Citation Nr: 1320552 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-15 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss, to include whether service connection can be granted. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for chronic otitis media of the left ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to January 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In his April 2010 substantive appeal, the Veteran requested a hearing to be held before the RO. The hearing was scheduled for July 2010. Notice of the hearing was sent to the address of record and was not returned as undeliverable. The regularity of the mail is presumed. The Veteran failed to appear; consequently, his hearing request is deemed withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An August 1954 rating decision denied claims of service connection for chronic otitis media of the left ear and bilateral defective hearing (now claimed as bilateral hearing loss); the Veteran did not appeal the decision nor was new and material evidence pertinent to the issues received within one year of notice of the decision. 2. Evidence submitted since the August 1954 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim and raised a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The preponderance of the evidence weighs against a finding that the Veteran currently has bilateral hearing loss due to events in active service. 4. While certain items of evidence received since the August 1954 rating decision are considered new, the evidence is cumulative and redundant and, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of service connection for chronic otitis media of the left ear. 5. The preponderance of the evidence weighs against a finding that the Veteran currently has tinnitus due to events in active service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the Veteran's claim for service connection for chronic otitis media of the left ear. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Where a Veteran seeks to reopen a previously denied claim, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in July 2009. The Veteran was provided with notice of what type of information and evidence was needed to substantiate the new and material claims for service connection for bilateral hearing loss and chronic otitis media of the left ear, to include the reasons for the prior denials. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. The Veteran indicated in August 2009 that he had no additional evidence or information to submit in support of his appeal. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran a VA examination, and afforded the Veteran the opportunity to give testimony before the RO (as noted in the Introduction, he failed to appear for the scheduled hearing). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Claims of Service Connection for Bilateral Hearing Loss and Chronic Otitis Media of the Left Ear The Veteran seeks to reopen his claims of service connection for chronic otitis media of the left ear and bilateral hearing loss. In an August 1954 rating decision, the RO denied claims for chronic otitis media of the left ear and bilateral hearing loss on the basis that the conditions were not incurred or aggravated during service. The Veteran did not appeal this decision. No new and material evidence was received in the year following the issuance of the decision as it pertains to the issues on appeal. See generally 38 C.F.R. § 3.156. The August 1954 rating decision therefore became the last final decision on any basis. 38 U.S.C.A. § 7105(c). The Board must first address the issue of whether new and material evidence has been received to reopen the claims because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Of record at the time of the August 1954 rating decision were the Veteran's service treatment records, which show that upon the October 1951 pre-induction report of medical history, the Veteran indicated that he had ear, nose and throat trouble, as well as running ears. He indicated that he fractured his skull and ruptured his left eardrum at age 11 and when he went under water, his ears filled causing severe ache. The enlistment examination revealed that the Veteran's hearing was 15/15 on the right and 12/15 on the left on the whispered voice test. His ears were evaluated as normal (condition of the ear drum, discharge, etc.) bilaterally. The provider noted the Veteran had chronic otitis media suppurative of the left ear, organism unknown. The Veteran was found to be physically qualified for induction. In January 1952, the Veteran informed treatment providers that he fractured his skull and perforated his left eardrum in a motor vehicle accident at age 11. He indicated he had otorrhea, which changed to suppurative for approximately three months and then it spontaneously resolved. The Veteran further indicated that he had no recurrence of drainage until he swam and underwater he felt dizzy and like he was falling to his left. The last episode of draining began in December 1951 after he was swimming and continued to the present. The provider found a large perforation of the left eardrum and discharge. Chronic otitis media suppurative of the left ear was determined to exist prior to service and not to have been aggravated by service. He was deemed physically unfit for continued service and discharge was recommended. The Veteran was not afforded a discharge examination. He was discharged from service in January 1952. Lay statements dated in 1954 from people who knew the Veteran since he was five years old indicated the Veteran was struck by a car at age 11 and perforated his left ear drum. Both individuals noted the Veteran had hearing difficulty after the accident and was restricted from swimming. Both individuals further stated that the Veteran's hearing was noticeably worse after his discharge in June 1952. They claim it was the result of swimming in service. In February 1954, Dr. FHS indicated he treated the Veteran for complaints of left ear hearing loss and recurrent otitis media with draining. Dr. FHS stated the Veteran had scarring of the left eardrum, 25 percent hearing loss in the left ear, and 11 percent hearing loss in the right ear. A February 1954 statement from Dr. TTS simply noted the Veteran had a motor vehicle accident in 1942. Dr. TTS indicated to the best of his recollection the Veteran had no head injury. A summary of the medical record of the Veteran's hospitalization in August 1942 at Elizabeth Hospital noted the Veteran had a possible skull fracture and bleeding from his left ear. The Veteran was afforded a VA examination in June 1954. He complained of drainage from the left ear since the motor vehicle accident. He also complained of difficulty hearing in the left ear and drainage if he got water in his ear. He informed the examiner that he was treated in service in 1951 for discharge in his ear after swimming. The Veteran was able to hear ordinary conversation in the left ear at 25 feet in the right ear and 18 feet in the left ear. Air conduction was slightly reduced in the left ear with C-2 tuning fork. The left eardrum was thickened and perforated, the right appeared normal. The Veteran's otitis media of the left ear was quiescent. Audiometric examination contained puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 - - LEFT 25 (20 1 hr. later) 20 - - - Evidence submitted subsequent to the August 1954 rating decision includes statements of the Veteran that he aggravated his hearing and otitis media when he was forced to swim during basic training by his drill instructor. He claims that he was treated for a ruptured eardrum and infection after the incident in 1951. In his notice of disagreement, the Veteran maintains that his water training injury was not considered. VA outpatient treatment records dated in 2009 and 2010 were negative for complaints or treatment for bilateral hearing loss or otitis media of the left ear. In fact in June 2009, the Veteran denied any serious problems with his ears and they were considered unremarkable. In July 2009, the Veteran's ears were found to be atraumatic. In his May 2009 claim and an April 2011 statement, the Veteran reported that he "shot EXPERT with M! [sic] rifle." The Veteran was afforded a VA examination in December 2012. He was diagnosed with bilateral sensorineural hearing loss. The examiner indicated he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The examiner reasoned that the Veteran was exposed to weapons fire with no hearing protection during basic training and denied any significant non-military noise exposure. The examiner indicated that although the right ear exhibited a high frequency notch that would appear to be consistent with loud noise exposure, this opinion was deferred to ear, nose, and throat (ENT) evaluation due to the history of skull fracture, which could potentially cause sensorineural hearing loss. The examiner also noted that an ENT evaluation had been requested to evaluate for an aggravation of the left eardrum perforation, which was also sustained in the accident at age 11. The Veteran failed to appear for the ENT evaluation. As noted previously, in the August 1954 rating decision, the RO denied chronic otitis media of the left ear and bilateral hearing loss on the basis that the conditions were not incurred in or aggravated by service. The Board is aware that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Bilateral Hearing Loss Evidence submitted since the last final denial includes the Veteran's written statements that he "shot EXPERT with M! [sic] rifle, his report of the same history to the VA examiner and that examiner's comment that the Veteran was exposed to acoustic trauma in service. In the VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative also alleged acoustic trauma from weaponry. At the time of the prior denial, there was no evidence of noise exposure in service and acoustic trauma was not considered a possible cause of the hearing loss. With consideration of Shade, the Board finds this evidence new and material as it raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of service connection for bilateral hearing loss is warranted. Chronic Otitis Media of the Left Ear The evidence submitted since the last final denial does nothing but reiterate the Veteran's prior contentions-that otitis media was the result of/aggravated by swimming during training in service. Notably, statements to this effect were made to the 1954 VA examiner. In addition, both lay statements submitted in support of his claims in 1954 noted the presence of ruptured left eardrum prior to service, the in-service swimming incident, and the noticeable worsening of his hearing since service. As such, the evidence received since 1954 is duplicative or cumulative of that on file prior to the last final Board decision of that year. The Veteran argues his swimming incident was not considered in 1954, but clearly it was based on the evidence delineated above. To the extent that the evidence of record received since the prior final decision could be deemed new, it does not, when considered by itself or with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for chronic otitis media of the left ear. Specifically, none of the evidence shows that the Veteran has otitis media of the left ear as a result of active service or that the claimed conditions were aggravated therein, beyond the natural progression of the disease. 38 C.F.R. § 3.303; 3.306. With respect to the Veteran's own statements, to the effect that otitis media of the left was incurred in or aggravated during service, such evidence is cumulative and redundant of his earlier statements made prior to the August 1954 rating decision and accordingly is not new. See Reid v. Derwinski, 2 Vet. App. 312 (1992). In claims for service connection, the Board is aware that the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran was provided a VA audiology examination in December 2012. The examination of the otitis media condition was deferred to the VA ENT examiner (the Veteran failed to appear for this examination). To the extent that the speculative opinion as to causation of the bilateral hearing loss would render this portion of the VA examination inadequate, as discussed above, As new and material evidence has not been presented to reopen the claim of service connection for otitis media, left ear, the adequacy of the December 2012 VA examination is moot. See 38 C.F.R. § 3.156(a); Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007) (holding that the issue of adequacy of a VA examination provided in connection with a claim to reopen is moot once the Board finds that new and material evidence has not been presented because VA's duty to assist the Veteran has been extinguished). Thus, on this record, new and material has not been submitted to reopen the previously denied claim of service connection for chronic otitis media of the left ear. See 38 C.F.R. § 3.156(a). Service Connection for Bilateral Hearing Loss and Tinnitus Having reopened the claim of service connection for bilateral hearing loss, the Board will now consider the matter of entitlement to service connection on the merits. The Veteran is not prejudiced by the Board's consideration of the claim on the merits because the RO considered it on the merits in January 2013. Hickson v. Shinseki, 23 Vet. App. 394 (2010); Bernard v. Brown, 4 Vet. App. 384 (1993). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In various statements, the Veteran contends that he has hearing loss and tinnitus as a result of his active military service. Notably, he claims that while on active duty he was in the water during training and his left eardrum was "cracked and blown." See statement dated May 17, 2009, and NOD received in September 2009. He also claims that hearing loss is related to noise exposure in service. See May 2009 and April 2011 submissions. With regard to the claim of service connection for bilateral hearing loss, the Veteran's enlistment examination showed his hearing was 15/15 on the right and 12/15 on the left on the whispered voice test. His ears were evaluated as normal (condition of the ear drum, discharge, etc.) bilaterally. The Veteran was found to be physically qualified for induction. In January 1952, the Veteran informed treatment providers that he fractured his skull and perforated his left eardrum in a motor vehicle accident at age 11. He began to experience draining from his ear in December 1951 after he was swimming and continued to the present. The provider found a large perforation of the left eardrum and discharge. Chronic otitis media suppurative of the left ear was determined to exist prior to service and not to have been aggravated by service. The Veteran was deemed physically unfit for continued service and discharge was recommended. He was not afforded a discharge examination. He was discharged from service in January 1952. Lay statements dated in 1954 from people who knew the Veteran since he was five years old noted the Veteran had hearing difficulty after the accident and his hearing was noticeably worse after his discharge in June 1952. They claim it was the result of swimming in service. In February 1954, Dr. FHS indicated he treated the Veteran for complaints of left ear hearing loss and recurrent otitis media with draining and noted that the Veteran had scarring of the left eardrum, 25 percent hearing loss in the left ear, and 11 percent hearing loss in the right ear. The report of a June 1954 VA examination included the Veteran's complaint of difficulty hearing in the left ear and drainage if he got water in his ear. He informed the examiner that he was treated in service in 1951 for discharge in his ear after swimming. The Veteran was able to hear ordinary conversation in the left ear at 25 feet in the right ear and 18 feet in the left ear. Air conduction was slightly reduced in the left ear with C-2 tuning fork. The left eardrum was thickened and perforated, the right appeared normal. VA outpatient treatment records dated in 2009 and 2010 were negative for complaints or treatment for bilateral hearing loss and include the Veteran's June 2009 denial of any serious problems with his ears. The December 2012 VA examination included a diagnosis of bilateral sensorineural hearing loss; however, the examiner indicated he could not provide a medical opinion regarding the etiology of the hearing loss without resorting to speculation. The examiner noted that the Veteran was exposed to weapons fire with no hearing protection during basic training and denied any significant non-military noise exposure. The examiner indicated that although the right ear exhibited a high frequency notch that would appear to be consistent with loud noise exposure, this opinion was deferred to ENT evaluation due to the history of skull fracture, which could potentially cause sensorineural hearing loss. The Veteran failed to appear for the ENT evaluation. The VA examiner indicated he could not provide an opinion as to medical nexus, but as a rationale for that determination, indicated that the Veteran's history of skull fracture before service and history of noise exposure in service could both potentially cause hearing loss. Given the medical picture, an opinion was deferred to an ENT evaluation, but the Veteran did not appear for that examination. The Board finds that the December 2012 VA examiner's conclusion that it would be speculation to offer an opinion as to the etiology of hearing loss is supported by a thorough rationale and is accepted. Jones v. Shinseki, 23 Vet. App. 382 (2010). There is no medical opinion to contradict the conclusion of the December 2012 VA examiner. As for the Veteran's assertions connecting his hearing loss to service, the Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, whether the Veteran has a hearing loss disability which is due to service, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377. The Veteran is competent to testify as to observable symptoms, such as decreased hearing acuity, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. Based on a review of the record, service connection for hearing loss is not warranted. As for the claimed tinnitus, service treatment records dated in January 1952 show the Veteran was treated for otitis media of the left ear after swimming in December 1951. The provider found a large perforation of the left eardrum and discharge. Chronic otitis media suppurative of the left ear was determined to exist prior to service and not to have been aggravated by service. There were no complaints of tinnitus. He was deemed physically unfit for continued service and discharge was recommended. The Veteran was not afforded a discharge examination. He was discharged from service in January 1952. Lay statements dated in 1954, letters from Dr. TTS and Dr. FHS dated in 1954, the report of VA examination dated in 1954, and a summary of the medical record of the Veteran's hospitalization in August 1942 at Elizabeth Hospital were all devoid of mention of tinnitus. VA outpatient treatment records dated in 2009 and 2010 were also negative for complaints or treatment for tinnitus. In fact in June 2009, the Veteran denied any serious problems with his ears and they were considered unremarkable. In July 2009, the Veteran's ears were found to be atraumatic. The Veteran was afforded a VA examination in December 2012. He denied recurrent tinnitus. The examiner opined it was less likely than not that tinnitus was caused by or a result of military noise exposure as the Veteran denied any noticeable tinnitus at the time of examination. Based on the foregoing evidence, the Board concludes that service connection is not warranted for the Veteran's claimed tinnitus. The Board is cognizant that the Veteran's service treatment records do show treatment for a large perforation of the left eardrum and discharge after swimming in 1951; however, the Veteran has not alleged continuous symptoms since service in the form of ringing in his ears. Tinnitus, is not a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is not warranted. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. However, the competent evidence does not establish that he has a current tinnitus disability related to service. The Veteran is competent to describe the symptoms he has experienced (ringing in his ears) that are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board cannot reject, or find nonprobative, lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has not made statements as to continuous tinnitus problems since service. He simply filed a claim for tinnitus. Any statements as to continuous symptoms since the swimming incident in service would be inconsistent with the overall record as the Veteran denied recurrent tinnitus during VA examination in 2012. Moreover, VA outpatient treatment records dated after service contain no complaints or treatment referable to tinnitus. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In sum, the competent evidence does not establish that the Veteran has a current tinnitus. Without evidence of a current disability, there is no basis for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim must be denied. ORDER New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. The appeal to this extent is granted. Entitlement to service connection for bilateral hearing loss is denied. New and material evidence has not been received to reopen the claim of service connection for chronic otitis media of the left ear. The appeal to this extent is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs