BVA9504147 DOCKET NO. 93-12 605 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left knee disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left ear disorder, claimed as otitis externa. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from January 1958 to January 1967. The veteran has also raised a claim for service connection for a foot disorder. That claim has not been developed for appellate review, and is referred to the Regional Office (RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence to reopen the claims for service connection for a left knee disorder and bilateral hearing loss. In essence he claims that these disorders were incurred in service and that service connection is warranted. He also contends that a right ear disorder, specifically otitis externa, and a right knee disorder were incurred in service, and that service connection is therefore warranted for these disorders also. The representative has requested that the case be returned to the regional office for further medical evaluation. DECISION OF THE BOARD The Board of Veterans' Appeals (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 the claims for service connection for a left knee disorder and bilateral hearing loss, and that the appellant has not met the initial burden of submitting evidence to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for a left ear disorder and a right knee disorder are well- grounded. FINDINGS OF FACT 1. Service connection for a left knee disorder was denied by rating decision of March 1988, based on the finding that left knee impairment found in service was acute and transitory, and resolved without any residuals. That decision was unappealed and became final. 2. Evidence received subsequent to the March 1988 rating decision does not tend to show that a left knee disorder shown in 1975 is related to service. 3. Service connection for hearing loss was denied by rating decision of March 1988, based on the finding that no hearing loss was shown. That decision was unappealed and became final. 4. No evidence has been received subsequent to the March 1988 rating decision that tends to show that the veteran had a chronic hearing loss at separation, within the first post-service year, or that he currently has impaired hearing constituting a disability 5. The veteran has presented no clinical evidence of a chronic left ear disorder. 6. The veteran has presented no evidence to show a chronic right knee disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received subsequent to the March 1988 rating decision, and the veteran's claim for service connection for a left knee disorder may not be reopened. 38 U.S.C.A. §§ 5107, 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. New and material evidence has not been received subsequent to the March 1988 rating decision, and the veteran's claim for service connection for (bilateral) hearing loss may not be reopened. 38 U.S.C.A. §§ 5107, 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156(a) (1994). 3. The veteran has not submitted evidence of a well-grounded claim for service connection for a left ear disorder, claimed as otitis externa. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran has not submitted evidence of a well-grounded claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether claims for Service Connection for Left Knee Disorder and Hearing Loss Can be Reopened The veteran seeks to reopen his claims for service connection for a left knee disorder and hearing loss. Both of those claims were denied in rating decision of March 1988. The decision was unappealed and became final. To reopen a claim where there is a prior final determination on that claim by the RO, a claimant must submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991). Evidence is new when it was not previously of record and is not "merely cumulative of other evidence on the record," and material when it is both "relative to and probative of the issue at hand" and of sufficient weight to present a reasonable possibility that the new evidence, when viewed in conjunction with the old, will change the disposition of the claim. 38 C.F.R. § 3.156(a) (1994); Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Evidence of record at the time of the March 1988 denial included the veteran's service medical records. In the case of the left knee disorder, the service medical records contain a single notation dated June 1963 that the veteran complained of a dull pain in the left knee. No visible cause of the pain was identified. There are no further complaints attributable to the left knee. The veteran's separation examination dated in October 1966 showed no abnormalities or disorders of the left knee. Subsequent to that rating decision of March 1988, the veteran submitted medical records that he contends are new and material to his claim. Among them, a medical examination conducted by the Colorado Department of Social Services in November 1972 reported that the veteran's knees had normal deep tendon reflexes and normal motor and sensory functions. A scar above the left knee due to a gunshot wound was noted, but there was no nerve damage or residuals observed. No knee disorders were identified. Treatment records from Poudre Valley Memorial Hospital reveal that the veteran was seen in July 1975 for left knee pain and that he had a medial meniscectomy in May 1976 for a detached degenerative medial meniscus of the left knee. This additional evidence is clearly "new" but is not material in that it is not "relative to and probative of the issue at hand." That is, it does not tend to show that the veteran incurred a left knee disability in service. The evidence, when viewed as a whole, still shows that no disability was identified in service, and the disability of the left knee was not identified until long after service, more than ten years after the notation of knee pain in 1963. The veteran also testified at his personal hearing in May 1992 that he jumped at least 35 times from aircraft while in service, and that he sometimes hurt his knees on landing. Hearing transcript (T.) at 11. However, a veteran's lay observations as to the etiology of current disability does not constitute a valid medical opinion. Grottveit v. Brown, 5 Vet.App. 91 (1993). There has been no competent evidence presented to create a connection between the left knee disorder in 1975 and the minimal symptomatology observed during service. There is no possibility that the new evidence, when viewed in conjunction with the old, will change the disposition of the claim. Thus, the evidence is not new and material, and the claim is not reopened. As to the claim for service connection for hearing loss, the service medical records report normal hearing on entrance examination in January 1958. Elevated threshold levels, 40 decibels at 4000 hertz in the left ear and 35 decibels at 8000 hertz in the right ear, were reported in November 1960. Hearing was normal on audiometric examination in December 1964 except that thresholds at 8,000 hertz were "20" decibels, bilaterally. On examination for separation in October 1966, hearing was normal. The veteran has submitted no clinical evidence of a current hearing loss. At his May 1992 personal hearing, the veteran testified that he had considerable noise exposure while in service. He also testified that he believed that he had a hearing loss ever since service, but that he did not do anything about it for many years. T. at 7. The Board again finds that the veteran as a lay person lacks the requisite medical knowledge and expertise sufficient to offer a persuasive medical opinion. The Board takes note of the claim that the veteran makes that he was persuaded to "fake" audiometric test results on his separation examination in October 1966. T. at 4. However, he has presented no evidence to overcome the clinical results of that examination. Moreover, there is no medical evidence of a current hearing loss or any competent evidence associating such hearing loss to service. Consequently, no new and material evidence has been submitted to reopen the claim. Service Connection for Left Ear and Right Knee Disorders Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service or if pre-existing, was aggravated therein. 38 U.S.C.A. § 1110 (1991); 38 C.F.R. § 3.303(a) (1994) The threshold question here is whether the veteran has presented evidence of a current disability and credible evidence that links the current left ear disability with events in service or a service-connected disability. See Shogren v. Brown, 7 Vet.App.14 (1994). If he has not, his claim is not well grounded. If his claim is not well grounded, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. 5107(a) (1991). Service medical records show that the veteran was treated for mild otitis externa in August 1961, and recurrent otitis externa in September 1961. Scaling and scarring of the left eardrum and canal was noted. Although the otitis externa was described as "chronic" in September 1961, that designation is not dispositive in light of the absence of relevant symptomatology for so long after this episode. 38 C.F.R. § 3.303(b) (1994). On separation examination in November 1960, there was no abnormalities or disorders of the left ear shown. In the post service medical records submitted by the veteran, there is no evidence of any left ear disorder. At his personal hearing in May 1992, the veteran indicated that he had further problems with his ear in service, but that records were not available because he was treated by medics. T. at 9. However, he also admitted that he had no major infections, treatment, prescriptions or surgery for his ear after service. T. at 9. The Board finds that the veteran has not met the threshold requirement of presenting evidence of a current disability. This claim is therefore not well grounded and the Board has no duty to assist the veteran in further development of his claim. As for the right knee, the service medical records show that an X-ray was taken of that knee in June 1963 based on complaints of recurrent knee swelling and pain. No bone or joint abnormalities were found. On examination for separation in October 1966, no abnormalities or disorders of the knee were noted. The veteran testified at his hearing that he made as many as 35 jumps from airplanes and helicopters in service, and that he sometimes experienced pain in the knees afterward. See T. at 11. He also admitted that he has had no treatment for his right knee after service, and that when he experienced pain or swelling, he relied on self-treatment. See T. 16-17. The veteran's testimony cannot constitute valid medical diagnosis or an opinion as to medical causation. Grottveit v. Brown, 5 Vet.App. 91 (1993). In that the threshold requirement of a current disability is not shown, the claim is also not well grounded. The representative's request for further medical development has been noted. In the absence of any plausible link between the claim disabilities and service, the Board perceives no additional duty to assist at this juncture. ORDER New and material evidence to reopen the veteran's claims for service connection for a left knee disorder and for a bilateral hearing loss has not been received, and the appeal of these issues is denied. The veteran's claims for service connection for a left ear disorder, claimed as otitis externa, and for a right knee disorder are not well grounded and are dismissed. JOHN E. ORMOND 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.