Citation Nr: 0213439	
Decision Date: 10/02/02    Archive Date: 10/10/02

DOCKET NO.  01-01 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Whether new and material evidence has been submitted to 
reopen the veteran's claim of entitlement to service 
connection for Meniere's syndrome.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel



INTRODUCTION

The veteran served on active duty from September 1950 to 
September 1954.

In an April 1993 rating decision, the Department of Veterans 
Affairs (VA) Regional Office (RO) denied entitlement to 
service connection for Meniere's syndrome.  The veteran was 
notified of that decision in April 1993.  In a statement 
received at the RO in June 1994, he indicated that it was his 
intent to appeal the April 1993 decision.  However, because 
that notice was not submitted to the RO within one year of 
notice of the April 1993 decision, it cannot constitute a 
notice of disagreement with that decision.  38 U.S.C.A. 
§ 7105(b); 38 C.F.R. § 20.302.  The April 1993 RO decision 
is, therefore, final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. 
§ 20.1103.

The veteran again claimed entitlement to service connection 
for Meniere's syndrome in August 2000.  In an October 2000 
decision the RO determined that new and material evidence had 
not been submitted to reopen the previously denied claim.  
The veteran perfected an appeal of the October 2000 decision, 
and it is that decision that is currently before the Board of 
Veterans' Appeals (the Board).


FINDINGS OF FACT

1.  The RO denied entitlement to service connection for 
Meniere's syndrome in April 1993; that decision became final 
in the absence of a timely filed appeal.

2.  The evidence submitted subsequent to the April 1993 
decision does not bear directly and substantially on the 
issue on appeal, that being whether Meniere's syndrome is 
etiologically related to service.


CONCLUSION OF LAW

The April 1993 rating decision in which the RO denied 
entitlement to service connection for Meniere's syndrome is 
final.  New and material evidence has not been submitted, and 
the claim is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 
1991); 38 C.F.R. §§ 3.156, 20.1103 (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran ultimately seeks service connection for Meniere's 
syndrome.  "Meniere's disease is 'a disorder of the 
membranous labyrinth of the inner ear that is marked by 
recurrent attacks of dizziness, tinnitus, and deafness.'  
Webster's Medical Desk Dictionary 422 (1986)."  Cromley v. 
Brown, 7 Vet. App. 376, 377  (1995).  In essence, he contends 
that his Meniere's syndrome was caused by a head injury that 
he incurred in service.

As noted in the Introduction, the veteran's claim of 
entitlement to service connection for Meniere's syndrome was 
denied by the RO in April 1993.  As explained in detail 
below, the Board must initially determine whether 
additionally submitted evidence warrants reopening the claim.  
The preliminary question of whether a previously denied claim 
should be reopened is a jurisdictional matter that must be 
addressed before the Board may consider the underlying claim 
on its merits.  See Barnett v. Brown, 83 F.3d 1380, 1383 
(Fed. Cir. 1996).  

In the interest of clarity, the  Board will initially discuss 
certain preliminary matters.  The Board will then address the 
pertinent law and regulations and their application to the 
facts and evidence.


The VCAA

On November 9, 2000 the President signed into law the 
Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126].  The VCAA 
revises VA's obligations in two significant ways.  First, VA 
has a duty to notify a claimant and his or her representative 
of any information and evidence necessary to substantiate and 
complete a claim for VA benefits.  See 38 U.S.C.A. §§ 5102 
and 5103 (West Supp. 2002).  Second, VA has a duty to assist 
the claimant in obtaining evidence necessary to substantiate 
his or her claim.  See 38 U.S.C.A. § 5103A (West Supp. 2002).  

VA issued regulations to implement the VCAA in August 2001.  
66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)].  The 
amendments became effective November 9, 2000, except for the 
amendment to 38 C.F.R. § 3.156(a), which became effective 
August 29, 2001.  Except for the amendment to 38 C.F.R. § 
3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 
C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of 
this rule merely implement the VCAA and do not provide any 
rights other than those provided in the VCAA."  66 Fed. Reg. 
45,629.  

The Board must make a determination as to the applicability 
of the various provisions of the VCAA to a particular claim.  
Holliday v. Principi, 14 Vet. App. 280 (2001).  

The VCAA is generally 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.  Pertinent to the issue currently on appeal, however, 
the VCAA appears to have left intact the requirement that a 
veteran must first present new and material evidence in order 
to reopen a previously and finally denied claim under 
38 U.S.C.A. § 5108 before the Board may determine whether the 
duty to assist is fulfilled and proceeding to evaluate the 
merits of that claim.  It is specifically noted that nothing 
in the VCAA shall be construed to require the Secretary to 
reopen a claim that has been disallowed except when new and 
material evidence is presented or secured, as described in 
38 U.S.C.A. § 5108.   See 38 U.S.C. § 5103A(f).  

Once a claim is reopened, the VCAA provides that VA shall 
make reasonable efforts to assist a claimant in obtaining 
evidence necessary to substantiate the claimant's claim for a 
benefit under a law administered by VA, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  38 U.S.C.A. § 5103A.

Final regulations to effectuate the VCAA were published on 
August 29, 2001 with the same effective date of the VCAA, 
November 9, 2000.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) 
[to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 
3.159 and 3.326(a)].  However, the regulations governing 
reopening of previously and finally denied claims were 
revised effective the date of publication on August 29, 2001.  
These regulations redefine new and material evidence and the 
duty to assist in applications to reopen previously and 
finally denied claims.  As the instant claim to reopen was 
filed prior to August 29, 2001, the revised regulations 
specific to such claims are inapplicable to the instant 
appeal.  

Thus, it appears that the VCAA does not fully apply to 
claims, such as this, which involve finality of prior VA 
decisions and the matter of submission of new and material 
evidence.  Furthermore, it is clear that certain of VA's 
implementing regulations do not apply to this case in its 
present posture.

The Board observes, however, that the United States Court of 
Appeals for veterans Claims (the Court) has recently held 
that 38 C.F.R. § 3.159(b), pertaining to VA's duty to notify 
claimants, includes claims to reopen.  See Quartuccio v. 
Principi, 
16 Vet. App. 183, 187 (2002).   The notice provisions found 
in the VCAA are therefore applicable to cases such as this in 
which the issue revolves around finality and new and material 
evidence.   

On receipt of a claim for benefits, including a request to 
reopen a previously denied claim, VA will notify the veteran 
of the evidence that is necessary to substantiate the claim.  
VA will also inform the veteran which information and 
evidence, if any, that he is to provide and which information 
and evidence, if any, VA will attempt to obtain on his 
behalf.  VA will also request that the veteran provide any 
evidence in his possession that pertains to the claim.  Duty 
to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be 
codified at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 
Vet. App. 183, 187 (2002).

The RO informed the veteran of the evidence needed to 
substantiate his claim in February 1993 by informing him of 
the specific evidence required to show that the claimed 
disability was incurred in service and had existed since 
service, and that he is responsible for providing that 
evidence.  The RO again informed him of the evidence needed 
to substantiate his claim in February 1995 by notifying him 
that in order to reopen the previously denied claim he had to 
submit evidence that had not been previously considered that 
was relevant to his claimed disability having been incurred 
in service.  

The RO provided the veteran a statement of the case in 
November 2000 and a supplemental statement of the case in 
April 2001.  In those documents the RO informed the veteran 
of the regulatory requirements for establishing service 
connection and the regulatory definition of new and material 
evidence, and provided the rationale for determining that the 
evidence he had then submitted did not constitute new and 
material evidence.  In the April 2001 supplemental statement 
of the case the RO informed the veteran of the provisions of 
the VCAA in terms of VA's duty to notify him of the evidence 
needed to substantiate his claim and to assist him in 
developing the relevant evidence.

With respect to VA's duty to assist, as indicated above the 
VCAA provides that VA's duty to assist does not commence 
until new and material evidence has been submitted.  The 
Board additionally observes that the veteran has identified 
no existing unobtained evidence as possibly being new and 
material.  The Board is not aware of any specific evidence 
pertaining to the pending claim which exists and which has 
not been obtained, and the veteran and his representative 
have pointed to none.  The RO notified the veteran that his 
case was being sent to the Board, and informed him that any 
additional evidence that he had should be submitted to the 
Board.  No additional evidence was submitted.  

The Board observes at this juncture that, the RO requested 
the veteran's service medical records from the National 
Personnel Records Center, but was informed that the records 
were not available and are presumed to have been destroyed in 
the fire at that facility in 1973. The Court has held that in 
cases where records once in the hands of the government are 
lost, the Board has a heightened obligation to explain its 
findings and conclusions.  See O'Hare v. Derwinski, 1 Vet. 
App. 365, 367 (1991).  The case law does not, however, lower 
the legal standard for proving a claim for service connection 
but rather increases the Board's obligation to evaluate and 
discuss in its decision all of the evidence that may be 
favorable to the veteran.  See Russo v. Brown, 9 Vet. App. 46 
(1996).

In short, the Board believes that the provisions of the VCAA, 
insofar as they apply to the current posture of this case, 
have been fulfilled.    
Relevant law and regulations

Service connection

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. § 1110.  

For the showing of chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time.  If chronicity in service 
is not established, a showing of continuity of symptoms after 
discharge is required to support the claim.  Service 
connection may be granted for any disease diagnosed after 
discharge, when all of the evidence establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303.

In order to establish service connection for the claimed 
disorder, there must be 
(1) medical evidence of a current disability; (2) medical, or 
in certain circumstances, lay evidence of in-service 
incurrence or aggravation of a disease or injury; and (3) 
medical evidence of a nexus between the claimed in-service 
disease or injury and the current disability.  Hickson v. 
West, 12 Vet. App. 247, 253 (1999).  The determination as to 
whether these requirements are met is based on an analysis of 
all the evidence of record and the evaluation of its 
credibility and probative value.  Baldwin v. West, 13 Vet. 
App. 1, 8 (1999).  

Finality/new and material evidence

A decision of the RO becomes final and is not subject to 
revision on the same factual basis unless a notice of 
disagreement is filed within one year of the notice of 
decision.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (1998).  

If a claim of entitlement to service connection has been 
previously denied and that decision became final, the claim 
can be reopened and reconsidered only if new and material 
evidence is presented with respect to that claim.  
38 U.S.C.A. § 5108; Knightly v. Brown, 6 Vet. App. 200 
(1994).  The 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 all the 
evidence of record.  Evans v. Brown, 9 Vet. App. 273 (1996).  
In determining if new and material evidence has been 
submitted, the evidence is generally presumed to be credible.  
See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per 
curium).

Evidence is considered to be "new" if it was not previously 
submitted to agency decision makers and it is not cumulative 
or redundant.  The evidence is "material" if it bears 
directly and substantially upon the specific matter under 
consideration and, by itself or in connection with evidence 
previously considered, it is so significant that it must be 
considered in order to fairly decide the merits of the claim.  
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. 
§ 3.156.  New evidence may be found to be material if it 
provides "a more complete picture of the circumstances 
surrounding the origin of the veteran's injury or disability, 
even where it will not eventually convince the Board to alter 
its rating decision."  Elkins v. West, 12 Vet. App. 209, 214 
(1999), rev'd on other grounds, 229 F.3d 1369 (Fed. Cir. 
2000).  

The Board notes that the definition of material evidence was 
revised in August 2001 to require that the newly submitted 
evidence relate to an unestablished fact necessary to 
substantiate the claim and present the reasonable possibility 
of substantiating the claim.  Duty to Assist, 66 Fed. Reg. 
45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. 
§ 3.156).  The change in the law, however, pertains only to 
claims filed on or after August 29, 2001.  Duty to Assist, 66 
Fed. Reg. 45,620.  Because the veteran's claim was initiated 
prior to August 2001, his claim will be adjudicated by 
applying the law previously in effect.

An adjudicator must follow a two-step process in evaluating 
previously denied claims.  First, the adjudicator must 
determine whether the evidence added to the record since the 
last final decision is new and material.  If new and material 
evidence is presented or secured with respect to a claim that 
has been finally denied, the claim will be reopened and 
decided upon the merits.  Once it has been determined that a 
claimant has produced new and material evidence, the 
adjudicator must evaluate the merits of the claim in light of 
all the evidence, both new and old, after ensuring that VA's 
statutory duty to assist the claimant in the development of 
the evidence has been fulfilled.  38 U.S.C.A. § 5108; Elkins, 
12 Vet. App. at 214.

