Citation Nr: 0007686 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-03 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for bronchitis / pneumonia. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant, spouse and son ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The appellant served on active duty from September 1943 to June 1947. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1997 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Entitlement to service connection for bronchitis and pneumonia was denied by the Board in February 1995. 2. Evidence submitted by the appellant since the February 1995 Board decision, which denied service connection for bronchitis and pneumonia, is cumulative and redundant. 3. There is no competent medical evidence linking the appellant's current bilateral hearing loss disability to disease or injury in service. CONCLUSIONS OF LAW 1. The Board decision, which denied entitlement to service connection for bronchitis and pneumonia, is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. New and material evidence has not been submitted to reopen a claim for service connection for bronchitis and pneumonia. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1999). 3. The claim of service connection for bilateral hearing loss disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bronchitis/Pneumonia In March 1994, service connection for bronchitis and pneumonia was denied. The appellant appealed the denial, and the Board denied the claim in February 1995. A that time, the Board noted that the service records were negative for evidence of bronchitis and pneumonia. There was post service evidence of acute pneumonia shortly after service and a 1950 notation of bronchitis. The record also included the veteran's claim for service connection and statements advanced in support of that claim. That decision is final. However, a claim may be reopened upon the submission of new and material evidence. Under section 3.156 of the Code of Federal Regulations, when presented with a claim to reopen a previously finally denied claim, VA must determine if new and material evidence has been submitted. 38 C.F.R. § 3.156 (1999). New and material evidence is defined as follows: [E]vidence 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. Therefore, in this case, the Board must determine if new and material evidence has been submitted since the February 1995 Board decision. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Evans v. Brown, 9 Vet. App. 273, 283 (1996); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Court has held that when determining whether the evidence is new and material, VA must conduct a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc)); see also Hodge, supra. First, VA must determine whether the appellant 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 (West 1991). Id. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Evidence submitted or associated with the claims file in relation to service connection for bronchitis and pneumonia consisted of a VA outpatient treatment record dated October 1995, a March 1996 VA X-ray, a May 1996 VA X-ray, a March 1998 RO hearing transcript and a private doctor's letter dated, March 1998. A VA outpatient treatment record dated October 1995 showed that the appellant was seen for allergies. The assessment was bronchitis, resolved. The March 1996 VA X-ray revealed left maxillary sinusitis was well as as left ethmoid sinusitis. The other sinuses were clear. The lateral chest X-ray showed old healed rib fractures on the right and there was thought to be slight infiltrate in the left lower lobe. The examiner noted that the appellant had not taken a good inspiration. The May 1996 VA X-ray revealed very mild mucoperiosteal thickening in the floor of the right and left maxillary sinuses and anterior and middle ethmoid sinuses. The frontal sinuses were subinvoluted, the sphenoid sinus was clear and the osteomeatal units were normal. The middle and inferior turbinates on the side were somewhat prominent compared to that on the right side and did not suggest mucoperiosteal thickening. There was a septal deviation to the right however no fluid level was identified. No osseous destruction was noted and the nasal vault was intact. The impression was very mild mucoperiosteal thickening at the maxillary and ethmoid sinuses. At the March 1998 RO hearing the appellant testified that his bronchitis was due to a bad flu that he had in service. He stated that he was treated in service for his problem. The appellant indicated that he was exposed to a lot of sand, dust and sun while stationed in North Africa. He reported using a pulmonary machine to sleep and using inhalers. The appellant testified that he saw a doctor immediately after service, in 1947, for breathing problems and that later, he had VA treatment. He stated that he was in poor health. The appellant's wife testified that the appellant suffered sinus problems frequently. His son testified the appellant had bronchial problems and bad sinuses. In a letter dated, March 1998, a private doctor wrote that he had been the appellant's physician for many years. The private doctor reported frequent episodes of sinusitis and bronchitis. He indicated that he reviewed the appellant's service records where the appellant was exposed to sand storms in Africa during World War II. The private doctor stated that it is a known medical fact that sandstorms can act as irritating factor and cause inflammatory changes in the upper respiratory ways. The first part of the test is for VA to determine if the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a). The Board has determined that the appellant has not presented evidence, which is so significant that it must be considered in order to fairly decide the merits of the claim. In regard to the claim for pneumonia, the prior record had established a post service diagnosis of pneumonia. However, there was no competent evidence linking pneumonia to service. Since that determination, the veteran has not presented competent evidence of residuals of pneumonia or competent evidence linking residuals of pneumonia to service. Therefore, the evidentiary defects that existed at the time of the prior decision have not been cured. The evidence submitted in support of this part of the petition to reopen is not material. The VA outpatient treatment record dated October 1995, the March 1996 VA X-ray nor the May 1996 VA X-ray did not show that the appellant currently has residuals of pneumonia and do not relate bronchitis to an inservice event. The private doctor's March 1998 letter does not indicate that current bronchitis was related to inservice sand. He stated that the appellant has had bronchitis. He also noted that sand could be an irritant. However, the private doctor did not state that the appellant's bronchitis was due to service. This evidence does not constitute new and material evidence. 38 C.F.R. § 3.156(a). Similarly, remote VA treatment records that confirm a diagnosis of bronchitis are not new and material. When the Board had last addressed the issue, the record had established a post service diagnosis of bronchitis. Evidence that merely confirms a previously established fact is cumulative. According to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. The Board finds that the appellant's contentions and testimony are not new and material and are simply cumulative of evidence, which was previously of record. The appellant had previously stated and testified that his bronchitis was due to a bad flu that he had in service. His testimony and contentions provide no basis for reopening the claim, as he had previously asserted such facts. Although he asserts that his bronchitis and pneumonia are related to service, he is not competent to make such a medical opinion. See Moray v. Brown, 5 Vet. App. 211 (1993) ("If lay assertions of medical causation will not suffice initially to establish a plausible, well-grounded claim [for service connection], it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108"). Thus, his statements and testimony cannot serve as a basis to reopen his claim for service connection for bronchitis and pneumonia. In the February 1995 decision, the Board stated that the appellant had not submitted medical evidence supporting his contention that he had either chronic bronchitis or residuals of pneumonia related to his active service. Consequently the Board found that the appellant had not met the initial burden of submitting a well-grounded claim with regard to either issue. At the time of the February 1995 Board decision there was no evidence of bronchitis or pneumonia in service. An acute episode of pneumonia was noted more than one month after the appellant's separation from service. Post service diagnoses of record included bronchitis. However, there was no competent medical evidence of a nexus between bronchitis and service. None of the additional evidence listed above presents competent evidence of a diagnosis of bronchitis during service, competent evidence of a nexus between the current diagnosis of bronchitis and service, or establishes that the appellant currently has residuals of pneumonia. Thus, none of the prior evidentiary defects at the time of the February 1995 Board decision have been cured to warrant a reopening of the claim. Because the Board has determined that the appellant had not submitted new and material evidence, it need not reach the determination of whether the appellant has submitted evidence of a well-grounded claim for service connection for bronchitis or pneumonia or whether VA has fulfilled its duty to assist. See Winters, 12 Vet. App. at 206. Although VA is obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of the kind of evidence needed to reopen a previously denied claim, see Graves v. Brown, 8 Vet. App. 522 (1996), this obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the RO adequately fulfilled its obligation under section 5103(a) with the issuance of the statement of the case in February 1998, which provided the law and regulations pertaining to new and material evidence. In this respect, it is not shown that the appellant has put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could reopen his claim on the basis of new and material evidence, notwithstanding the fact that he has been provided opportunities to do the same. Thus, no additional development action is warranted. See Wood v. Derwinski, 1 Vet. App. 190 (1991). II. Hearing Loss The appellant alleged that his bilateral hearing loss is due to his service. Specifically, he alleged that exposure to loud noises from rifles, machine guns grenades and mortars caused his current bilateral hearing loss. The appellant testified at the March 1998 Regional Office hearing that he was an infantryman in World War II and that the constant exposure to artillery fire caused his hearing to deteriorate. The Board observes that the veteran's service records establish that he was a rifleman. He had been in no battles or campaigns. Therefore, the Board concludes that the veteran was not in combat and is not entitlement to application of 38 U.S.C.A. § 1154(b) (West 1991). However, his qualification record establishes that loaded and fired automatic weapons and was able to use weapons such as a pistol, grenade launcher, rocket launcher and hand grenades. Therefore, on a factual basis, the Board accepts that the veteran was exposed to noise during service. 38 U.S.C.A. § 1154(a) (West 1991). Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after service when all the evidence including that pertinent to service establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (1999). Service connection for sensorineural hearing loss may be granted if manifest to a compensable degree within 1 year of separation from service. However, the veteran is under an obligation to establish a well-grounded claim. In order for a claim to be well grounded there must be a medical diagnosis of a current disability, incurrence or aggravation of disease or injury in-service and a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). 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 his burden imposed by 38 U.S.C.A. § 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. See Grottveit v. Brown, 5 Vet. App. 91 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). A 1971 VA examination disclosed the presence of hearing loss. At that time, it was noted that there was a history of infantry and aircraft industry. The examiner noted that there was sensorineural deafness, probably secondary to acoustic trauma. Subsequent examinations have confirmed the presence of hearing loss disability. The claim for service connection for hearing loss disability is not well grounded. There is no competent evidence of hearing loss or hearing loss disability during active service or sensorineural hearing loss within 1 year of separation from service. The appellant's active service ended in June 1947; hearing loss was first shown in 1971. This case is devoid of medical opinions linking the appellant's current hearing disability to his active service. Although the 1971 examiner noted that there was a history of the infantry, it was also noted that there was a history of the aircraft industry. The impression that the hearing loss was probably due to acoustic trauma was not related to either event. Therefore, there remains an absence of a nexus to service. Stated differently, the examiner identified more than one risk factor without establishing a particular cause of the hearing loss. At the March 1998 RO hearing the appellant testified that he believes he has a hearing loss due to noise exposure during service in World War II. However, the appellant, is a layman and he is not competent to establish that a remote post service finding of hearing loss disability is due to noise exposure. We also note that the appellant's statements, even when accepted as true, do not establish continuity of symptomatology. Although there is evidence of post service disability, there is no competent nexus of the disability to service. Therefore, the claim is not well grounded. ORDER The petition to reopen the claim for service connection for bronchitis/pneumonia is denied. Entitlement to service connection for bilateral hearing loss disability is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals