**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-58

[George E. Hill, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Acting Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appellee\'s Motion for Summary Affirmance

(Decided December 21, 1992 )

*Leighton Cornett* was on the brief for appellant.

*James A. Endicott, Jr*., General Counsel, *Barry M. Tapp*, Assistant
General Counsel, *Thomas A. McLaughlin*, Deputy Assistant General
Counsel, and *John D. Lindsay, Jr*., were on the pleadings for appellee.

Before NEBEKER, *Chief Judge*, and HOLDAWAY and IVERS, *Associate
Judges*.

HOLDAWAY, *Associate Judge*: The appellant served on active duty in the
Army from April 1953 until April 1955. He is before this Court appealing
an adverse decision of the Board of Veterans\' Appeals (BVA or Board)
that found no new and material evidence as to a previously denied claim
for hearing loss that appellant was attempting to reopen. He is also
appealing, from the same decision, a denial for an increased rating for
the residuals of service-connected injury to his right middle finger
that was 0% rated for disability purposes. The Court will affirm the
findings as to the claim for the hearing loss; that part of the BVA
decision denying an increased rating for the finger injury will be
reversed and remanded.

**BACKGROUND AND ANALYSIS**

In 1981 the Board denied, inter alia, appellant\'s claim for a hearing
loss in his right ear. The decision did note a \"mild\" hearing loss at
that time, but nonetheless denied relief, pointing to a separation
physical in 1955 and two subsequent examinations in 1958 and 1978, which
were essentially negative for a hearing loss. Appellant was before the
Board in 1987 claiming again for, inter alia, disability due to a
service-connected hearing loss. On this occasion he had a statement from
a Dr. Hunt who averred that he had treated the appellant \"in 1969,
twice in 1981, seven times in 1985, and once this year \[1986\].\" He
noted a *present* hearing loss (1986) but did not opine or even
speculate as to when the loss might have occurred.

Because this new evidence failed to relate the present hearing loss to
the appellant\'s period of service, the Board again denied service
connection. In an attempt to reopen his claim once again for hearing
impairment, the appellant obtained another statement from Dr. Hunt with
a few changes in some of the details. It is the decision of the BVA
finding this second statement as not new and material that is before
this Court on appeal. The Court has no jurisdiction to review either the
1981 or the 1987 decision. To repeat the familiar litany concerning
reopening of previously decided cases: The 1987 decision was final in
the absence of new and material evidence; new and material evidence is
defined as that which is not cumulative with previous evidence and which
is relevant and probative. Further, it must be of such significance that
it raises the possibility of changing the result. *See* 38 U.S.C. § 5108
(formerly § 3008); *Colvin v. Derwinski*, 1 Vet.App. 171, 174 (1991);
*Manio v. Derwinski*, 1 Vet.App. 140, 145 (1991); 38 C.F.R. § 3.156(a)
(1991).

Applying these standards to the case before the Court, we note that the
only difference between Dr. Hunt\'s first statement and his second one
is that in the second statement he averred that he had treated appellant
in May and June 1955, a few weeks after his discharge from the service.
This second statement did not relate any complaints of a putative
hearing loss in 1955. The Board found that the additions made by Dr.
Hunt were essentially cumulative and, hence, not new. The Court agrees.
The fact that Dr. Hunt may have treated appellant at a time closer to
his release from service adds nothing to appellant\'s claim for a
service-connected hearing loss. It is clearly cumulative with the first
statement. Furthermore, in its failure to aver, or even speculate, that
either treatment might have been connected to the hearing loss that was
identified some 20 or so years later, the second statement is not
relevant or probative, i.e., it is not of such significance that a
change in the outcome of the claim would be a reasonable possibility. In
short, to the extent that this evidence may be \"new\" it is not
material, and to the extent that it may be \"material\" it is not new.

As to the claim for increased disability for the service-connected
finger injury, the evidence is unrebutted that there is some degree of
impairment, i.e., a loss of some flexibility to the appellant\'s middle
finger on his right hand. The BVA found that the restriction on the
range of motion was insufficient to permit a higher rating. The relevant
rating code is 38 C.F.R. § 4.71a (1991), Diagnostic Code (DC) 5226. This
code can be understood only by reading the notes from DC 5216 et seq.
Neither the format of the code pertaining to finger injuries nor its
interpretative notes are a model of clarity. The BVA interpretation is
that \"to warrant a compensable evaluation . . . the medical evidence of
record must show that ankylosis of the . . . middle finger *prevents*
flexion of the finger to *within* 2 inches of the . . . palm\" (emphasis
supplied). However, the note accompanying the code actually reads:
\"With only one joint of a digit ankylosed or limited in its motion, the
determination will be made on the basis of whether motion is *possible
to within* 2 inches of the . . . palm; when so possible the rating will
be for favorable ankylosis, otherwise unfavorable\" (emphasis supplied).
In turn, DC 5226 provides that a 10% rating is appropriate whether the
ankylosis is favorable *or* unfavorable. Granting then that the
stiffness was moderate (appellant can apparently touch his palm with the
middle finger, albeit with difficulty) and that appellant could get to
*within* two inches of the palm, it would seem he had a \"favorable\"
condition. Therefore, a 10% rating would seem to follow ineluctably,
unless there is a third category neither favorable nor unfavorable. The
only such third category this Court can find is note (a) appended to DC
5223. However, by its own terms, that note applies only to DCs 5220
through 5223. Admittedly, this seems to place an individual with a
middle finger ankylosis in a better position compared to one with, for
example, both a middle and a ring finger ankylosis. However that may be,
the plain reading of the regulation as to DC 5226 appears to provide a
10% rating under the circumstances of this case. Accordingly, the Court
REVERSES and REMANDS this part of the Board\'s decision for adjudication
consistent with this opinion. That part of the BVA decision denying
compensation for the claimed hearing loss is AFFIRMED.