric erosions and ulcer. Hospitalization record from Victor Valley Community Hospital, dated March 3, 1986. A private medical statement in July 1988 indicated that the appellant had been treated on several occasions in 1985 and 1987 for gastrointestinal problems. Medical statement fro T. K. Chow, M.D., dated July 1, 1988. VA medical records dated from July 1979 to August 1988 revealed occasional treatment for gastrointestinal disorders. Evidence submitted since the July 1989 appellate decision includes the following: VA outpatient medical records dated from February 1979 to December 1989; private medical records showing a duodenal ulcer on an upper gastrointestinal series of X-rays in July 1984, a gastric ulcer in March 1986, and an esophagogastro- duodenoscopy and biopsy in October 1989; an April 1986 medical statement from R. S. Poola, M.D. showing treatment at that time for chronic abdominal pain and burning, with the physician indicating that the appellant's symptoms and clinical findings probably representing gastroparesis or possibly a bile- gastritis/reflux esophagitis; and a January 1992 medical statement from K. Wollesen, M.D., indicating that antrum stomach biopsies revealed mild to moderate helicobacter associated with chronic active gastritis. New evidence means more than evidence that was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The additional evidence presented in this case is only cumulative. The evidence previously of record showed that the appellant had post-service gastrointestinal disability, which he claimed began in service. The additional evidence shows nothing more. It does not demonstrate that any gastrointestinal disorder was present in service or for many years thereafter. After review of the record, the Board has concluded that the additional evidence that the appellant has submitted is not new. Accordingly, his claim of entitlement to service connection for a gastrointestinal disorder is not reopened, and the July 1989 appellate decision remains final. III. Right Ear Sensorineural Hearing Loss The appellant claims that his service-connected sensorineural hearing loss in the right ear has worsened to the extent that he has trouble hearing other people's conversations at times. VA law and regulations provide that where service connection has been granted for defective hearing involving only one ear, and total deafness is present in the other ear as a result of nonservice-connected disability not the result of the veteran's own willful misconduct, a compensable evaluation is possible. 38 U.S.C.A. § 1160(a) (West 1991). In situations where service connection has been granted only for defective hearing involving one ear, and the veteran does not have total deafness in both ears, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at Level X or XI. 38 C.F.R. § 4.85, 4.87, Diagnostic Codes 6100 and 6101 (1994). In reviewing the development of the defective hearing in the appellant's right ear, the Board notes that the service medical records show that he was treated for chronic otitis media with hearing acuity in the right ear limited to 2/15 while the left ear had normal hearing acuity. War Department A. G. O. Form No. 40, Certificate of Disability for Discharge, dated November 22, 1943. Audiological evaluation at a July 1944 VA physical examination showed a hearing ability for conversational voices was eight feet in the right ear as opposed to 20 feet in the left ear. Report of VA ear examination, dated July 18, 1944. An August 1944 medical statement from A. E. Bessette, M.D., noted that the appellant's hearing was 20/20. Private medical statement, dated August 15, 1944. A June 1967 VA medical examination report, which included evaluation of audiological evaluation, indicated that hearing loss was not found. GSASF 506, physical examination report, dated June 13, 1967. Audiometric evaluation by the VA in March 1988 revealed that the average puretone threshold for the frequencies at 1000, 2000, 3000, and 4000 cycles per second in the right ear was 30 decibels, with speech discrimination ability of 94 percent correct. VA Form 10-2463, Report of Audiological Evaluation, dated March 18, 1988. These findings correspond to a Level I hearing acuity in the right ear. 38 C.F.R. § 4.85 (Tables VI and VII) (1994). The most recent audiometric findings, from an audiological evaluation conducted by the VA in June 1990, revealed that puretone thresholds for the frequencies at 1000, 2000, 3000, and 4000 cycles per second in the right ear were 25, 25, 35, and 35 decibels, respectively, for an average puretone threshold of 30 decibels. Speech discrimination ability in the right ear at the June 1990 VA audiological evaluation was 94 percent correct. The average puretone threshold in the nonservice-connected left ear was 26 decibels, with a speech discrimination ability of 96 percent correct. VA Form 10-2463, Report of Audiological Evaluation, dated June 29, 1990. These findings correspond to a Level I hearing acuity in both the right and left ears. 38 C.F.R. § 4.85 (Tables VI and VII) (1994). As illustrated by the available audiometric findings, the appellant's hearing loss in the right ear does not approach the level required for a compensable rating in cases involving unilateral service-connected hearing loss. Therefore, the Board is unable to identify a basis to award a compensable evaluation for sensorineural hearing loss in the right ear. IV. Otitis Media The appellant maintains that his otitis media in the right ear causes hearing loss, headaches, and pain in his head, including in his eyes, but does not result in any drainage from the ear. Transcript of personal hearing, p. 1, conducted on August 27, 1992. Chronic catarrhal otitis media is rated as for loss of hearing. 38 C.F.R. § 4.87a, Diagnostic Code 6201 (1994). Service medical records show that the appellant was treated for chronic, moderate, suppurative otitis media in the right ear, with 2/15 hearing ability in that ear. War Department A. G. O. Form No. 40, Certificate of Disability for Discharge, dated November 22, 1943. At a July 1944 VA physical examination, the appellant reported hearing difficulty in his right ear since childhood. Evaluation of the ears revealed that the canals were normal, with no pus or debris in the right canal or drum area and a doubtful perforation. Hearing in the right ear was eight feet for conversational voices. Report of VA ear examination, dated July 18, 1944. An August 1944 medical statement from A. E. Bessette, M.D., noted that the appellant was suffering from a perforated ear drum in the right ear, with 20/20 hearing acuity . Private medical statement, dated August 15, 1944. Evaluation of the appellant's ears at a VA medical examination in June 1967 revealed that the ear canals were clear and that the drums were intact with good anatomical landmarks. The diagnosis was old, healed otitis media, with hearing loss not found. GSASF 506, Physical examination, dated June 13, 1967. At the March 1988 VA audiological evaluation, the audiometric findings revealed an average puretone threshold of 26 decibels and a 94 percent correct speech reception ability in the right ear, indicating a Level I hearing acuity in that ear. VA Form 10-2463, Report of Audiological Evaluation, dated March 18, 1988. The June 1990 VA audiological evaluation revealed that the average puretone threshold in the right ear was 30 decibels and that speech discrimination ability was 94 percent correct in the right ear. It was remarked that there was mild sensorineural hearing loss in the right ear. VA Form 10-2463, Report of Audiological Evaluation, dated June 29, 1990. These findings correspond to a Level I hearing acuity in the right ear. 38 C.F.R. § 4.85 (Tables VI and VII) (1994). At the July 1990 VA ear examination, the appellant complained of noise bothering him, headaches, and tinnitus and hearing loss in the right ear. The tympanic membranes were normal, and the external auditory canals were clear. It was reported that an audiogram conducted in conjunction with the examination had revealed mild sensorineural hearing loss in the right ear. GSASF 513, Consultation Sheet, dated July 2, 1990. Because the appellant is shown to have Level I hearing acuity in his right ear and indicated at his August 1992 personal hearing that he had no problem with suppuration from the right ear, the Board is unable to identify a basis to grant a compensable evaluation for chronic catarrhal otitis media in the right ear. V. Additional Discussion The Board has considered the testimony provided by the appellant at his August 1992 regional office personal hearing, but we do not find that this testimony, when considered with the other evidence of record, is supported by the other evidence so as to permit an allowance of the claims of entitlement to service connection for a gastrointestinal disorder or entitlement to compensable evaluations for sensorineural hearing loss in the right ear of chronic catarrhal otitis media in the right ear. Consideration has been given to the potential application of the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence does not suggest that the appellant's sensorineural hearing loss in the right ear or his chronic catarrhal otitis media in the right ear presents such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation for either of these disabilities under 38 C.F.R. § 3.321(b)(1) (1994). For example, neither of them has required frequent periods of hospitalization, nor does either of them present marked interference with employment. ORDER Service connection is warranted for tinnitus. New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a gastrointestinal disorder, that benefit remains denied. Compensable evaluations are denied for sensorineural hearing loss in the right ear and for chronic catarrhal otitis media in the right ear. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.