Citation Nr: 1334235	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  09-25 473	)	DATE
	)
	)

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


THE ISSUES


1.  Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss.

2.  Entitlement to special monthly pension based on need for aid and attendance/housebound benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Eckart, Counsel


INTRODUCTION

The Veteran served on active duty from April 1974 to July 1975.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which declined to reopen a previously denied claim for service connection for bilateral hearing loss and denied entitlement to a special monthly pension based on need for aid and attendance/housebound benefits.


FINDINGS OF FACT

1.  By a December 2006 decision, the Board denied service connection for a bilateral hearing loss.

2.  Evidence received after the December 2006 Board denial does not relate to unestablished facts necessary to substantiate a claim of service connection for a bilateral hearing loss and does not raise a reasonable possibility of substantiating the underlying claim.

3.  The Veteran is not blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; is not a patient in a nursing home because of mental or physical incapacity; and does not have a factual need for aid and attendance demonstrated by an inability to care for most of his daily personal needs or protect himself from the hazards and dangers of his daily environment. 


CONCLUSIONS OF LAW

1.  The Board's December 2006 decision, which denied service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 7104 (West 2002); 38 C.F.R. § 20.1100 (2013).

2.  Evidence received since the December 2006 Board's decision is not new and material. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013).

3.  The criteria for a special monthly pension based upon the need of regular aid and attendance or by reason of being housebound are not met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). 
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letters dated February 2007, addressing the special monthly pension claim and in November 2007 addressing the petition to reopen the claim for service connection for hearing loss, the Veteran was notified of the evidence not of record that was necessary to substantiate his claims.  Such letters were sent prior to the January 2008 rating on appeal.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  

In claims to reopen, as in this case involving the hearing loss claim, VA must notify the claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id.   VA's Office of General Counsel issued informal guidance interpreting the decision in Kent as requiring that the notice provided specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006).  

In the present case, notice was provided to the Veteran in November 2007, prior to the initial adjudication of his claim to reopen for service connection for hearing loss.  The Board finds this notice fully complies with VA's duty to notify.  The Veteran was advised of the reasons why his claim was previously denied and that new and material evidence must be submitted that addresses the reasons for the prior denials.  He was further advised of the types of evidence he needed to submit.  Finally, he was advised of what information and evidence was necessary to substantiate the underlying service connection claims.  

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied for both appellate issues.

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained.  The Board notes that the claims file contains service treatment records, service personnel records, post-service private and VA treatment records, records from the Social Security Administration, and lay statements. 

Generally, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. When a claim is one to reopen a previously decided claim, however, VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received.  See 38 C.F.R. § 3.159(c)(4)(iii).  The Veteran was provided with a VA medical examination and medical opinion regarding the claim for aid and attendance/housebound benefits.  However, because new and material evidence has not been received regarding the claim of service connection for hearing loss, VA was not obligated to provide him with medical examinations as to that claim.  

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. 

II. Claim to Reopen-New and Material Evidence

Service connection for bilateral hearing loss was previously denied by the RO in multiple prior rating decisions and most recently was denied by the Board in a December 2006 decision.  The Board found that hearing loss did not have its clinical onset in service and is not otherwise related to active duty.  

In September 2007, the Veteran requested that VA reopen the previously denied claim for service connection.  Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a)  defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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 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).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law , "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83   (1996).  Here, the last final denial of the claim is the Board's December 2006 decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13   (1992).

Among the evidence previously before the Board in December 2006, were service treatment records that included audiological findings on entrance examination in April 1974 and separation examination in July 1975 that fell in the criteria for normal hearing for VA purposes.  The service treatment records revealed no problems, complaints or medical history of hearing problems or ear trouble.  His service personnel records show a military occupational specialty consistent with noise exposure, of Armor Crewman.  His December 2000 hearing testimony also before the Board in December 2006 provided further detail about his acoustic exposure, describing his duties as loading shells on tanks and sometimes driving tanks, with poor or no hearing protection.  He testified that he started having hearing problems while out in the field in Germany and said he told his First Sergeant about such problems and was sent to a dispensary.  

Also before the Board in December 2006 were post service audiological evaluations, noted to show hearing within normal limits in February 1988.  The earliest evidence of findings of hearing loss within the VA criteria is shown in a December 1993 VA audiology examination.  A December 1994 VA audiological evaluation noted the Veteran to have progressive hearing loss, with a history of noise exposure in the past.  The test findings again were suggestive of hearing loss, and it was suggested that he should be thinking of using a hearing aid.  A December 2001 hearing test was attempted with no valid results due to excessive cerumen in both ears.  

Also before the Board in December 2006 was the report of an August 2003 VA audiological examination which had been conducted without the review of the claims file.  The findings from the audiological testing met the VA criteria for hearing loss, and the Veteran was diagnosed with mild sensorineural hearing loss (SNHL) of the right ear from 3000 to 8000 Hertz and mild to moderate SNHL of the left ear from 1000 to 8000 Hertz, with the most likely etiology said to be military noise exposure.  Subsequently, in January 2004 an addendum opinion was obtained from the same VA audiologist who conducted the August 2003 examination, this time with the claims file available and reviewed by the examiner.  The examiner noted the findings from the claims file including the normal hearing shown on entrance and separation examinations in service, with the first audiology examination showing hearing loss noted to be in December 1993, some 18 years after service.  The examiner reversed her opinion from August 2003 and summarized that the separation examination audiology reports were normal, therefore the Veteran's hearing loss was not likely related to military noise exposure.  

Among the nonduplicative and pertinent evidence submitted after the December 2006 Board decision was a December 2007 VA audiological examination, which included review of the claims file and findings showing the following.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
10
15
25
LEFT
5
25
15
30
15

Speech audiometry revealed speech recognition ability of 92 percent in each ear.

The diagnosis was mild to moderate high frequency SNHL of the right ear from 6000 to 8000 Hertz and mild sloping to moderate high frequency SNHL of the left ear from 3000 to 8000 Hertz.  The examiner noted the normal findings on entrance and separation examinations and gave an opinion that since the discharge evaluation yielded normal hearing bilaterally, therefore the hearing loss was not related to noise exposure/acoustic trauma in military service.  A note to this examination also dated in December 2007, described the Veteran as having been seen for a compensation and pension examination by audiology and noted that the hearing thresholds have improved bilaterally regarding the previous audiometric evaluation and speech recognition scores were excellent bilaterally.  

The additional evidence of record, while new, is not material, as it does not relate to an unestablished fact necessary to substantiate the claim.  The additional evidence which reveals more recent findings on audiological evaluation essentially provides the same unfavorable opinion that the Veteran's hearing loss is unrelated to service, including acoustic trauma, as the prior unfavorable opinion from January 2004.  There is no other additional evidence submitted to suggest that the hearing loss was due to service.  When considering additional evidence in conjunction with the evidence previously of record, the Board does not find the additional evidence is new and material.  The additional evidence supporting the Veteran's claim is insufficient to reopen the claim.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

III.  Entitlement to Special Monthly Pension based on Aid and Attendance/Housebound 

The Veteran contends that he should be granted a special monthly pension for aid and attendance/housebound benefits.  In support of this claim filed in January 2006, he reported receiving attendant care and submitted a prescription slip prescribing attendant care 4 hours a day for 7 days a week for post traumatic arthritis of the left foot for the dates from October 18, 2006 to January 31, 2007.

The Veteran has been in receipt of nonservice-connected pension benefits effective March 25, 2003, when a February 2004 rating granted entitlement to such benefits on an extraschedular basis pursuant to 38 C.F.R. § 3.321.  Currently his combined evaluation for pension purposes is 50 percent disabling.  

Special monthly pension at the aid and attendance rate is payable when the veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person.  To establish a need for regular aid and attendance, the Veteran must be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; a patient in a nursing home because of mental or physical incapacity; or show a factual need for aid and attendance.  38 C.F.R. §§ 3.351(b)-(c), 3.352(a).

A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature.  It also includes the frequent need of adjustment of any special prosthetic or orthopedic appliances or either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment.  Also, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a).  The particular personal functions which the veteran is unable to perform should be considered in connection with the claimant's condition as a whole.  The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need.  Determinations that the Veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran to be in bed.  They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a).  The veteran must be unable to perform one of the enumerated disabling conditions, but the veteran's condition does not have to present all of the enumerated disabling conditions.  Turco v. Brown, 9 Vet. App. 222, 224 (1996).

The criteria for determining whether a veteran is in need of the aid and attendance of another person may be met if he is bedridden.  "Bedridden" is defined as a condition that, through its essential character, actually requires that the veteran remain in bed.  The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352.

A Veteran receiving non-service-connected pension may receive housebound-rate special monthly pension if he has a disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the "aid and attendance" rate. 38 U.S.C.A. § 1521(e); 38 C.F.R. § 3.351(d)(1) and (2). 

A Veteran will be found to be "permanently housebound" when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. 38 U.S.C.A. § 1502(c); 38 C.F.R. § 3.351(d)(2).

The Veteran is currently service connected for tinnitus for which he receives a 10 percent rating.  This is his lone service connected disability.  His non-service connected disorders are listed as personality disorder, evaluated as 30 percent disabling, back disability evaluated as 10 percent disabling, acquired mental disorder to include post traumatic stress disorder and depression evaluated as 10 percent disabling, and 3 noncompensable disorders of left arm injury, hearing loss and vertigo.  His combined evaluation for pension purposes is 50 percent disabling, and he was granted this pension on an extraschedular basis.  

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The evidence does not reveal any significant findings of functional effects from the service connected tinnitus for the purposes of determining entitlement to special monthly pension.  Likewise his hearing loss is not shown to result in any significant findings regarding function other than his being counseled in the August 2003  and December 2007 VA audiological examinations as to wearing hearing aids, using hearing protection in noise and social adjustments as needed.  However he was noted to not use hearing aids in a general medical examination in July 2003 which was otherwise unremarkable except for tinnitus.  He continued to not use hearing aids as shown elsewhere in the record, including in an October 2007 VA general medical examination. 

Among the disabilities besides tinnitus and hearing loss, the Veteran is noted to have back pain treated in 2003 with physical therapy, with the back pain said to have begun in a fall about a year earlier according to an August 2003 VA record.  The back pain was accompanied by numbness and tingling of the right leg, of an 8/10 intensity according to another August 2003 record.  He also was treated for erectile dysfunction and left tennis elbow in December 2003.  He additionally is shown to have had treatment and evaluation for a claimed psychiatric disorder, including depression and post traumatic stress disorder, with findings on VA examination of July 2003 diagnosing adjustment disorder with depressed mood, with no contraindications for him being able to engage in competitive employment from this disorder.  

Social Security records including private treatment records, in addition to VA, reveal that the lumbar spine pain was described in May 2005 as intractable, possibly of a discogenic nature and had no sustained benefit from physical therapy.  An MRI from May 2005 diagnosed multilevel spondylosis and degenerative disc disease (DDD) of the lumbar spine.  Additionally the Veteran sustained a fractured left foot after he was hit by a motor vehicle as a pedestrian and underwent surgery in March 2005 to repair a fracture of the left cuboid and dislocation/fracture of the 4th and 5th digits of the left foot.  Subsequent to this surgery, he was noted to have increased difficulty ambulating in May 2005 as a result both of the foot injury and low back pain with associated lower extremity neurological symptoms, and used a cane to ambulate, as well as wearing an ankle/foot orthosis.  However he was shown to be able to walk using a walking cast boot as well as a cane, and continued to use these for ambulation in records from May through September 2005.  In September 2005, he continued to ambulate with a cane, with an antalgic gait and used a support boot on his left foot.  He had decreased sensation in the left L4-5 dermatome and continued with tenderness, and spasm in the lumbosacral muscles, with 50 percent of normal motion in the low back that was quite painful.  He additionally was treated in January 2006 for dermatology issues including tinea pedis and acne, with a past medical history significant for hearing loss, impacted cerumen, cutaneous candidiasis, erectile dysfunction, lateral epicondylitis and fracture of unspecified bone of the foot.  

The records did not show the Veteran to be using or otherwise in need of assistance for ambulation or attending to self care, other than with the use of these devices.  The records also do not show evidence of his requiring aid and attendance for psychiatric reasons.  Nor do the records show evidence of blindness or near blindness.  

In an October 2007 VA general medical examination, the Veteran's past medical history included chronic low back pain, with a history of degenerative arthritis and DDD of the low back and history of left foot fracture with surgery.  He also had a documented history of hearing loss without use of hearing aid, chronic tinnitus, and erectile dysfunction.  He also had a past history of dermatological conditions of acne, tinea pedis, onychomycosis of the feet and chronic candidiasis, with no current treatment.  In terms of his need for aid and attendance he did not at this time require an attendant in reporting for this examination.  He was not hospitalized and not permanently bedridden.  He said he was transported to the examination by the VA today.  He did appear capable of managing his benefits in his own best interest.  Regarding his capacity to protect himself from the hazards and dangers of his daily environment, at this time he denied any changes of advancing age, dizziness or bowel or bladder incontinence.  He denied a loss of memory.  He did have poor balance and must walk with a cane due to chronic back pain and residuals of post traumatic fracture to his left foot with subsequent surgery and pin and metal placement to the foot.  

As far as self care he did his own care including dressing, showering, shaving and attending to the wants of nature without any assistance.  If traveling outside his home, he could walk short distances.  He did not drive, had no car and no license.  He was again noted to have been driven to this appointment by VA.  His typical day was spent inside his apartment.  He was noted to have back pain of a constant 7/10 level that was aggravated by walking more than 2 blocks, standing more than 15 minutes, sitting over 30 minutes or cold/damp weather.  His foot pain was a constant 5/10 aggravated to 8/10 with any standing, walking greater than 5 minutes at a time.  

On examination, his vision was noted to be 20/20 in both eyes with correction.  He was noted to walk with a mildly antalgic gait and he walked with the assistance of a cane.  Physical examination also revealed pertinent findings of painful and restricted motion of the hips, and of the lumbar spine, with all other motions of the upper and lower extremities and cervical spine to be full and painless.  Other significant findings were of spasm of the diffuse paraspinal muscles of the thoracolumbar spine.  His reflexes were shown to be 2+ and symmetric throughout and there were no significant neurological findings shown on comprehensive neurological evaluation from the cranial nerves, throughout the upper and lower extremities, with the exception of positive straight leg findings at 32 degrees in the lower extremities and positive Patrick and Gaenslen signs elicited in both hips.  The examiner opined that the Veteran appears fully capable of self feeding, bathing, shaving and toileting without assistance.  He was able to walk outside the home for short distances.  He did not drive, but had no license or car.  He either took a bus or had a friend or the VA drive him.  

The Veteran has not submitted any evidence since this October 2007 examination, nor has he notified the VA of any evidence suggesting his condition has worsened since this examination.

The Board finds that the preponderance of the evidence is against the award of a special monthly pension based upon the need for regular aid and attendance.  The Veteran does not meet the criteria of blindness, or near blindness, in both eyes.  Additionally, as the Veteran was presently living independently, he does not meet the criteria of confinement to a nursing home due to mental or physical incapacity.  He also does not meet the criteria to establish a factual need for aid and attendance of another person.  The evidence of record does not show that he is actually unable to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature.  The evidence in the record shows that the Veteran was able to maneuver, sometimes with the use of a cane and support boot, that he was able to take the bus apparently without assistance, and that he was not confined to bed.  The Board reiterates that the evidence, overall, has not established that the Veteran would be unable to dress, feed himself, or attend to his hygiene needs without the assistance of others. 

His total combined evaluation for pension purposes is 50 percent disabling, and he was granted this pension on an extraschedular basis.  Thus he is not shown to meet the criteria for special monthly pension based on permanent and total disability (other under 38 C.F.R. § 4.17) and additional disability or disabilities independently ratable at 60 percent or more, under 38 U.S.C.A. § 1521(e); 38 C.F.R. § 3.351(d)(1).  

The Board also finds that the preponderance of the evidence is against the claim for a special monthly pension by reason of being housebound.  The evidence does not show that he is housebound, and in fact has been shown able to travel outside the confines of his home including by walking and taking the bus.  While he may have difficulty walking, he is not confined to his dwelling by his disabilities. 

The Board has considered the Veteran's statements in support of his claim that he is entitled to a special monthly pension.  While the Veteran is certainly competent to report on the nature of his symptoms, the training and experience of VA medical personnel makes their findings reflected in VA treatment records and the VA examination report more probative as to the extent of his disability.  See Cromley v. Brown, 7 Vet. App. 376, 379 (1995).

The Board finds that the weight of the evidence does not show that the Veteran meets the requirements for a special monthly pension based upon the need for regular aid and attendance or by reason of being housebound.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

New and material evidence not having been received, the appeal to reopen a claim of entitlement to service connection for bilateral hearing loss is denied.

Entitlement to special monthly pension based on need for aid and attendance and/or housebound benefits is denied.  




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs