Citation Nr: 1410119	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  11-00 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss.

2.  Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a back disability.

4.  Entitlement to service connection for gastroesophageal reflux disorder (GERD).


ATTORNEY FOR THE BOARD

J. Meawad, Counsel




INTRODUCTION

The Veteran served on active duty from November 1963 to December 1965. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  A February 2010 rating decision denied service connection for a back disability and denied the application to reopen the claim for service connection for tinnitus.  A May 2010 rating decision denied service connection for GERD.  A March 2012 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, which the Veteran appealed.

The issues of entitlement to service connection for a back disability and GERD are addressed in the REMAND portion of the decision below.  The Veteran's claim for service connection for GERD is a secondary service connection claim, in that he argues that GERD is caused by medications he is taking for his service-connected conditions.  Thus, the issue of whether service connection for GERD is inextricably intertwined with the back disability claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) These issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  VA audiometric test results show that the Veteran has level I hearing in both ears.

2.  Evidence received since the December 2007 decision does not relate to unestablished facts necessary to substantiate the claim for service connection for tinnitus and does not raise a reasonable possibility of substantiating the claim.



CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  The criteria for reopening the claim for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 5108, 7103(a) (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

The Veteran disagrees with the initial evaluation following the grant of service connection for bilateral hearing loss.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed .  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

An August 2009 letter satisfied the duty to notify provisions for the application to reopen the claim for tinnitus.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in an August 2011 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  A VA examination was conducted in May 2011; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  As the report of the VA examination is based on the Veteran's medical history and provided sufficient detail so that the Board's decision is a fully informed one, the examination is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).   

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486.  




II.  Increased rating

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

In March 2012, the RO granted service connection for the Veteran's bilateral hearing loss and assigned a noncompensable disability rating, effective July 29, 2009.  

Evaluations of defective hearing range from noncompensable to 100 percent for service-connected bilateral hearing loss.  These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second.  To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.

In cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will then be evaluated separately.  

The Veteran was afforded a VA audiological examination in May 2011 and, based on that examination report, service connection was granted and a noncompensable rating assigned.

Applying the results of the audiological examination to Table VI yielded a Roman numeral value of I for both the right and left ears.  Applying those values to Table VII, the Veteran's bilateral hearing loss is appropriately evaluated as 0 percent disabling.  Simply stated, the results do not provide a basis to grant a higher disability rating.  

An exceptional pattern of hearing impairment has not been demonstrated; therefore, the provisions of 38 C.F.R. § 4.86 are inapplicable.  

Although the evidence of record shows that the Veteran clearly has hearing loss as defined by VA, the evidence does not support entitlement to an increased, compensable, evaluation for bilateral hearing impairment at any point during the appeal.  

The preponderance of the evidence is against the claim; there is no doubt to be resolved and a compensable rating is not warranted.  

Extraschedular Consideration

The rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology.  The Veteran's disability picture is contemplated by the rating schedule; the assigned schedular evaluation for the service-connected bilateral hearing loss is adequate; and referral for extraschedular consideration is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).  

Total Disability Rating Due To Individual Unemployability (TDIU)

A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  The holding of Rice is inapplicable since the evidence of record does not show that the Veteran is currently unemployed.  Absent any evidence of unemployability, entitlement to TDIU is not warranted.

III.  New and Material Evidence

The Board denied service connection for tinnitus in July 2005 based on the lack of evidence showing that the disability is due to service.  This decision is final.  38 U.S.C.A. § 7103(a); 38 C.F.R. § 3.160(d).

In July 2009, the Veteran filed a request to reopen the claim.

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  Id.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

'New' evidence is defined as existing evidence not previously submitted to agency decisionmakers.  'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  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.  Id.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The evidence received since the July 2005 rating decision relevant to the claim for service connection for tinnitus includes a VA examination dated May 2011.  There was no other evidence of record relating to the Veteran's claimed tinnitus aside from his claim to reopen.

The evidence of record following the July 2005 rating decision does not contain evidence that is new and material.  In fact, the VA examination stated that no relationship between hearing loss and tinnitus could be established since the Veteran did not report having tinnitus.  The examination report indicated that there was no current complaint of tinnitus.  Evidence that is unfavorable to the appellant's case and which supports the previous denial cannot trigger a reopening of the claim.  See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992).  Additionally, the new evidence does not show that the Veteran currently has tinnitus or that it is related to service in any way.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996).  While this examination is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.  

The evidence received subsequent to July 2005 is not new and material and does not serve to reopen the Veteran's claim for service connection for tinnitus.  Reopening the claim is not warranted.  





ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.

New and material evidence has not been submitted to reopen a claim of entitlement to service connection for tinnitus and the petition to reopen is denied.



REMAND

In January 2010, an examination was obtained regarding the issue of service connection for a back disability as caused or aggravated by the service connected great left toe disability; however, the examiner failed to state whether the Veteran's back disability is aggravated by the great left toe disability.  Another opinion is necessary in order to clarify the examiner's opinion.  Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 U.S.C.A. § 1111; 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d).

Accordingly, the issue is REMANDED for the following action:

1.  Send the Veteran's claims folder to the examiner who conducted the January 2010 VA examination, or if the examiner is no longer available, a suitable replacement, to request that the examiner prepare an addendum to the report.  The Veteran need not be re-examined unless an examination is deemed necessary.  If a physical examination is deemed necessary, all indicated testing must be accomplished.  The file must be made available to the examiner for review.  

Based on the record review and examination results, the examiner must indicate whether it is as likely as not (a 50 percent or greater probability) that the current back disability was aggravated by the service-connected great left toe disability, including any alteration of his gait caused by limping due to the great left toe disability. 

If it is determined that his back disability is related to service, including service-connected great left toe disability, the examiner must provide an opinion as to whether it is at least as likely as not that his GERD is caused or aggravated by the medication the Veteran is taking for his back disability.  

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Then, readjudicate the appeal.  If either of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs