Citation Nr: 0216734 Decision Date: 11/20/02 Archive Date: 11/26/02 DOCKET NO. 02-06 826A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for bilateral defective hearing. ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2001 from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing. The record shows that the veteran's original claim for service connection for bilateral defective hearing was finally denied by rating decision of May 1980, and that an unappealed rating decision of February 1996 determined that new and material evidence had not been submitted to reopen that claim. The claimant undertook to reopen his claim for service connection for bilateral defective hearing in February 2001. The veteran's previous appointment of a service organization representative has been revoked, and the veteran represents himself in this matter. During the pendency of this appeal, the claimant elected to have his claim reviewed by the RO's Decision Review Officer, and that review was accomplished in April 2002. There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2002)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (the Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The record shows that the veteran was notified of the provisions of the VCAA by RO letter of May 16, 2001, and by Statement of the Case issued in April 2002. Final regulations to effectuate the VCAA were published on August 29, 2001 with the same effective date of the VCAA, November 9, 2000. Except for the amendment to 38 CFR § 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii), effective August 29, 2001, governing reopening of previously and finally denied claims, the provisions of this final rule apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. The record shows that the instant claim to reopen was filed in February 2001, and that the revised regulations pertaining to reopened claims are applicable to this appeal. The record further shows that RO letters of February 28, 2001 and May 16, 2001, informed the claimant of what evidence was needed to establish entitlement to service connection for bilateral defective hearing; what evidence was already of record; the type of evidence which was considered "new" and the type of evidence which was considered "material"; the VA's duty to assist him in obtaining evidence necessary to support his claim, including a VA examination or medical opinion; what evidence the RO would obtain, including medical records, employment records, and records from other federal agencies identified by the claimant, and what evidence the veteran would obtain; and that VA would obtain all private medical records identified by the claimant and for which he provided medical record release authorizations (VA Forms 21- 4142). The claimant was further notified that the ultimate responsibility for providing evidence to support his claim lay with him. Thus, the appellant has been notified of the information and evidence necessary to substantiate his claim, and he has been informed of what information and evidence would be obtained by VA and what information and evidence he needed tp provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the Court held that where a statute or regulation changes during the appellate process, the version more favorable to the claimant shall apply. VA's General Counsel has determined, in a precedential opinion that the Board is bound to follow, that the VCAA is more favorable to claimants than the law in effect prior to its enactment. See VAOPGCPREC 11-00; Janssen v. Principi, 15 Vet. App. 123 (2001) (per curiam). The record shows that all relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and that VA's duty of notification to the claimant of required information and evidence and its duty to assist him in obtaining all evidence necessary to substantiate his claims has been fully met. The RO has obtained the claimant's complete service medical records, as well as all private and VA medical records identified by the veteran, and the veteran has declined a hearing before an RO Hearing Officer or before the Board. He was afforded a comprehensive VA audiology examination for his claimed bilateral defective hearing in March 1980. The appellant has not argued a notice or duty to assist violation under the VCAA, and the Board finds that it is clear that the appellant was fully notified and aware of the type of information and evidence required to substantiate his claim. In view of the extensive factual development in the case, as demonstrated by the record on appeal, the Board finds that there is no reasonable possibility that further assistance would aid in substantiating the appellant's claim. For those reasons, further development is not necessary for compliance with the provisions of 38 U.S.C.A. §§ 5103 and 5103A (West Supp. 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and VA's duty of notification to the claimant of required information and evidence and of its duty to assist her in obtaining all evidence necessary to substantiate his claim have been fully met. 2. On service entrance examination, the veteran was found to have evidence of old otitis media of the left tympanic membrane, and he was given an H-2 profile at service entry, indicative of slightly below normal hearing acuity; that condition had undergone no increase in severity at the time of service separation examination in March 1971, and his original claim for service connection for bilateral defective hearing was finally denied in May 1980. 3. A rating decision February 1996 determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing; that decision was not appealed and became final after one year. 4. In February 2001, the veteran undertook to reopen his claim for service connection for bilateral defective hearing by submitting additional evidence. 5. The additional evidence submitted since the last final decision denying service connection for bilateral defective hearing includes no evidence 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. CONCLUSION OF LAW New and material evidence not having been submitted to reopen the claim for service connection for bilateral defective hearing, that claim is not reopened. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Evidence The veteran's DD Form 216 shows that he served on active duty in the United States Air Force from April 1969 to March 1971; that his military occupational specialty was Weapons Mechanic (462)l; and that his last duty assignment was to the 4535th Combat Crew Training Squadron, George Air Force Base. The veteran's service entrance examination, conducted in September 1968, showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 25 LEFT 15 15 15 40 In addition, examination of his ears revealed evidence of old otitis media of the left tympanic membrane. He was given an H-2 profile at service entry, indicative of slightly below normal hearing acuity. The veteran's service medical records show that a report of ear examination in May 1969 showed that the veteran was a trainee in a student squadron at Lowery Air Force Base, and that examination revealed no perforations of the tympanic membranes, no drainage from the ears, and no evidence of malformations or previous surgery. A reference audiogram, conducted in May 1969, showed that the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 15 LEFT 15 10 0 0 50 The service medical records further show that the veteran was seen in November 1969, and examination revealed that both tympanic membranes were scarred but freely movable; that he could hear a moderate whisper, bilaterally; and that the impression was hearing loss, conductive versus neurosensory, and possible Eustachian tube malfunction. He complained of left ear tinnitus after noise exposure, and offered a history of left ear infection in 1963. Audiometric testing, conducted in November 1969, showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 20 25 LEFT 40 35 25 30 35 The veteran's service medical records disclose that in December 1969, he was referred to the March Air Force Base ENT Clinic with findings of bilateral hearing loss, scarred tympanic membranes, and a history of otitis media and probably barotitis. The provisional diagnosis was bilateral hearing loss of unknown etiology. A report of March Air Force Base ENT Clinic evaluation of the veteran's ears and hearing acuity in February 1970 revealed that he had an early high frequency neurosensory hearing loss; that he offered a history of shooting prior to service entry; that his preinduction physical examination showed early hearing loss; and that the current audiogram showed no change. Examination revealed bilateral tympanic sclerosis. A report of service department audiogram, conducted in February 1970, showed that that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 30 LEFT 10 10 10 10 25 His speech discrimination was 100 percent correct in both ears. The diagnosis on ENT evaluation in February 1970 was early high frequency hearing loss, unchanged in the past one to two years, and a H-1 profile was ordered, with continued flight line duties and another hearing check in one year. A report of medical history prepared by the veteran in connection with his service separation examination cited a history of ear trouble. On his report of service separation examination, conducted in March 1971, the examining physician noted that the veteran was evaluated at March Air Force Base in December 1969 for bilateral hearing loss; that he has a history of scarred tympanic membranes secondary to otitis media; and that there was then no progression of hearing loss. The veteran's service separation examination, conducted in March 1971, disclosed that examination of his ears was normal. A report of service department audiogram, conducted in February 1970, showed that that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 15 LEFT 20 5 0 0 25 The diagnosis was mild high frequency hearing loss. The veteran's original application for VA disability compensation benefits (VA Form 21-526), received at the RO in February 1980, sought service connection for bilateral defective hearing, with claimed onset in August 1970. In support of his claim, he submitted a letter from the Ross County Medical Center (Dr. W.C.), dated in February 1980, and private treatment records from that physician showing that the claimant was seen in January 1980 with complaints of intermittent hearing problems since his discharge from service; that he was a weapons mechanic loading bombs on F4 aircraft; that he had high frequency noise exposure for more than 3 months; and that he feels numbness in the left ear with drainage down his throat. Examination revealed a moderate degree of tympanosclerosis probably secondary to previous infections, but both eardrums appeared intact, the external ears were clear, and the nose and throat were basically normal. Audiometric testing in February 1980 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 30 LEFT 15 10 5 0 His speech discrimination was 100 percent correct in both ears. The diagnosis was bilateral high frequency sensorineural hearing loss. The examiner stated that the veteran had a service-connected hearing loss. In a February 1980 letter from Dr. W.C., he stated that the veteran had a bilateral high frequency sensorineural hearing loss, and that such condition was due to excessive exposure to loud noises. In response to an inquiry from the RO, Dr. W.C. reiterated the information provided in his treatment records and stated that the veteran had a bilateral high frequency sensorineural hearing loss, and that such condition was due to high frequency noise exposure (F4 bomber). A lay statement from the veteran's father, dated in April 1980, stated that he first became aware of the veteran's ear problems through his letters written while stationed at George Air Force Base; that in approximately February 1970, the veteran wrote to tell him that he was being treated by a specialist at March Air Force Base for complaints of a dull constant pain in the ears, with ringing in the ears; that he was relieved of his duties on the flight line at that time because of the high-pitched noise of the fighter aircraft; that his hearing was periodically checked at George Air Force Base for the next 3 to 4 months to evaluate his hearing; and that he was eventually returned to his regular duty on the flight line. It was further asserted that at the time of his service separation examination, the examiner told him that he had permanent ear damage and to file a claim with VA, but the veteran did not realize the seriousness of his condition, and failed to take that action. In addition, the veteran's father stated that after returning from service, the veteran complained about ear pain and ringing in the ears, and that about two months previously, he had complained of dizziness, as well as ear pain and ringing in the ears; and that an ear specialist, (Dr. W.C.), told him how serious his ear damage was and that such damage was caused by high-pitched noise. A lay statement from the veteran's spouse, who married the veteran in September 1969, was received at the RO in April 1980. She stated that while stationed at George Air Force Base, the veteran was sent to March Air Force Base and relieved of his duties on the flight line while testing of his ears was being conducted; that on numerous occasions during their marriage, it had been necessary to cold-pack his ears; and that in recent years (1978-1979), he had difficulty understanding when spoken to, requiring that statements be repeated; that the veteran had recently been tested by an ear specialist (Dr. W.C.); and that his ear condition was found to be deteriorating. In a Statement in Support of Claim (VA form 21-4138), submitted by the claimant in April 1980, the veteran noted that he was seen for his condition during service at George Air Force Base in December 1969; at March Air Force Base in January 1870, and at George Air Force Base in March 1971 for his service separation examination. A report of VA audiology examination, conducted in April 1980, cited the veteran's complaints of difficulty hearing, and dizzy spells, with no history of injury or infection of the ears. Examination revealed hearing loss in both ears, with negative findings on examination of the right ear and evidence of a left eardrum perforation with scarring. The diagnosis was bilateral hearing loss with tinnitus, and a perforation of the right [sic] tympanic membrane with scarring. The examiner did not relate those findings to the veteran's period of active service. On the authorized VA audiology evaluation in April 1980, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 35 LEFT 15 5 0 30 Speech audiometry revealed speech recognition ability of 10 percent correct in the right ear, and 8 percent correct in the left ear. A rating decision of May 1980 denied service connection for bilateral defective hearing, for tinnitus, and for perforation of the tympanic membranes, bilaterally. The veteran was notified of that action and of his right to appeal by RO letter of June 8, 1980, and filed a Notice of Disagreement and requested a personal hearing before an RO Hearing Officer. An Statement of the Case was issued in September 1980, but the veteran failed to submit his Substantive Appeal (VA Form 9), his appeal lapsed, and the rating decision of May 1980 became final after one year. In December 1995, the veteran undertook to reopen his claim for service connection for bilateral defective hearing by submitting additional evidence. That evidence consisted of duplicate copies of the January and February private medical records and report of audiometric testing from Dr. W.C., and a private hospital report from the Berger Hospital emergency room showing that the veteran was seen in May 1980 for a left ear infection of one weeks' duration. Examination revealed a reddened left tympanic membrane with purulent drainage, diagnosed as left otitis media. A rating decision of February 1996 determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing. The veteran was notified of that action and of his right to appeal by RO letter of February 13, 1996, but did not initiate an appeal and that decision became final after one year. In February 2001, the veteran undertook to reopen his claim for service connection for bilateral defective hearing by submitting additional evidence. That evidence consisted of private treatment records from Berger Hospital, dated from April 1986 to November 1989, and private treatment records from Circleville Family Associates, dated from September 1976 to November 1999. By RO letter of February 28, 2001, the veteran was informed that the RO had received his claim to reopen the issue of service connection for bilateral defective hearing, and that his claim was being reviewed to determine whether additional evidence was needed. He was informed that the RO would obtain and review his complete service medical records, all medical records from VA medical centers, and all medical evidence he provided, and would notify him of what additional evidence was needed to process his claim. In May 2001, the veteran was provided a complete copy of his service medical records through the office of his Congressman. By RO letter of May 16, 2001, the veteran was informed of what evidence was needed to establish entitlement to service connection for hearing loss; what evidence was already of record; the type of evidence which was considered "new" and the type of evidence which was considered "material"; the VA's duty to assist him in obtaining evidence necessary to support his claim, including a VA examination or medical opinion; what evidence the RO would obtain, including medical records, employment records, and records from other federal agencies identified by the claimant, and what evidence the veteran would obtain; and that VA would obtain all private medical records identified by the claimant and for which he provided medical record release authorizations (VA Forms 21- 4142). The claimant was further notified that the ultimate responsibility for providing evidence to support his claim lay with him. No response to that letter was received from the claimant, and he failed to identify any additional medical evidence or to provide medical record release authorizations identifying any other source of medical evidence. A rating decision of July 2001 determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing. The veteran was notified of that action and of his right to appeal by RO letter of August 20, 2001, and submitted a Notice of Disagreement in October 2001. With that Notice of Disagreement, he submitted a duplicate copy of medical records from Circleville Medical Associates, and stated that no hearing problem was shown on service entrance examination, but a hearing problem was shown on his service separation examination. By RO letter of December 13, 2001, the veteran was notified of his right to review of his case by the RO's Decision Review Officer, or that he can pursue the traditional appeals process. He was asked to state whether he desired review of his case by the RO's Decision Review Officer, or to pursue the traditional appeals process. In a Statement in Support of Claim (VA form 21-4138), submitted by the claimant in January 2002, April 1980, he elected to have his claim reviewed by the RO's Decision Review Officer. The veteran's claim was reviewed and the decision upheld by the RO's Decision Review Officer in April 2002, and a Statement of the Case was issued on April 24, 2002. That Statement of the Case informed the claimant of the issue addressed, the evidence considered, the adjudicative actions taken, the pertinent law and regulations governing the reopening of claims for service connection, the provisions of the VCAA, the decision reached, and the reasons and bases for that decision. That Statement of the Case further notified the claimant of VA's duty to assist him by obtaining all evidence in the custody of military authorities or maintained by any other federal, State or local government agency, as well as any medical, employment, or other non-government records which are pertinent or specific to his claim; and for which the claimant identified and provided a record release authorization permitting VA to obtain those records. In addition, he was informed that should efforts to obtain records identified by the claimant prove unsuccessful for any reason which the claimant could remedy, the VA would notify the claimant and advise him that the ultimate responsibility for furnishing such evidence lay with the claimant. The veteran perfected his appeal by the timely filing of his Substantive Appeal (VA Form 9) in June 2002, and declined a hearing before the Board. By letter of September 17, 2002, the veteran's service organization representative cited the history of his claims for VA disability compensation benefits, and revoked its representation of him. By RO letter of September 17, 2002, the veteran was notified that his case was being transferred to the Board, and informed of his right to submit additional evidence, to have a hearing before the Board, to appoint a representative to represent him before the Board, and the time limit for those actions. No response to that letter or other communication has been received from the claimant other than a duplicate copy of his Substantive Appeal. II. Analysis Under Barnett v. Brown, 83 F.3d. 1380 (Fed.Cir.1996), any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, a potential jurisdictional defect may be raised by the court or tribunal sua sponte or by any party and at any stage in the proceedings and, once apparent, must be adjudicated. Title 38 U.S.C.A. § 7104(b) does not vary the Board's jurisdiction according to how the RO ruled. Accordingly, the Board must independently address the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral defective hearing. In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(a) (2001). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree within the initial post service year. 38 C.F.R. §§ 3.307, 3.309(a) (2001). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 1991 & Supp. 2003). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111 (West 1991 & Supp. 2002); 38 C.F.R. § 3.304(b) (2002). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991 & Supp. 2002); 38 C.F.R. § 3.306(a) (2002). (b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. If a condition noted during service is not shown to be chronic, then continuity of symptomatology after service generally is required for service connection. 38 C.F.R. § 3.303(b) (2002). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The Court has held that a lay person, such as the veteran, is not competent to offer evidence that requires medical knowledge, such as the diagnosis or cause of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If such testimony is not competent, it cannot be probative. The Court has further held that a veteran's statements are competent as to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Court has held that the Board has the duty to assess the credibility and weight to be given to the evidence, but must provide reasons and bases for rejecting critical evidence, expert or otherwise. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In general, RO decisions which are unappealed become final. See 38 U.S.C.A. § 7105 (West 1991 & Supp. 2002; 38 C.F.R. § 20.1103 (2002) The governing regulations provide that an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2002). Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is defined as evidence 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. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (the Court) held 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. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Once the evidence is found to be new and material and the claim is reopened, the presumption that the evidence is credible no longer applies. In the following adjudication [i.e., de novo review], the RO must determine both the credibility and weight of the new evidence in the context of all the evidence, both old and new. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kates v. Brown, 5 Vet. App. 93, 95 (1993). The United States Court of Veterans' Appeals (the Court) has held that where a veteran's service medical records clearly reflect an objectively measurable and measured worsening of hearing during service, the Board is required to determine whether that worsening constituted an in-service increase in disability. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). That decision further held that "a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service." Hensley, 5 Vet. App. at 164. For the purposes of applying the laws administered by VA, 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 (2002) The United States Court of Appeals for Veterans' Claims (the Court) has held that the duty to assist is not a one-way street. If a veteran wishes help in developing a claim, he or she cannot passively wait for it in those circumstances where he or she may or should have evidence that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); reconsidered, 1 Vet. App. 406 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). Further, the Federal Circuit Court has held that the general rule is that where evidence to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward. Jensen v. Brown, 19 F.3d. 1413 (Fed. Cir. 1994). The record shows that the veteran's original claim for service connection for bilateral defective hearing was filed in February 1980; that the veteran filed a Notice of Disagreement with the rating decision of May 1980 denying his original claim for service connection for bilateral defective hearing; and that he was issued a Statement of the Case, but failed to submit a Substantive Appeal (VA Form 9), and that decision became final. He subsequently undertook to reopen his claim for service connection for bilateral defective hearing, and a RO decision of February 1996 determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing. That decision was not appealed and became final. The veteran subsequently undertook to reopen his claim for service connection for bilateral defective hearing in February 2001, and a rating decision of July 2001 determined that new and material evidence had not been submitted to reopen the claim for service connection for bilateral defective hearing, giving rise to this appeal. Thus, the record shows that the veteran's claim for service connection for bilateral defective hearing was last finally denied by rating decision of February 1996. The evidence contained in the record at the time of the last final denial of the veteran's claim for service connection for bilateral defective hearing in February 1996 included the veteran's complete service medical records; private treatment records from the Ross County Medical Center (Dr. W.C.), dated in January and February 1980, and a letter from that physician, dated in March 1980; lay statements from the veteran's father and spouse, received in April 1980; and a report of VA audiology examination, conducted in April 1980. As noted, the veteran's DD Form 214 shows that he served on active duty in the United States Air Force from April 1969 to March 1971; that his military occupational specialty was Weapons Mechanic (462); and that he served on active duty with the 4535th Combat Crew Training Squadron, George Air Force Base. The veteran's service entrance examination revealed evidence of old otitis media of the left tympanic membrane, and he was given an H-2 profile at service entry, indicative of slightly below normal hearing acuity. Thus, the presumption of soundness at entry is rebutted by findings of old otitis media of the left tympanic membrane, as well as defective hearing such as to warrant assignment of an H-2 profile at the time of his service entrance examination, indicative of slightly below normal hearing acuity. While the veteran offered a history of an left ear infection in 1963 on ear and audiometric examination in November 1969, the clinical findings at service entry showed clinical findings of evidence of an old otitis media at the time of service entry, and the Board is not required to rely upon the medical history offered by the claimant. The Board therefore concludes that the record reveals clear and unmistakable evidence that the veteran had bilateral defective hearing at service entry, as well as evidence of an old otitis media infection of the left ear prior to service entry. The veteran subsequently underwent additional ENT examinations and audiometric testing while on active duty. The service medical records further show that the veteran was seen in November 1969, and examination revealed that both tympanic membranes were scarred but freely movable; that he could hear a moderate whisper, bilaterally; and that the impression was hearing loss, conductive versus neurosensory, and possible Eustachian tube malfunction. He complained of left ear tinnitus after noise exposure, and offered a history of left ear infection in 1963, and a perforated left tympanic membrane. In December 1969, the veteran was referred for ENT examination at March Air Force Base, with a provisional diagnosis of bilateral hearing loss of unknown etiology. A report of ENT Clinic evaluation of the veteran's ears and hearing acuity at March Air Force Base in February 1970 revealed that he had an early high frequency neurosensory hearing loss; that he offered a history of shooting prior to service entry; that his preinduction physical examination showed early hearing loss; and that the current audiogram showed no change. Eustachian tube malfunction was neither demonstrated nor diagnosed. Examination revealed bilateral tympanic sclerosis. A report of service department audiogram, conducted in February 1970, showed that that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 30 LEFT 10 10 10 10 25 His speech discrimination was 100 percent correct in both ears. The diagnosis on ENT evaluation in February 1970 was early high frequency hearing loss, unchanged in the past one to two years, and a H-1 profile was ordered, with continued flight line duties and another hearing check in one year. A report of medical history prepared by the veteran in connection with his service separation examination cited a history of ear trouble. On his report of service separation examination, conducted in March 1971, the examining physician noted that the veteran was evaluated at March Air Force Base in December 1969 for bilateral hearing loss; that he has a history of scarred tympanic membranes secondary to otitis media; and that there was then no progression of hearing loss. The veteran's service separation examination, conducted in March 1971, disclosed that his ears were normal. A report of service department audiogram, conducted in February 1971, showed that that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 15 LEFT 20 5 0 0 25 The diagnosis was mild high frequency hearing loss. The Board finds that the veteran's service entrance examination, conducted in September 1968, revealed evidence of old otitis media of the left tympanic membrane; that he was given an H-2 profile at service entry, indicative of slightly below normal hearing acuity. At the time of service separation examination in March 1971, the veteran's hearing acuity, as compared to the findings on service entrance examination, reveal that his hearing acuity was essentially the same as was found on his service entrance examination, contraindicating any increase in hearing loss during his period of active service, and he was diagnosed with mild high frequency hearing loss, equivalent to the slightly below normal hearing acuity shown at service entry. Further, the veteran's service medical records are silent for complaint, treatment, findings or diagnosis of otitis media in either ear during active service, and the veteran has not asserted that he was treated for disease or injury to the ears during active service. In additional, the veteran's hearing acuity at the time of service separation did not meet the criteria for bilateral defective hearing, i.e., for the purposes of applying the laws administered by VA, 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 (2002) Private treatment records from the Ross County Medical Center (Dr. W.C.), dated in January and February 1980, show that the claimant was seen in January 1980 with complaints of intermittent hearing problems since his discharge from service; that he was a weapons mechanic loading bombs on F4 aircraft; that he had high frequency noise exposure for more than 3 months; and that he feels numbness in the left ear with drainage down his throat. Examination revealed a moderate degree of tympanosclerosis probably secondary to previous infections, but both eardrums appeared intact, the external ears were clear, and the nose and throat were basically normal. Audiometric testing accomplished in February 1980 revealed increased pure tone thresholds on the left, in decibels, since service separation from 15 to 20 decibels at 500 hertz, from 5 to 10 decibels at 1000 hertz, and from 15 to 40 decibels at 4000 hertz ; and increased pure tone thresholds on the right, in decibels, since service separation from 15 to 20 decibels at 500 hertz, from 5 to 15 decibels at 1000 hertz, from 5 to 10 decibels at 2000 hertz, from 5 to 30 decibels at 3000 hertz, and from 15 to 30 decibels at 4000 hertz. The veteran's speech discrimination was 100 percent correct in both ears. The diagnosis was bilateral high frequency sensorineural hearing loss. Thus, the veteran had a defective hearing of the left ear that met VA's criteria for impaired hearing to be considered a disability in February 1980, approximately nine (8) years after final service separation. The examiner stated that the veteran had a service-connected hearing loss. In a February 1980 letter from Dr. W.C., he stated that the veteran had a bilateral high frequency sensorineural hearing loss, and that such condition was due to excessive exposure to loud noises. In response to an inquiry from the RO, Dr. W.C. reiterated the information provided in his treatment records and stated that the veteran had a bilateral high frequency sensorineural hearing loss, and that such condition was due to high frequency noise exposure (F4 bomber). The Board notes that there is no evidence that Dr. W.C. reviewed the veteran's service medical records, or that he was familiar with the defective hearing and evidence of old otitis media of the left ear shown at service entry. A lay statement from the veteran's father, dated in April 1980, stated that the veteran's had written him in approximately February 1970 concerning his ear problems while stationed at George Air Force Base; that the veteran wrote that he was being treated by a specialist at March Air Force Base for complaints of a dull constant pain in the ears, with ringing in the ears; that he was relieved of his duties on the flight line at that time because of the high-pitched noise of the fighter aircraft; that his hearing was periodically checked at George Air Force Base for the next 3 to 4 months to evaluate his hearing; and that he was eventually returned to his regular duty on the flight line. In addition, the veteran's father stated that after returning from service, the veteran complained about ear pain and ringing in the ears, and that about two months previously, he had complained of dizziness, as well as ear pain and ringing in the ears. A lay statement from the veteran's spouse, who married the veteran in September 1969, received at the RO in April 1980, stated that while stationed at George Air Force Base, the veteran was sent to March Air Force Base and relieved of his duties on the flight line while testing of his ears was being conducted; that on numerous occasions during their marriage, it had been necessary to cold-pack his ears; and that in recent years (1978-1979), he had difficulty understanding when spoken to, requiring that statements be repeated. A report of VA audiology examination, conducted in April 1980, showed a diagnosis of bilateral hearing loss with tinnitus, and a perforation of the right tympanic membrane with scarring. The additional evidence added to the record since the last final rating decision of February 1996 declining to reopen the veteran's claim for service connection for bilateral defective hearing includes private treatment records from Berger Hospital, dated from April 1986 through November 1989; a February 2001 letter from the VAMC, Chillicothe, stating that there were no records of treatment of the veteran at that facility, and reports of medical treatment of the claimant at Circleville Medical Associates, a private clinic, between September 1976 and November 1999. The Board must now determine whether the additional evidence added to the record since the last final rating decision of February 1996 is both new and material to the issue of service connection for bilateral defective hearing. Private treatment records from Berger Hospital, dated from April 1986 through November 1989, show no complaint, treatment, findings or diagnosis of ear problems or hearing loss, and those records are not new and material to the issue of service connection for bilateral defective hearing. A February 2001 letter from the VAMC, Chillicothe, states that there were no records of treatment of the veteran at that facility, and that evidence is not new and material to the issue of service connection for bilateral defective hearing. Private treatment records from Circleville Medical Associates, a private clinic, between September 1976 and November 1999, show that the veteran was seen in August 1995 for recurrence of ear infection; stated that he had experienced recurring ear infections since active service; and that a VA hearing examination had shown a 30 percent hearing loss in the right ear. Examination revealed a dull inflammation of the right tympanic membrane, and antibiotics were prescribed. In October 1996, the veteran complained of some pressure in his ears, and examination revealed that his ear canals were clean, and the tympanic membranes were scarred but otherwise okay. In May 1997, the veteran was seen for complaints of left ear pressure, with discomfort and loss of hearing, and examination revealed that his auditory canals were clean, and the right tympanic membrane was very scarred but clean; and that cerumen was rinsed from the left external canal, and the left tympanic membrane was injected and had much scar tissue. The impression was left otitis externa and probably left otitis media. In March 1998, the veteran complained of right ear discomfort. Examination revealed that the external auditory canals were clean and the tympanic membranes were normal. In July 1999, the veteran was seen for complaints of left ear pain and fullness of one weeks' duration. Examination revealed some scarring of the right tympanic membrane, and the left tympanic membrane was scarred and erythematous, with fluid behind it. The impression was left otitis media. The Board notes that the private treatment records from Circleville Medical Associates, dated from September 1976 to November 1999, includes no competent medical evidence which links or relates the findings of tympanic scarring or otitis media to the veteran's period of active service, and that the veteran's assertion that he had experienced recurring ear infections since active service is not new, but is duplicative and cumulative of other evidence showing evidence of an old left otitis media at service entry; a postservice left otitis media in May 1980, treated at the Berger Hospital emergency room; and evidence of bilateral tympanosclerosis thought secondary to previous infections. In a rating decision of July 2001, the RO determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for bilateral defective hearing. The veteran filed a Notice of Disagreement with the rating decision of July 2001 declining to reopen his claim for service connection for bilateral defective hearing. Following the issuance of a Statement of the case, he filed a timely Substantive Appeal (VA Form 9) to perfect his appeal of the July 2001 decision new and material evidence had not been submitted to reopen the veteran's claim for service connection for bilateral defective hearing. The Board finds that the additional evidence submitted in support of the veteran's efforts to reopen his claim for service connection for bilateral defective hearing is new only in the sense that such private treatment records had not previously been submitted. However, since none of that evidence links or relates the veteran's bilateral defective hearing to his period of active service, it is not material to the issue of incurrence of bilateral defective hearing. Further, that additional evidence shows that after service separation, the veteran had multiple recurrences of the otitis media which was evidenced on his service entrance examination, and that was again shown in August 1995, when he was treated for recurrence of ear infection; in May 1997, when the impression was left otitis externa and probably left otitis media; and in July 1999, when examination revealed that the left tympanic membrane was scarred and erythematous, with fluid behind it, and the impression was left otitis media. Based upon the foregoing, and for the reasons and bases stated, the Board finds that clear and unmistakable evidence, consisting of the veteran's service entrance examination, shows that the veteran had evidence of an old otitis media and slightly below normal hearing acuity warranting an H-2 profile at service entry; that he was not treated for otitis media in either ear during active service; and that his service separation examination failed to disclose any increase in his hearing acuity during active service and no progression of the slightly below normal hearing acuity shown at service entry. Subsequent to service separation, the veteran has been diagnosed and treated for otitis media in his ears, as evidence in the private treatment records he has submitted. For the reasons stated, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for bilateral defective hearing, and the rating decisions of May 1980 and February 1996 remain final. The Board wishes to emphasize that the veteran's claim that his ears were normal at service entry is simply inaccurate. ORDER New and material evidence not having been submitted, the claim for service connection for bilateral defective hearing is not reopened. G. H. Shufelt Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.