Analysis

The veteran initially claimed entitlement to VA benefits in 
February 1993.  The evidence submitted in conjunction with 
that claim included a February 1993 statement from F.S., who 
reported having known the veteran for over 40 years.  Mr. S. 
stated that the veteran had had trouble with his ears ever 
since he had known him, and that the veteran had attributed 
the problems to an injury he incurred during basic training.  
The veteran also submitted a statement from his aunt, in 
which she stated that the veteran had told her that he had 
incurred an ear injury while in basic training in service, 
and that he had attacks of dizziness, blackouts, and sweating 
in service.  She also stated that he continued to have 
"attacks" after being separated from service, and that he had 
had surgery twice due to these attacks.

The medical evidence includes a January 1983 medical report 
from S.M.M., M.D., which shows that the veteran's relevant 
medical history began in December 1981, at which time he 
experienced his first episode of vertigo.  The vertigo 
recurred in March 1982, and subsequent testing resulted in 
the diagnosis of endolymphatic hydrops.  

M.D.G., M.D., stated in a January 1985 report that the 
veteran had a two-year history of fullness in the right ear, 
tinnitus, fluctuating hearing loss and severe vertigo that 
resulted in a diagnosis of Meniere's syndrome.  In an April 
1985 report J.K., M.D., also found that the veteran had a 
two-year history of progressive symptoms.  The only past 
medical history the physician found to be significant did not 
include any reference to an injury to the head.  The veteran 
then underwent the surgical decompression of the right 
endolymphatic sac due to Meniere's disease.

The veteran presented a March 1993 report from S.A.T., M.D., 
in which the physician indicated that he was responding to 
the veteran's request for evidence regarding his assertion 
that his Meniere's disease was caused by military service.  
The veteran then reported that his symptoms began 
approximately two months following a blow to the head while 
in basic training.  The physician stated that he had informed 
the veteran that Meniere's disease could result from such 
trauma, but in most cases occurred spontaneously.

Based on this evidence shown above, in the April 1993 rating 
decision the RO denied entitlement to service connection for 
Meniere's syndrome on the basis that the disorder had not 
been incurred in service.  The RO found that, contrary to the 
veteran's assertions, there was no evidence of an in-service 
injury and that the Meniere's syndrome had had its onset in 
1981.

The Board observes at this juncture that in order to be new 
and material, subsequently submitted evidence would have to 
establish a connection between the veteran's diagnosed 
Meniere's syndrome and his military service. 

Evidence received following the April 1993 decision includes 
an April 1993 report from C.N.B., M.D., in which Dr. C.N.B. 
stated that the veteran had been his patient since January 
1970.  During that time Dr. B. had treated the veteran for a 
number of disabilities, including Meniere's disease, which he 
had developed in 1981.  This evidence is cumulative of the 
evidence of record prior to April 1993, in that the medical 
evidence then showed that the onset of Meniere's disease had 
occurred in 1981.

The RO provided the veteran a VA psychiatric examination in 
June 1993 in conjunction with a claim for non-service 
connected pension benefits.  During that examination the 
veteran reported having had "dizzy spells" since 1950.  This 
evidence is also cumulative of the evidence of record in 
April 1993, because the lay statements then showed that he 
had reported having had dizzy spells during and since 
service.

The veteran submitted an August 2000 statement from F.B.Y., 
with whom he served in the Air Force.  Mr. Y. stated that he 
had served with the veteran in 1953, and that he remembered 
the veteran having appeared to suffer from headaches at that 
time.  This is not material to the matter of whether the 
veteran having suffered from Meniere's syndrome while in 
service.  

The veteran also submitted duplicate copies of the lay 
statement from F.S. and the March 1993 report from Dr. T., 
which are redundant of the evidence of record in April 1993.

In his August 2000 request to reopen the previously denied 
claim the veteran reported having been struck behind the 
right ear with a rifle butt while running an obstacle course 
in service.  He also reported having been treated for 
headaches while in service, and that he once fell while 
bending over to pick up a piece of paper.  The reference to 
having been injured in service is cumulative of the evidence 
of record in April 1993, because the statement from his aunt 
indicates that he had reported having incurred a head injury 
while in service.  The reference to treatment for headaches 
is new, in that he had not made such allegations when the 
claim was previously adjudicated.  The evidence is not 
material, however, because there is no indication that the 
headaches are in any way related to the onset of Meniere's 
syndrome in 1981.

The veteran also submitted an October 2000 report from Dr. B. 
in which the physician referenced the August 2000 statement 
from Mr. Y.  Dr. B described this statement as indicating 
that the veteran had sustained a head injury while in basic 
training, resulting in severe headaches, vertigo, and 
subsequent deafness.  In a supplemental statement dated in 
December 2000 Dr. B. stated that the veteran had been his 
patient for over 30 years, and that during that time the 
veteran developed Meniere's syndrome.  Dr. B. again 
referenced the statement from Mr. Y. [although the name "Y" 
was incorrectly stated by Dr. B.] and described that 
statement as showing that the veteran had incurred an injury 
to the ears while in service.  Dr. B. then provided an 
opinion that the veteran's Meniere's syndrome was due to the 
injury that the veteran had incurred in service.

The Board notes that in both October 2000 and December 2000 
Dr. B. characterized the statement from Mr. Y. as describing 
a head injury with resulting severe headaches, vertigo and 
subsequent deafness.  Mr. Y. in fact indicated no such thing; 
he merely stated that he recalled that the veteran has 
headaches in the service.  Mr. Y. did not refer to an injury 
to the veteran's head.  [The Board additionally observes that 
Dr. B., in his December 2000 opinion, also erred with respect 
to Mr. Y.'s name.]  

In fact, Mr. Y. made no reference to the veteran having 
incurred a head injury in service, or having suffered from 
vertigo or deafness in service.  Dr. B.'s December 2000 
opinion is based on an obvious misreading of the very essence 
of Mr. Y.'s statement.  Dr. B.'s medical opinion is not, 
therefore, probative of a relationship between Meniere's 
syndrome and service, does not constitute credible evidence 
and is not new and material.       

It appears that Dr. B. may have confused statements made by 
the veteran to him with the statement made by Mr. Y.  
However, a medical opinion which is based solely on a 
veteran's reported history is not considered to be new and 
material evidence.  The Court has held on a number of 
occasions that a medical opinion premised upon an 
unsubstantiated account is of no probative value.  See Reonal 
v. Brown, 5 Vet. App. 458, 460-1 (1993); Moreau v. Brown, 9 
Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 
229, 233 (1993).  

Previous statements made by the veteran and others to the 
effect that he sustained a head injury in service were 
considered and rejected by the RO in April 1993.  Indeed, the 
veteran told Dr. S.T. in March 1993 that he injured his head 
in service.  Lay evidence of a head injury in service does 
not attain any additional probative value because it now 
forms the basis of a medical opinion.  See LeShore v. Brown, 
8 Vet. App. 406, 409 (1995).  In essence, the evidence 
provided by Dr. B. amounts to a recitation of evidence 
previously presented by and on behalf of the veteran and is 
thus cumulative of the evidence previously considered.
  
In summary, most of the evidence submitted following the 
April 1993 denial of service connection for Meniere's 
syndrome is cumulative and redundant of the evidence 
considered by decision makers at that time.  The evidence 
that is not cumulative, including the August 2000 statement 
from F.B.Y. and the medical opinion from Dr. B., is not 
material because it is not probative of a relationship 
between an in-service disease or injury and Meniere's 
syndrome.  The Board finds, therefore, that evidence that is 
both new and material has not been submitted, and the claim 
of entitlement to service connection for Meniere's syndrome 
is not reopened.

The Board has determined that new and material evidence has 
not been submitted to reopen the claim of entitlement to 
service connection for Meniere's syndrome.  As discussed 
above, because the veteran's claim was submitted prior to 
August 29, 2001, in the absence of a finding that new and 
material evidence has been submitted VA does not have a duty 
to assist the veteran in obtaining evidence in support of his 
claim.  


ORDER

New and material evidence not having been submitted, the 
request to reopen the claim of entitlement to service 
connection for Meniere's syndrome is denied.



		
	Barry F. Bohan
	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.