Citation Nr: 9918222 Decision Date: 06/30/99 Archive Date: 07/07/99 DOCKET NO. 97-20 060 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA Regional Office (RO) in Baltimore, Maryland THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for left ear disorders. REPRESENTATION Appellant represented by: Maryland Veterans' Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John M. Clarkson, III, Counsel INTRODUCTION The veteran had active service from January to August 1943. In an October 1943 RO decision, service connection was awarded and a 10 percent disability rating was assigned for left ear otitis media, with discharge and hearing loss. In January 1947, service connection was awarded and a 10 percent disability rating was assigned for left ear mastoiditis. In March 1948, the RO reduced the rating for left ear mastoiditis to a noncompensable rating. In February 1949, the RO proposed to sever service connection for left ear otitis media, with discharge, based on a determination that the disability pre-existed service and was not aggravated by service. Service connection was severed for both left ear otitis media and left ear mastoiditis in May 1949. In an August 1949 decision, the Board of Veterans' Appeals (Board) denied an appeal for restoration of service connection for left ear otitis media and left ear mastoiditis with defective hearing. The veteran was informed of the decision in an August 1949 letter. In an October 1996 written statement, the veteran requested that his claim of service connection for left ear mastoiditis be reopened. In a December 1996 statement, he requested the reopening of his claim of service connection for a left ear disorder, including defective hearing. This appeal arises from a May 1997 rating decision in which the RO denied service connection for left ear disorders on the grounds that new and material evidence had not been submitted to reopen the claim. In an October 1998 Supplemental Statement of the Case, the RO acknowledged receipt of, and reviewed, certain evidence which had been added to the record. Thereafter, the RO characterized the issue on appeal as service connection for ear disease. However, the Board notes that the RO has not formally reopened the claim of service connection for left ear disorders. Accordingly, the issue on appeal appears as listed on the preceding page. FINDINGS OF FACT 1. Restoration of service connection for left ear otitis media and left ear mastoiditis with defective hearing was denied by the Board in August 1949 on the basis that the veteran's left ear disorders pre-existed service and were not aggravated by service. 2. Evidence submitted since the August 1949 Board decision tends to show the veteran's left ear disorders began or were aggravated by trauma in service. CONCLUSION OF LAW Evidence received since the Board denied the appeal for restoration of service connection for left ear otitis media and left ear mastoiditis with defective hearing is new and material and the claim of service connection for left ear disorders may be reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. § 3.156(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The evidence of record when the Board denied the appeal for restoration of service connection for left ear otitis media and left ear mastoiditis with defective hearing included the veteran's service medical records, which showed that his hearing and ears were normal on service entrance examination in January 1943. In May 1943, he complained of slight discharge from his left ear for the previous ten days. He gave a history of discharge from both ears as a child until a tonsillectomy and adenoid removal were performed. The diagnosis was acute otitis media. Acute otitis media was also diagnosed when the veteran was treated for a left ear discharge in July 1943. A July 1943 note from the Norfolk Naval Hospital indicated that, "According to [the veteran's] accepted statement, he has had an intermittent pain and discharge from the left ear since he was 5 years old. Filed letters from his civilian otologist and his mother establish the fact that he was under treatment for otitis media for a month or more about two months prior to enlistment." The diagnosis was left otitis media with hearing loss. The examiner noted that this disorder rendered the veteran physically unfit for retention in service. The service medical records also include a July 1943 Statement in Acquiescence, which was signed by the veteran, and noted that left ear otitis media existed prior to service and was not aggravated by service. In an October 1943 letter, the veteran's mother indicated that he had "a little ear trouble" in the preceding year and had been treated in September and October 1942. She added that the treating physician had said his ear was all right and she believed that his ear had been normal when he enlisted in service. She speculated that his current ear complaints were related to "abandon ship" training in service. He had a punctured ear drum, hearing loss, and discharge from his ear. In an October 1943 rating decision, the RO granted service connection and assigned a 10 percent disability rating for left ear otitis media, with discharge and defective hearing. The RO rating decision stated on its face that it was based upon a statement in the veteran's claim application, which indicated that a slight ear condition had existed one month before service and had been aggravated by training which included swimming and diving. On March 1944 VA examination, the veteran complained of poor hearing and occasional discharge from the left ear. He reported having had ear trouble since the age of 5. Diagnoses included left ear chronic purulent otitis and chronic left ear mastoiditis. On March 1944 VA x-ray examination of the left ear, the impression was chronic left ear mastoiditis. In a January 1945 statement, the veteran's representative submitted a claim for an increased rating for the service- connected left ear disability. A note from J. E. Talbot, M.D. indicated that the veteran had sustained considerable hearing loss over the previous year. On February 1945 VA examination, the veteran gave a history of a discharging ear since childhood, with recurrent episodes during service. Since separation from service, his hearing acuity had diminished and was becoming increasingly worse. The diagnosis was chronic, suppurative left ear otitis media. In a March 1945 rating decision, the RO concluded that the evidence did not show a material change in the service connected left ear disability. Subsequently in March 1945, the veteran submitted a claim for an increased disability rating for service-connected left ear disorder. He was hospitalized in March and April 1945, and examination revealed considerable tenderness to pressure over the mastoid. Diagnoses were acute and chronic left ear otitis media and acute left ear mastoiditis. In a May 1945 rating decision, the RO denied an increased rating for service-connected left ear disorder. On March 1946 VA examination of the veteran's ears, he gave a history of recurring left ear infections since the age of 5. He reported undergoing mastoidectomy surgery in March and November 1945. His left ear continued to drain, but his left ear hearing had improved since the second operation. The diagnosis was chronic left, suppurative, severe otitis media. VA records reflected outpatient treatment of the veteran from February 1945 to January 1947, and a note showed that he underwent a third mastoidectomy surgery in August 1946. The surgery was performed by W.F. Zinn, M.D. A December 1946 letter from Dr. Zinn confirmed medical treatment of the veteran since October 1945 and the August 1946 mastoidectomy. In a January 1947 rating decision, the RO granted service connection and a separate 10 percent disability rating for left ear mastoiditis. The veteran was hospitalized in September 1947, at the VA hospital in Fort Howard, Maryland, with symptoms relating to chronic left ear otitis media. Diagnoses included chronic left ear mastoiditis, chronic left ear purulent otitis media, and left ear conductive deafness. The examiner opined that the veteran's ear discharge would continue to improve and was expected to become completely dry. An October 1947 audiogram showed improvement for left ear hearing acuity in the lower tones as compared to a September 1947 study. On VA examination in January 1948, the veteran reported that his left ear was dry and his hearing had improved since a radical mastoidectomy in September 1947. Diagnoses included chronic, suppurative left ear otitis media, in remission and with no ear discharge since a fourth mastoid operation in September 1947. In a March 1948 rating decision, the RO assigned a noncompensable rating for left ear mastoiditis. On January 1949 VA examination, diagnoses included chronic, suppurative left ear otitis media, with mastoiditis; in remission and with no discharge since a fourth mastoid operation in September 1947, as well as defective left ear hearing. In a February 1949 rating decision, the RO proposed to sever service connection for left ear otitis media and left ear mastoiditis based on the veteran's reported history of intermittent pain and discharge from his left ear since the age of 5, and service medical records containing the military examiners' conclusion that chronic left ear otitis media existed prior to service and was not aggravated by service. In March 1949, the veteran's representative filed a notice of disagreement with the proposed severance of service connection and requested a hearing. At a hearing in March 1949, the veteran testified that, at the age of 5, he had had trouble with ear discharge as other children, but he denied having had ear infections or earaches prior to service. He was also treated for a sinus disorder in the year prior to his enlistment. When asked if he recalled any incident during service which, in his view, was responsible for his ear disorders, the veteran replied that he had been accustomed to frequent swimming, but was excused from swimming because of ear trouble which developed during swimming. In a May 1949 statement, Dr. Zinn noted the veteran's complaints of a painful ear with draining, an operation in August 1946, and a diagnosis of old chronic mastoiditis. In a May 1949 rating decision, the RO severed service connection for left ear otitis media and left ear mastoiditis, concluding that the evidence demonstrated that the left ear disorders pre-existed service and were not aggravated by service. In August 1949, the Board denied the appeal to restore service connection for left ear otitis media and left ear mastoiditis with defective hearing. The Board noted clinical statements indicating that the veteran had had intermittent pain and discharge in his left ear since the age of 5 and had been treated by a private otologist two months prior to service. The Board concluded that the evidence of record showed that left ear disorders had pre- existed service, and military and VA clinical records did not demonstrate aggravation of the pre-existing left ear disorders during service. The veteran was informed of the Board's decision in an August 1949 letter. Evidence added to the record since August 1949 includes a March 1957 letter from the RO to the veteran, informing him that service connection for left ear disorders had been severed in May 1949, and an appeal in connection with the severance was denied by the Board in August 1949. However, through inadvertence, VA disability benefit payments to the veteran had not been discontinued. In a March 1957 letter, the veteran indicated that he would seek reinstatement of the payment of disability benefits because he had been discharged from service due to left ear disorders, and continued to receive treatment for otitis media. In a September 1961 VA Form 1-9 and a September 1961 letter, the veteran requested that his claim of service connection for left ear disorders be reopened. He contended, in effect, that the service origin of his left ear disorders was shown by the fact that he had passed a service entrance examination, but had been required to undergo four ear operations since service and continued to receive treatment for permanent left ear disabilities. The RO acknowledged the veteran's September 1961 Form 1-9 and letter with an October 1961 letter informing him that the Board's August 1949 decision had been final and that new and material evidence was required to reopen the claim of service connection for left ear disorders. In August 1986, the veteran submitted a request to reopen the claim of service connection for left ear disorders. He noted that he had previously received VA disability benefits for his left ear disorders and desired that the benefits be resumed. He reported that he was receiving medical treatment for his ears from Dr. Dennis Branger and had previously received treatment for his ears from Dr. Dudley Babb. He also indicated that he was receiving disability benefits from the Social Security Administration (SSA). The veteran submitted copies of VA correspondence confirming his prior receipt of VA disability benefits. He also submitted copies of letters from Drs. James H. Biddison, Keith A. Manley, Mahmood Alikhan, William H. Goldiner, Sami A. Brahim, and James P. Keogh, referring to medical treatment for disorders not at issue in this appeal. In an October 1996 letter, the veteran asserted that he was seeking service connection for left ear mastoiditis and that no claim relating to this disorder had been previously adjudicated by VA. In a November 1996 letter, J. Dennis Branger, M.D. reported treating the veteran since 1982 for chronic ear problems. Subsequent to mastoid surgery, it was necessary for the veteran to be seen twice a year to prevent development of further infections and hearing loss. Records of medical treatment of the veteran by Dr. Branger, dating from April 1982 to September 1996, were also associated with the claims folder. The records reflect treatment of the veteran's right ear as well as his left ear, but do not contain a medical opinion as to the etiology of the left ear disorders. Records of medical treatment of the veteran by Dudley C. Babb, M.D., dating from December 1948 to October 1966, were added to the claims folder. These records do not contain a medical opinion as to the etiology of the left ear disorders. On VA audiometric evaluation in November 1996, the veteran gave a history of longstanding hearing loss, left ear greater than right, which began after he hit the water with his left ear during "abandon ship" exercises in 1943. In a December 1996 statement, the veteran asserted that he began having problems with ringing in his ear after abandon ship drills in service, and that statements in the claims folder to the effect that he had had left ear otitis media and left ear mastoiditis all of his life were not true. He had had usual childhood earaches up until the age of 5, but they had ceased when his tonsils were removed. He acknowledged having had a sinus infection and ear problems shortly before enlistment, but these problems had cleared up prior to his entrance into service and he had passed his service entrance examination. Only after service had he been required to undergo three mastoid operations and a radical mastoidectomy. The veteran also included a list of medical procedures he has undergone through the years. On VA examination of the veteran's ears in November 1996, he reported sustaining an ear injury during a drill in service. The examiner noted a positive mastoid defect on the left, but no evidence of active ear disease. Audiometric examination showed a conductive hearing loss on the left. The examiner did not opine as to the etiology of the left ear disorders. In a VA Form 9 submitted in June 1997 and at a hearing in October 1997, the veteran again asserted that he had had only childhood earaches when he was 5 years old. The earaches had ceased when his tonsils and adenoids were removed. Two months before his enlistment, he was treated by Dr. Talbot for a sinus infection. Steel tubes were placed in his nose and he had had an earache at the time. This condition was corrected with a few treatments prior to service. During abandon ship training in service, he jumped from a 21-foot platform, belly flopped and landed on his left ear, causing it to ring for several days. The veteran expressed his belief that this episode marked the onset of his left ear disorders. Since service, he had undergone multiple operations and continued to receive medical treatment for left ear disorders. Subsequent to the October 1997 hearing, copies of a November 1943 VA letter awarding the veteran disability benefits and the October 1943 letter from the veteran's mother were added to the record. The veteran also submitted copies of portions of his service medical records, which he annotated to further explain his contentions. He indicated that he had not been treated by a civilian otologist, but only by Dr. Talbot. He also asserted that he had been too ill to realize what he was doing when he signed the Statement of Acquiescence in July 1943, indicating that his left ear disorders pre-existed service and were not aggravated by service. In a March 1997 letter, Dr. Branger reported that he had been treating the veteran's recurrent draining ear and chronic mastoid problems for some time. He had reviewed unspecified records, which appear to have included some or all of the service medical records. Dr. Branger noted that the veteran's hearing and ears were normal on entrance examination. Dr. Branger indicated that he had subsequent unspecified records that showed that after the veteran was involved in an abandon ship drill that he developed a draining ear. He later underwent mastoid surgery and continued to have hearing loss and chronic, recurrent ear infection. Dr. Branger opined that, due to worsening of the veteran's condition, the abandoned ship drill caused him to have a chronic draining ear and subsequent mastoid operations and hearing loss. The RO then forwarded the claims folder to a VA otolaryngologist for a medical opinion regarding the etiology of the veteran's left ear disorders. In an August 1998 medical opinion, the otolaryngologist explained that the March 1944 x-ray of the veteran's ears showed that the left ear never developed normally and indicated chronic ear disease rather than a temporary disorder which ceased after the veteran's tonsils were removed. The examiner added that, a service medical record showing a perforation of the left ear drum with a foul discharge from that location was a classic description of cholesteatoma. The examiner indicated that the bony erosion described in the records indicated that advanced, rather than early cholesteatoma was present. The veteran's description of having been treated for sinusitis with metal rods prior to service suggested direct delivery of decongestants to treat the Eustachian tube for chronic cases of otitis media and persistent serous otitis. The examiner cited additional evidence from the record and concluded that the veteran's left ear disorders pre-existed service and were not aggravated by service. In an October 1998 statement, the veteran contended that the evaluation by the VA otolaryngologist in August 1998 was inadequate because the examiner did not have access to the entire record and had not examined the veteran personally. Analysis Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by service. 38 U.S.C.A. § 1110. The Board's August 1949 decision denying the appeal for restoration of service connection for left ear otitis media and left ear mastoiditis with defective hearing is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. To reopen the claim, the veteran must present or secure new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New and material evidence" means evidence not previously submitted which bears directly and substantially upon the subject matter under consideration, which is neither cumulative or redundant, and which by itself or in consideration 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); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence added to the record since the August 1949 Board decision includes Dr. Branger's March 1997 letter. The letter was not submitted until 1997 and is not duplicative of other evidence in the record in August 1949. It is new. The letter discusses the left ear disorders at issue and pertinent medical evidence, and contains a medical opinion attributing the veteran's left ear disorders to trauma in service. Dr. Branger's letter bears directly and substantially upon the subject matter under consideration, namely whether the veteran's left ear disorders began in, or were aggravated by, service. Dr. Branger's letter is so significant that it must be considered to fairly decide the merits of the claim and is, therefore, material. As new and material evidence has been submitted, the claim of service connection for left ear disorders may be reopened. ORDER The claim of service connection for a left ear hearing loss disorder is reopened. REMAND The claim of service connection for a left ear hearing loss disorder has been reopened. The next step is a de novo determination as to whether the claim is well-grounded. Elkins v. West, No. 97-1534 (U.S. Vet. App. Feb. 17, 1999) (en banc). In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus bewteen the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Here, there is competent evidence of current left ear disorders. There is evidence of incurrence or aggravation of the left ear disorders in service. And, Dr. Branger has related the onset of the left ear disorders to trauma in service. Therefore, all three elements of a well-grounded claim are present. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). The United States Court of Veterans Appeals (since March 1, 1999, the United States Court of Appeals for Veterans Claims or Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which the veteran has referred and obtaining adequate VA examinations; the Court has also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). The duty to assist the veteran includes an obligation to obtain the records underpinning an SSA decision awarding disability benefits to the veteran. Masors v. Derwinski, 2 Vet. App. 181 (1992). Here, the record contains two medical opinions directly bearing on the etiology of the veteran's left ear disorders. However, it is unclear whether Dr. Branger had an opportunity to review the entire record, including the March 1944 VA x- ray examination report, and other medical records referenced in the August 1998 medical opinion by the VA otolaryngologist. It is also unclear whether the VA otolaryngologist had access to the complete record because that opinion did not make any reference to Dr. Branger's opinion, which is favorable to the veteran's claim. The veteran has also indicated that he is receiving SSA disability benefits and the records underpinning the SSA decision granting disability benefits should be obtained. Accordingly, for the foregoing reasons, the claim is REMANDED to the RO for the following: 1. The RO should obtain all records of private or VA medical treatment of the veteran for left ear disorders which have not been previously associated with the claims folder, including records from J. Dennis Branger, M.D., of Baltimore, Maryland. The RO should also request Dr. Branger to identify the records referred to in his March 1997 statement which he indicated showed that the veteran was involved in an abandoned ship drill. In addition, the RO should inquire of the veteran as to those places at which he is currently receiving treatment for left ear disorders, and attempt to obtain those records he identifies, that are not already associated with the claims folder. Consent forms for the release to the VA of the specified medical records should be obtained from the veteran. 2. The RO should obtain copies of any SSA decision awarding disability benefits to the veteran and of all medical records upon which such decision was based. 3. After all of the above records have been obtained, the veteran should be afforded an examination by a VA physician skilled in the evaluation of ear disorders and hearing loss disability to determine the presence, etiology and severity of any left ear disorder(s). If feasible, the examination should be performed by a physician who has not previously treated or examined the veteran. Such tests as the examining physician deems necessary should be performed. The examination should include an audiometric evaluation. The examiner should set forth for the record each currently found left ear disorder. The examiner should furnish an opinion as to whether it is at least as likely as not that any left ear disorder(s) is/are the result of, or increased in severity beyond natural progress due to, trauma in service, as claimed by the veteran. The clinical findings and reasoning which form the basis of the opinion should be clearly set forth. The claims folder must be available to the examiner for review in conjunction with the examination. 4. The RO should then review the veteran's claim of service connection for left ear disorders on a de novo basis to determine whether it may be granted. If the claim remains denied, the veteran and his representative should be furnished an appropriate Supplemental Statement of the case, and given a reasonable opportunity to respond. The case should be forwarded to the Board for further appellate consideration. No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. K.J. ALIBRANDO Acting Member, Board of Veterans' Appeals