Citation Nr: 0014606	
Decision Date: 06/02/00    Archive Date: 06/09/00

DOCKET NO.  99-00 312A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUES

Whether new and material evidence has been presented to 
reopen a claim for service connection for bilateral hearing 
loss.  

Entitlement to service connection for residuals of pneumonia.  

Entitlement to service connection for residuals of frozen 
feet.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. R. Harryman, Counsel


INTRODUCTION

The veteran had active service from December 1942 to December 
1945.  

This case came before the Board of Veterans' Appeals (Board) 
on appeal from a decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Pittsburgh, 
Pennsylvania, in June 1998 which denied the claimed benefits.  

Service connection for hearing loss was denied by a February 
1984 rating decision.  



FINDINGS OF FACT

1.  Service connection for hearing loss was denied by a 
rating decision in February 1984.  The veteran was notified 
of that determination and did not file a notice of 
disagreement within one year.  

2.  Evidence added to the record regarding hearing loss since 
February 1984 is either duplicative or redundant of the 
evidence that was of record in February 1984.  

3.  The medical evidence does not show that the veteran 
pneumonia during service, or that he currently has a chronic 
respiratory disorder, or that any current respiratory 
symptoms are related to manifestations noted in service.  

4.  The medical evidence does not show that the veteran 
currently has residuals of frozen feet, or that any current 
foot symptoms are related to service.  


CONCLUSIONS OF LAW

1.  Evidence received since the February 1984 rating 
decision, which denied the veteran's claim for service 
connection for hearing loss is not new and the claim is not 
reopened; the February 1984 rating action is final.  
38 U.S.C.A. §§  5108, 7105 (West 1991); 38 C.F.R. §§  
3.156(a), 3.160(d), 20.302, 20.1103 (1999).  

2.  The claim for service connection for residuals of 
pneumonia is not well grounded.  38 U.S.C.A. § 5107(a) (West 
1991).  

3.  The claim for service connection for residuals of frozen 
feet is not well grounded.  38 U.S.C.A. § 5107(a).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual background

The service medical records show that the veteran was 
hospitalized for approximately 11 days in 1943 for treatment 
of acute catarrhal nasopharyngitis.  The records of the 
hospitalization reflect several notations that his chest was 
clear, although the day before he was discharged from the 
hospital it was noted that he had a slight cough.  A chest x-
ray obtained during the hospitalization was reported as being 
essentially negative.  The records do not reflect 
consideration of a diagnosis of pneumonia.  The treatment 
records do not show any complaints or treatment for frozen 
feet or hearing loss.  The report of the examination that was 
conducted at the time of the veteran's discharge from service 
in December 1945 states that his lungs and feet were normal.  
His hearing was described as 15/15 to whispered voice in each 
ear; no ear abnormalities were noted.  The separation record 
lists the veteran's military occupational specialty as heavy 
truck driver.  

A letter from a fellow serviceman, received in December 1983, 
contains his description of an incident when they were both 
in a battle in November 1944.  He recalled going to the 
veteran's foxhole and seeing him holding his hands over his 
ears and saying that his ears were ringing and "he couldn't 
hear to [sic] good."  He also remembered a doctor telling 
the veteran that "time will tell and everything would be 
O.K."  

A letter from Raymond A. Yourd, M.D., dated in January 1984, 
states that he saw the veteran on one occasion in June 1975 
for his complaint of right sided hearing loss.  The letter 
indicates that the veteran gave a history of having served in 
a tank during service where there was a considerable amount 
of noise.  Dr. Yourd reported that his physical examination 
was relatively normal.  Audiometry, however, demonstrated 
severe nerve loss on the right side and mild sensorineural 
hearing loss for the high frequencies on the left side.  

A February 1984 letter from another private physician, 
George, R. Hart, M.D., states that he had seen the veteran in 
October 1983 regarding hearing problems and nosebleeds.  He 
indicated that the veteran reported considerable exposure to 
noise during service and while at work subsequent to service.  
The examiner reported that the veteran had significant 
sensory neural hearing loss in both ears, worse in the right 
ear.  It was his opinion that the veteran's hearing loss 
"could well have been related to noise exposure while in the 
service and certainly was aggravated further by his loss 
subsequent to that time as he worked in industry."  

A rating decision in February 1984 considered the above 
evidence, but denied service connection for hearing loss.  
The veteran was notified of that determination and did not 
file a notice of disagreement within one year.  

In March 1998, the veteran applied to reopen his claim for 
service connection for hearing loss.  He submitted copies of 
the previous buddy statement and of the 1984 letters from 
Drs. Yourd and Hart.  He also indicated that his feet were 
frozen in December 1942 during combat in Germany; he stated 
that he was treated for that condition while in service and 
by his doctor right after service.  In addition, the veteran 
claimed that he was hospitalized for eleven days in 1943 or 
1944 during service for treatment of pneumonia and that he 
had had problems with his lungs since service.  

