Citation Nr: 1237335 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 11-33 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for otitis externa. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, although the appeal is under the jurisdiction of the RO in Reno, Nevada. The Board has reviewed the Veteran's physical claims file and his file on Virtual VA to ensure a total review of the available evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An unappealed January 2002 rating decision denied a claim of entitlement to service connection for bilateral hearing loss on the basis that there was no evidence of record showing the condition was related to service. 2. Additional evidence submitted since January 2002 on the issue of service connection for bilateral hearing loss does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding that the Veteran's otitis externa is causally or etiologically related to military service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 2. Otitis externa was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in June 2010 and November 2010, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's petition to reopen his claim of entitlement to service connection for hearing loss and his claim for service connection of otitis externa, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The letters specifically informed the Veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denial. He was informed why his claim was previously denied, and the new and material evidence must relate to those facts. In addition, the letters from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. The unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. On his appeal, the Veteran stated that he had recently visited a physician, which showed his eardrums are perforated. He did not claim that this physician rendered any opinions as to the etiology of his hearing loss, or that the physician found he currently has otitis externa, so there is no point in delaying resolution of this appeal to get these records, since they would not be relevant to the questions at issue in this case. The Veteran has been examined by VA in connection with his claims; the Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to evaluate the Veteran's claims, including his history and physical evaluations to determine the nature and etiology of any hearing loss and otitis media. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. New and Material Evidence Legal Criteria In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a Veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." As relevant to this appeal, the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented. The Veteran filed his application to reopen his previously denied claim for bilateral hearing loss, including as secondary to otitis externa in January 2010. Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The Board initially notes that the Veteran's current claim involving bilateral hearing loss, including as secondary to otitis externa, is grounded upon the same factual bases as his prior claim, which was previously denied by the RO in a January 2002 decision. The Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued, but the Veteran did not perfect his appeal, and as such that decision is final. Also, no evidence was received within the year following the decision such that 38 C.F.R. § 3.156(b) applies. Generally, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim rather than an original claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). In this case, the RO found that there was new and material evidence sufficient to reopen the Veteran's claim. However, in Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. Evidence before the RO in January 2002 included the Veteran's service treatment records, VA treatment records, and private audiological records. Service treatment records showed treatment for otitis externa from October 1952 to May 1953, but normal hearing (15/15 whisper voice) at discharge. In pertinent part, VA medical records showed that the Veteran had bilateral hearing loss, such that he required a hearing aid; these records also show treatment for otitis externa and otitis media between 1994 and 2000. None of these records provided an opinion as to the etiology of the Veteran's hearing loss. See records from the Reno VA Medical Center. In addition, private treatment records from Hearing Health Services and Carson City Hearing Center indicate that the Veteran underwent audiological testing, which showed worsening hearing since 1998; the Veteran was diagnosed with otitis externa due to hearing aid use and severe to profound bilateral hearing loss. An April 2001 evaluation by Carson City Hearing Center indicated that the Veteran exhibited bilateral hearing loss per VA standards. Lastly, evidence before the RO in January 2002 also included several lay statements in support of the Veteran's claim. The Veteran reported that his bilateral hearing loss was due to noise exposure and/or treatment for otitis externa during his service. See April 2001 statement. Prior to a January 2003 SOC, the RO received a November 2002 statement from M.S.W., M.C.D., which stated that the Veteran had moderately severe to profound hearing loss bilaterally. The Veteran reported experiencing noise exposure in service, and that the Veteran attributed his hearing loss to his in-service noise exposure. The evidence added to the record since 2002 includes additional VA treatment records, VA examination reports, and statements from the Veteran. The VA treatment records show complaints of, and treatment for, decreased hearing. In his statements, the Veteran has asserted that he was treated for his ears in service and that his bilateral hearing loss is attributed to noise exposure and/or otitis externa that he experienced during his service. See e.g., April 2011 NOD. VA examination reports from August 2010 and September 2010 confirm that the Veteran has bilateral hearing loss per VA standards. However, the VA examiner found that the Veteran's bilateral hearing loss is not caused by or the result of his external otitis media in service or excessive noise exposure. The VA examiner concluded that the Veteran has hearing loss due to a nerve condition, and that his hearing loss is multi-factorial given the Veteran's age and genetic predisposition to hearing loss. The medical evidence added to the record since January 2002 is new because it had not previously been submitted; however, it is not considered material because the evidence could not reasonably substantiate the claim were it to be reopened. More specifically, the new medical evidence remains devoid of any indication that the Veteran's bilateral hearing loss is etiologically related to his service, including his otitis externa. Additionally, the Veteran's own statements concerning his claim are cumulative of those that were before the RO in January 2002 and are, therefore, not new. As he did prior to January 2002, the Veteran continues to assert that he had in-service exposure to acoustic trauma, and that his bilateral hearing loss is related to noise exposure and/or his in-service treatment for otitis externa. This same argument was advanced prior to the RO's January 2002 adjudication of the Veteran's claim. The Board has considered the Veteran's statements asserting a nexus between his in-service treatment for his ears and his bilateral hearing loss, namely his assertion that his in-service treatment for his ears demonstrates that his hearing loss was incurred on active duty. While the Veteran is competent to report a decrease of hearing acuity while in service, he is not competent to report that his bilateral hearing loss is related to his service because he does not have the education, training, or experience to offer a medical opinion. See 38 C.F.R. § 3.159(a)(1); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Moreover, bilateral hearing loss is an internal process that cannot be directly observed and is determined through the use of audiometric testing and evaluation of the ears, which is distinguishable from those types of disabilities that are capable of direct observation, to include a separated shoulder, varicose veins, and flat feet. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). In conclusion, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim for bilateral hearing loss. In short, the Veteran's treatment records and statements do not demonstrate a causal relationship between his service in the military and his bilateral hearing loss, nor do these records otherwise verify the circumstances of his service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claims are not reopened. Service Connection Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Analysis The Board acknowledges that the Veteran was treated for chronic external otitis on several occasions in service. In particular, the Veteran was treated in October 1952, December 1952, April 1953, and May 1953; antibiotics were prescribed in May 1953 and surgical drainage was considered. The Veteran's March 1955 separation examination report indicated a history of chronic external otitis for 4 months. VA treatment records dated April 2009 through June 2010 and September 2010 through April 2011 do not show any treatment for otitis externa; the Veteran did have a wax trap removed from his left ear in October 2010, which was attributed to the Veteran's hearing aid. At the Veteran's August 2010 and September 2010 VA examinations, the Veteran reported a history of treatment for otitis externa in 1952 and again approximately 10 years after his military service; the Veteran complained of weekly itching and burning of his external ear canals. He also reported a history of pruritis of the ears. Upon physical examination, however, there was no evidence of active ear disease. His tympanic membranes were intact, his mastoids were normal, and his inner ear canals were dry and scaly but otherwise normal; there was no deformity of auricle or aural polyps. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for otitis externa. Significantly, the Board notes that the Veteran does not have an active ear disease; although the Veteran was treated for chronic otitis externa in service, there is no evidence of record demonstrating that the Veteran currently has otitis externa, or any residuals thereof. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability."). The current VA outpatient records show no such diagnosis, and none is shown on the list of his medical history. Although he claimed at the VA examination in 2010 that he had an infection at that time, it was not shown upon physical examination. The Veteran is competent to describe the nature of his symptoms, but not to provide a diagnosis or link his symptoms to his service. Although the Veteran made related complaints at separation, there was no evidence of related, chronic disabilities during or after service, including within a year of discharge from service. While he can report symptoms such as itching, the Veteran has not shown that he has the expertise required to diagnose otitis externa. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record showing that the Veteran does not currently have otitis externa attributable to active service. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide a diagnosis or an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). . In rendering a decision on appeal, however, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The August 2010 and September 2010 VA examination reports must be given great probative weight because the opinions were based on a review of the entire record and full examination, as well as accompanied by an explanation of the rationale. The VA consultation and examination reports concluded, with a clear basis and rationale, that there was no evidence that the Veteran has otitis externa or another active ear disease. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). Thus, there currently is no persuasive medical nexus evidence of record indicating the Veteran currently has otitis externa as a result of his service in the military. As there is a preponderance of evidence against his claim of entitlement to service connection for otitis externa, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). [Continued on next page] ORDER New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. The request to reopen this claim is denied. Entitlement to service connection for otitis externa is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs