Citation Nr: 0004431 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-11 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right ankle disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from August 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In August 1992, the Regional Office (RO) denied veteran's claims of entitlement to service connection for bilateral hearing loss and a right ankle disability. At that time, it was found that there was no evidence of complaints or findings referable to a disability of the right ankle during service and no evidence to indicate bilateral hearing loss or tinnitus shown to have been incurred in or aggravated by active military service. The veteran was notified of this determination in September 1992. 2. The additional evidence obtained or submitted to reopen the claims since August 1992 includes the veteran's statements associating his current ankle disorder and hearing loss with service and statements from family and associates noting the veteran's difficulties with his right ankle following service. 3. The additional evidence is either cumulative or redundant and, by itself or in connection with the evidence previously assembled, is not so significant that it must be considered in order to adjudicate fairly the previously denied claims at this time. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of service connection for a right ankle disability has not been submitted; the veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. New and material evidence to reopen the claim of service connection for bilateral hearing loss has not been submitted; the veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background As noted above, the veteran served on active duty from August 1952 to March 1956. Service medical records make no reference to either a right ankle disability or hearing loss. Reference is made to a left ankle injury in April 1954. At his discharge evaluation in March 1956, no reference was made to either a right ankle disability or hearing loss. At the March 1956 evaluation, a "15/15" whisper test result for the veteran's hearing was reported. Accordingly, the hearing results at separation to active service were considered "normal." See Smith v. Derwinski, 2 Vet. App. 137, 138 and 140 (1994). The veteran was discharged from active service in March 1956. The veteran filed his initial claim for VA compensation in December 1991, decades after his discharge from active service. An audiological evaluation in February 1992 revealed gradually sloping, mild to moderate hearing loss in the right and left ear. The type of loss could not be determined. X-ray studies taken of the veteran's ankles revealed moderate hypertrophic changes involving both ankles. No visible deformity of either ankle was indicated in a VA evaluation that month. Medical records obtained by the RO at that time failed to indicate an association between the veteran's right ankle disorder or hearing loss with active service. In an August 1992 rating determination, service connection was denied for bilateral hearing loss and a right ankle fracture or other right ankle disorder. In August 1992, the RO noted that there was no evidence of complaints or findings referable to a disability of the right ankle during service. Service connection was denied for bilateral hearing loss and tinnitus as neither were shown to have been incurred in or aggravated by active military service and were not shown by any evidence until 1991, a date far removed from the veteran's active duty. The veteran was notified of this determination in September 1992. He failed to file a timely appeal to this determination. In May 1997, the veteran petitioned to reopen his previously denied claims. Prior to this time, in an August 1993 VA evaluation, he again reported bilateral ankle sprains during service. It was noted that the veteran had reconstructive surgery done on the left side in 1979 and on the right side in 1981. The examiner noted that the right ankle appeared to be somewhat weak. At this time, no reference was made to bilateral hearing loss. In a statement received in September 1997, the veteran requested consideration under the provisions of 38 U.S.C.A. § 1154(b) (West 1991), in support of his claim. The veteran noted that he was in combat while on active military duty. It was contended that his testimony regarding these disabilities should be acknowledged as true and that his claim for these disabilities as service connected should be reconsidered as such. In July 1998, the veteran supplied the VA with several lay statements noting the veteran's difficulty with both ankles following his discharge from active service. In one of the statements, the veteran's brother states that when the veteran left naval service he was always spraining his left or right ankle just by walking normally. It was noted that this problem had existed since 1980 to 1981 and continues to get worse. In July 1998, the veteran's sister noted that the veteran injured his ankles in service. The veteran's mother and stepfather note that he was having trouble with his ankles and that both ankles tended to twist and cause him to stagger and hold on to things. At a hearing held before a hearing officer at the RO in June 1999, the veteran stated that when he would "step wrong" on anything, such as a rock or a twig, his ankle would roll and it would just "snap out, either one of them, whichever one I stepped on." He noted that this occurred in 1979 or 1978. Reconstruction at a VA Medical Center in 1979 and 1980 was indicated. The veteran noted he self-treated his right ankle during service with hot water and the use of Ace bandages. He indicated that he did not see a doctor for this condition. When asked specifically when, after service, he first noted problems with his hearing, he noted that it was approximately 10 years ago (approximately 1989). It was argued that because of the veteran's noise exposure in service he began having hearing problems. The veteran also appears to note a sprain of his right ankle during a typhoon on route to the Philippines. Following the hearing, the RO requested records from the VA facility the veteran reported had treated him for his ankles in 1978 or 1979. The medical facility reported there were no records of the claimed treatment. Analysis Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Board must reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7105(c) (West 1991) and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) (1999) provides as follows: 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. New evidence means more than evidence which has not been previously physically of record. To be "new" additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). However, for the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The U.S. Court of Appeals for Veterans Claims (Court), in Elkins v. West, 12 Vet. App. 209 (1999), announced a post- Hodge three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. In this case, the RO, in the June 1998 Supplemental Statement of the Case, in addressing whether new and material evidence had been submitted to reopen the claims of service connection for a right ankle disability and hearing loss, provided the appellant with the provisions of 38 C.F.R. § 3.156. In the reasons and bases section of the Supplemental Statement of the Case, however, the RO appears to paraphrase the Colvin definition of "new and material" evidence. However, the RO also determined that the cited additional evidence did not contain any finding or report pertaining to these disorders that would change the prior determination. Thus, the Board finds that the RO has effectively ruled in the alternative, finding that the additional evidence is not "new" because it is cumulative, and also that the additional evidence is not "material." A finding that this evidence is not "new" would alone support the RO determination to deny these claims. The claimant has been provided the controlling regulatory definition of "new and material" evidence and the RO's adjudication of the application to reopen the claim for service connection for a right ankle disability and hearing loss is consistent with that definition. Thus, it is not prejudicial for the Board to proceed with the adjudication of these claims at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). Under this analysis, the finding that the evidence is not "material" was gratuitous, and thus any question as to whether the RO's ruling as to the materiality of the additional evidence was in accord with Hodge is moot. In this case, the veteran has supplied no new competent medical evidence to support his theory that his current right ankle disability or hearing loss is the result of his active service. In this regard, the question of whether he currently has either hearing loss or a right ankle disability is not in dispute. The August 1992 RO rating decision noted that these disabilities existed at that time. However, it was also determined that the veteran had failed to provide evidence to indicate that he had these disorders during his active service in the 1950's. The record at that time, as it does today, contains no medical documentation of a right ankle disorder or hearing loss until decades following service, nor does it contain competent medical evidence linking a current disability of the right ankle or a hearing loss to service. The veteran has never indicated that he received treatment for a right ankle disorder or hearing loss immediately following service. The current evidence of record fails to note any treatment for a right ankle disorder or hearing loss until decades following the veteran's discharge from active service. Under Justus, the credibility of the veteran's contention that he injured his right ankle during his active service is to be presumed for the purposes of determining whether new and material evidence has been submitted. Accordingly, 38 U.S.C.A. § 1154(b) (West 1991) is not at issue. Based on all statements provided by the veteran (as well as the testimony of the veteran himself), the Board may also presume that immediately following his discharge from active service he had difficulties with his right ankle. The Court has made clear, however, that a lay party is not competent to provide probative evidence as to matters requiring expertise derived by specialized medical knowledge, skill, expertise, training or education. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). As the Court has stated, "[l]ay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose and cannot be considered by the Board." Hyder v. Derwinski, 1 Vet. App. 221, 222 (1991). Thus, the veteran is not competent to associate his current right ankle disorder or hearing loss with an injury or noise exposure alleged to have occurred decades earlier. The veteran's lay arguments that his hearing loss is the result of noise exposure, or that his current right ankle disability is the result of an alleged injury during service, is merely cumulative to evidence of record in 1992. As a result, it is not new. The recently obtained medical evidence regarding treatment of the right ankle and for indications of hearing loss is likewise fundamentally cumulative. It only serves to show what was known in 1992: That the veteran developed a right ankle disorder and hearing loss decades after his active service. Consequently, the medical evidence is not "new" and cannot constitute "new and material." The Board has carefully taken into consideration the statements provided by the veteran, the veteran's testimony, and his contention that his disabilities occurred while in combat on active military duty. However, simply stated, the veteran is not competent to associate a right ankle injury alleged to have occurred in service during combat to his current right ankle disorder, noted decades after his discharge from service. He is also not competent to associate his current hearing loss to noise exposure in the 1950's. In making this determination, the Board has noted that the RO appears to have adjudicated the claim of service connection for a right ankle disability on its merits in a January 1999 Supplemental Statement of the Case. However, unless the veteran provides new and material evidence to reopen the claim, the Board is bound by an expressed statutory mandate not to consider the merits of the case. Barnett v. Brown, 83rd F.3d 1380, 1384 (Fed. Cir. 1996). In Barnett, the United States Court of Appeals for the Federal Circuit concluded that 38 U.S.C.A. § 7104 does not merely "empower" but "requires" the Board to first determine whether new and material evidence has been presented prior to an adjudication of the merits of the claim. Thus, unless, and until, the veteran provides new and material evidence to provide a basis to reopen his claims, the Board may not unilaterally adjudicate the merits of the claims denied by the RO several years ago. In light of the fact that the RO appeared to have adjudicated the issue of service connection for a right ankle disability on both a direct basis and on the basis of new and material evidence, the Board has considered whether this case should be remanded to the RO in order to allow the RO to adjudicate whether new and material evidence has been presented under the current standard articulated within Hodge. However, as noted above, under the Elkins test, if new and material evidence had been presented, immediately upon reopening the claim, the Board would be required to determine whether, based upon all the evidence of record in support of the claim, the claim (as reopened) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Based on a review of both of the evidence cited above and the Court's determination in Espiritu v. Derwinski, 2 Vet. App. 492-5 (1992), it must be found that these claims are clearly not well grounded under the Court's determination in Caluza. In this case, while it is clear that the veteran currently has both hearing loss and a right ankle disorder and (based on the veteran's statements) the Board has assumed that he injured his right ankle during his active service, there is nevertheless absolutely no competent evidence which associates the current hearing loss and right ankle disability with his active service over 40 years ago. Simply stated, the veteran has provided absolutely no medical evidence to support the conclusion that his current right ankle disorder or hearing loss is the result of noise exposure or an injury that occurred more than 40 years ago. While the veteran is competent to report the presence of visible manifestations of a disorder, he is not competent to link those manifestations with the disability that is itself not susceptible to lay "diagnosis." The nature and etiology of the right ankle disability is a matter requiring medical expertise to diagnose, and thus the veteran is not competent to provide the necessary causal link by his lay assertions of continuity of symptomatology because he cannot link the manifestations to an underlying disability. The veteran is also not competent to associate his current hearing loss with exposure to loud noises more than 40 years ago. Accordingly, if the Board were to adjudicate the claims on the merits, it would be forced to conclude that the claims are not well grounded under the Court's determination in Caluza. In light of this determination, a remand to the RO in order for the RO to determine whether new and material evidence has been submitted to reopen the claims is unwarranted. The RO in January 1999 appears to have given more consideration to the claim of service connection for a right ankle disability than was required. Accordingly, it would serve no purpose to remand these issues to the RO for additional development, when none is required. Consequently, the Board finds that the veteran has not been prejudiced by a determination that he has not submitted new and material evidence that would reopen his claims. See Bernard. ORDER As new and material evidence has not been received, the application to reopen the claims of service connection for a right ankle disorder and hearing loss remains denied. Richard B. Frank Member, Board of Veterans' Appeals