Private treatment records dated from November 1974 to 
February 1998 reflect that the veteran was seen for 
occasional colds, with cough and chest congestion, and an 
episode of acute bronchitis in March 1997.  He was 
hospitalized in December 1980 for treatment of the flu.  No 
examiner indicated that the veteran had any chronic 
respiratory condition nor did any examiner relate any of his 
respiratory symptoms to the manifestations that were reported 
in service.  The records show that the veteran was seen for 
complaints of tenderness and numbness in his feet.  The only 
reported abnormal clinical finding was a right heel spur on 
x-ray in 1979.  Gout was suspected as the cause of right foot 
tenderness later in 1979.  No examiner indicated that any of 
the veteran's foot complaints were attributable to residuals 
of frozen feet in service.  It should also be noted that the 
veteran has diabetes mellitus for which he takes an oral 
hypoglycemic medication.  The private records also reflect 
that the veteran was denied a hearing aid by VA, since the 
disability was not service-connected.  

Analysis 

Bilateral hearing loss 

Absent the filing of a notice of disagreement within one year 
of the date of mailing of the notification of the denial of 
an appellant's claim or absent the filing of a substantive 
appeal within the remainder of that year or within 60 days of 
the mailing of the statement of the case, whichever is later, 
a rating determination is final.  38 U.S.C.A. § 7105; 
38 C.F.R. §§ 3.104(a), 20.302, 20.1103.  In order to reopen a 
previously and finally disallowed claim, the United States 
Court of Appeals for Veterans Claims (Court) has indicated 
that a three-step analysis is required.  38 U.S.C.A. § 5108; 
38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140 
(1991); see also Elkins v. West, 12 Vet. App. 209 (1999); 
Winters v. West, 12 Vet. App. 203 (1999).  The first step is 
to determine whether new and material evidence has been 
presented or secured since the time that the claim was 
previously and finally disallowed on any basis.  It should be 
pointed out that, in determining whether evidence is 
material, "credibility of the evidence must be presumed."  
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Further, 
evidentiary assertions by the appellant must be accepted as 
true for these purposes, except where the evidentiary 
assertion is inherently incredible.  King v. Brown, 
5 Vet. App. 19 (1993).  Lay assertions of medical causation 
or diagnosis do not constitute credible evidence, as lay 
persons are not competent to offer medical opinions.  
Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  If new 
and material evidence has been received, then the Secretary 
must immediately proceed to the second step, involving a 
determination as to whether, based on a review of all of the 
evidence, both old and new, the claim is well grounded.  If 
it is determined that the claim is well grounded, then the 
analysis proceeds to the third step, i.e., evaluating the 
merits of the claim, but only after ensuring that the duty to 
assist the claimant under 38 U.S.C.A. § 5107(a) has been 
fulfilled.  

New and material evidence means 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).  

A rating decision in February 1984 denied service connection 
for hearing loss on the basis that the record did not show 
that his current hearing loss was incurred in or aggravated 
by service.  The veteran was notified of that determination 
and did not file a notice of disagreement within one year 
thereafter.  That decision, therefore, is final.  38 U.S.C.A. 
§ 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103.  

Evidence added to the record since February 1984 is either 
duplicative of the evidence that was previously of record or 
shows nothing more than evidence of continued hearing loss.  
None of the evidence added to the record since February 1984 
tends to show that the veteran had hearing loss during 
service or that his current hearing loss is related to any 
injury or disease incurred in service.  Therefore, the 
evidence added to the record since February 1984 is not new.  

The record shows that the RO determined that there was no new 
and material evidence to reopen the claim for service 
connection for hearing loss prior to the decision of The 
United States Court of Appeals of the Federal Circuit in 
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly 
rejecting the standard for determining whether new and 
material evidence has been submitted sufficient to reopen a 
claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 
(1991)).  It was held in Hodge that for evidence to be new 
and material, it must be of such significance that, alone or 
with other evidence of record, it must be considered in order 
to fairly decide the merits of the claim as provided in 
38 C.F.R. § 3.156(a).  The statement of the case indicates 
that the RO used the Colvin analysis in concluding that new 
and material evidence had not been presented.  A remand in 
this case to apply 38 C.F.R. § 3.156(a) and Hodge, however, 
is not appropriate, because the recently submitted evidence 
is not new.  The Board's determination that the evidence is 
not new terminates the requirement for further analysis.  If 
it is not new, it cannot be new and material to reopen the 
claim.  Vargas-Gonzalez v. West, 12 Vet. App. 63 (1998).  

Because the Board has found that new and material evidence 
has not been presented, the veteran's claim is not reopened 
and the February 1984 rating decision is final.  38 U.S.C.A. 
§§  5108, 7105; 38 C.F.R. §§  3.156(a), 3.160(d), 20.302, 
20.1103.  


Residuals of pneumonia and frozen feet

A person who submits a claim for VA benefits shall have the 
burden of submitting evidence sufficient to justify a belief 
by a fair and impartial individual that the claim is well 
grounded.  38 U.S.C.A. § 5107(a); see also Carbino v. Gober, 
10 Vet. App. 507 (1997).  A well-grounded claim is "a 
plausible claim, one which is meritorious on its own or 
capable of substantiation.  Such a claim need not be 
conclusive but only possible to satisfy the initial burden of 
§ [5107(a)]."  Murphy v. Derwinski, 1 Vet. App. 79, 81 
(1990).  In Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992), 
the United States Court of Appeals for Veterans Claims 
(Court) held that a claim must be accompanied by supportive 
evidence and that such evidence "must justify a belief by a 
fair and impartial individual' that the claim is plausible."  
For a claim to be well grounded, there generally must be (1) 
a medical diagnosis 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 an in-service injury 
or disease and the current disability.  Only the evidence in 
support of the claim is to be considered in making that 
determination and, generally, a presumption of credibility 
attaches to that evidence.  Epps v. Brown, 9 Vet. App. 341, 
343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 
1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) 
(table). 

The quality and quantity of the evidence required to meet the 
veteran's burden of necessity will depend upon the issue 
presented by the claim.  Where the issue is factual in 
nature, e.g., whether an incident or injury occurred in 
service, competent lay testimony, including a veteran's 
solitary testimony, may constitute sufficient evidence to 
establish the claim as well grounded.  However, where the 
determinative issue involves medical causation or a medical 
diagnosis, competent medical evidence to the effect that the 
claim is plausible or possible is required.  

Evidentiary assertions by the appellant must be accepted as 
true for purposes of determining whether a claim is well 
grounded, except where the evidentiary assertion is 
inherently incredible.  King v. Brown, 5 Vet. App. 19 (1993).  
However, a claimant would not meet his burden merely by 
presenting lay testimony, including his own, as lay persons 
are not competent to offer medical opinions.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  Lay assertions of 
medical causation or diagnosis cannot constitute evidence to 
render a claim well grounded under § 5107(a); if no 
cognizable evidence is submitted to support a claim, the 
claim cannot be well grounded.  Tirpak v. Derwinski, 2 Vet. 
App. at 610-11 (1992).  

Although the veteran has claimed that he was hospitalized for 
treatment of pneumonia during service, the service medical 
records show that he was treated for acute nasopharyngitis, 
not pneumonia.  The hospital records do not reflect that any 
examiner considered a diagnosis of pneumonia and a chest 
x-ray was reportedly negative for any abnormalities.  Thus, 
although a veteran's statements regarding service incurrence 
are generally accepted as true for purposes of determining 
whether the claim is well grounded, the Board finds that his 
contentions as to the diagnosis of his condition in service 
do not meet the well-groundedness requirements as he does not 
have the medical expertise necessary to make a diagnosis of 
his condition.  

Further, while the evidence shows that the veteran has been 
treated for occasional colds and flu in recent years and was 
even hospitalized on one occasion for such treatment, there 
is no medical evidence indicating that he currently has any 
chronic respiratory disorder and there is no medical evidence 
attributing any of his current respiratory symptoms to 
manifestations noted in service.  

That being the case, the Board finds that none of the 
criteria for a well grounded claim as set forth in Epps has 
been met.  Accordingly, the claim for service connection for 
residuals of pneumonia must be denied.  

While the veteran has claimed that his feet were frozen 
during service in Germany during World War II, the service 
medical records do not show any foot complaints or abnormal 
clinical findings referable to his feet.  Neither do they 
show that he was treated for frozen feet during service as he 
has claimed.  Further, the service records show that his feet 
were normal at the time of his separation from service.  
However, because the veteran has claimed that his frozen feet 
were incurred during combat, 38 U.S.C.A. § 1154(b) provides 
for a significant benefit for a combat veteran in that it 
relaxes the evidentiary requirement regarding the service 
incurrence or aggravation of a disease or injury in service 
for purposes of establishing a well grounded claim.  Kessel 
v. West, 13 Vet. App. 9 (1999) (en banc).  In addition, for 
purposes of submitting a well-grounded claim, a combat 
veteran's statements will generally be sufficient to 
establish the service-incurrence element.  Thus, the Board 
finds that the first criterion for a well grounded claim as 
set forth in Epps is met.  

Nevertheless, § 1154(b) does not constitute a substitute for 
evidence of current disability, causal nexus between a combat 
service injury or disease and a current disability, or the 
continuation of symptoms subsequent to service.  Kessel.  

Although recent private treatment records do reflect some 
complaints of tenderness and numbness in the veteran's feet, 
there is no medical evidence that any of his foot complaints 
over the past 25 years have been attributed to residuals of 
frozen feet and no examiner has related his current 
complaints to any injury or disease incurred in service.  
Moreover, he has submitted no evidence of continued 
symptomatology since service.  

Thus, two of the Epps criteria for a well grounded claim are 
not met as to the veteran's claim for service connection for 
residuals of frozen feet.  Accordingly, his claim must be 
denied as not being well grounded.  


ORDER

In the absence of new and material evidence, the claim for 
service connection for bilateral hearing loss is not 
reopened.  

Service connection for residuals of pneumonia is denied as 
the claim is not well grounded.  

Service connection for residuals of frozen feet is denied as 
the claim is not well grounded.  


		
	C. W. Symanski
	Member, Board of Veterans' Appeals



 


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