Citation Nr: 1750171 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 16-13 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for arthritis of the left hip, and if so whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision dated in May 2012 (left ear hearing loss), July 2014 (left hip) and January 2016 (bilateral hearing loss) by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for arthritis of the left hip is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level II hearing loss bilaterally, with speech discrimination scores of no worse than 88 percent in each ear. 2. In an October 2007 rating decision, the RO denied the Veteran's claim for service connection for a hip disability; the Veteran did not appeal that decision or submit relevant evidence during the appeal period and that decision is final. 3. Some of the evidence received since the October 2007 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for arthritis of the left hip. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). 2. Evidence submitted since the last final denial of service connection for bilateral hearing loss is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating-Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz ("specified frequencies"). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.86, 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 Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (2017). Further, when the pure tone threshold is 30 decibels at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. The use of Table VIA is also appropriate when an examiner certifies that use of a speech discrimination test is not appropriate. 38 C.F.R. § 4.85. The Board has reviewed all the evidence in the record. 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 below 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking a compensable rating for his service-connected bilateral hearing loss. Service connection for hearing loss in the left ear had been established in an unappealed October 2007 rating decision. Service connection for the right ear was established in a January 2016 rating decision, effective September 22, 2010, at which point his bilateral hearing loss was rated as noncompensably disabling. . A VA examination conducted in August 2011 showed pure tone thresholds of 15, 15, 20, and 25 decibels in the Veteran's right ear and 15, 20, 55, and 60 decibels in the left ear at the specified frequencies, resulting in average pure tone thresholds of 19 decibels in the right ear and 38 decibels in the left ear. The examiner noted the initial speech recognition scores were 88 percent bilaterally. However, after modification, speech recognition scores were 92 percent bilaterally. The examining audiologist also noted that the effect of the Veteran's bilateral hearing loss on his usual occupation and activities of daily living was mild and without amplification, it may be difficult for the Veteran to understand verbal instructions or requests and to communicate with his family and friends, respectively. Using the lower 88 percent for speech recognition scores and applying the results of the audiological testing to Table VI, yields a finding of Level II hearing loss bilaterally. Further, when hearing ability is Level II in each ear, a noncompensable evaluation is warranted under Table VII. Another VA examination conducted in August 2012 showed pure tone thresholds of 15, 15, 20, and 25 decibels in the Veteran's right ear and 15, 15, 55, and 60 decibels in the left ear at the specified frequencies, resulting in average pure tone thresholds of 19 decibels in the right ear and 36 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 88 percent in the left ear. The examining audiologist also noted that the effect of the Veteran's bilateral hearing loss on his usual occupation and activities of daily living was difficulty understanding speech, particularly in the presence of noise. Applying the results of the audiological testing to Table VI yields a finding of Level I hearing loss in the right ear and Level II hearing loss in the left ear. Accordingly, a noncompensable evaluation is warranted under Table VII. The Veteran submitted private audiology testing in May 2017 which showed pure tone thresholds of 15, 10, 15, and 20 decibels in the right ear and 10, 20, 60, and 60 decibels in the left ear at the specified frequencies, resulting in average pure tone thresholds of 15 decibels in the right ear and 38 decibels in the left ear. Speech recognition scores were 96 percent bilaterally. Applying the results of the audiological testing to Table VI yields a finding of Level I hearing loss bilaterally. Further, when hearing ability is Level I in each ear, a noncompensable evaluation is warranted under Table VII. The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, including difficulty hearing in the presence of background noise, and has also considered the buddy statement from the Veteran's friend corroborating the Veteran's difficulty hearing speech where interfering sounds are present. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Thus, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran's hearing loss. The Board finds the VA examinations, in particular, highly probative, and notes that they were conducted in accordance with 38 C.F.R. § 4.85(a). Moreover, the 2011 and 2012 VA examiners addressed the effects of the Veteran's hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In sum, the most probative evidence of record reflects findings consistent with a noncompensable rating for bilateral hearing loss throughout the entire period on appeal. Accordingly, entitlement to a compensable rating for bilateral hearing loss is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. II. New and Material-Left Hip Arthritis The Veteran's claim for service connection for a hip disability was initially denied in an October 2007 rating decision. The Veteran did not appeal the rating decision, nor did he submit new and material evidence within one year of that decision; therefore, that decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In August 2010, the Veteran submitted a claim for service connection for degenerative arthritis of the left hip secondary to his service-connected diabetes mellitus. In a July 2014 rating decision, the RO reopened the Veteran's claim, but denied it on the merits. Regardless of the RO's actions, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened before addressing the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, if a claim for service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the October 2007 rating decision included service treatment records and post-service medical records. Service connection was denied because there was no evidence of record showing that the Veteran had a current hip disability that was occurred in or caused by service. Evidence added to the record since the October 2007 rating decision consists of additional treatment records, lay statements, VA examination reports, and the Veteran's hearing testimony. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material, as it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disabilities. In this regard, private treatment records show that the Veteran was diagnosed with left hip arthritis in April 2010. In June 2010, the Veteran's private physician stated that the Veteran has left hip arthritis which may, at some point require a total hip arthroplasty, and that diabetes may impact wound healing and implants bonding to the bone. Further, the Veteran testified that in March 2013 he underwent left total hip arthroplasty due to his degenerative arthritis. He also stated that his left hip arthritis is associated with the in-service fall he had during jump training where he injured his back, which is service-connected. Accordingly, the claim for service connection for arthritis of the left hip is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. New and material evidence having been received, the claim for service connection for arthritis of the left hip is reopened, and to this extent only the appeal is granted. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for arthritis of the left hip. As mentioned above, the Veteran testified that his left hip arthritis is associated with the same in-service injury during jump training for which his back is service-connected. However, service treatment records note that in July and October of 1964 the Veteran presented for treatment for strained back due to unloading a truck, not a jump injury. In July 2012, the Veteran submitted a written statement indicating that he made 22 parachute jumps and recalled continuous back pain and soreness, but his unit was encouraged to keep sick call at a minimum. In June 2010, the Veteran's private physician stated that the Veteran has left hip arthritis which may, at some point require a total hip arthroplasty, and that diabetes may impact wound healing and implants bonding to the bone. In 2013, the Veteran underwent a total hip arthroplasty. Moreover, per the Veteran's October 2014 notice of disagreement for his left hip arthritis, he stated that he was service-connected for degenerative joint disease of the lumbar spine and contended that degenerative joint disease is a disease process and therefore can occur in any joint in the body, seemingly asserting a claim for secondary service connection. In addition, VA treatment records show that in July 2016 the Veteran complained of left hip pain for the past six months which radiated across the anterior aspect of the hip and moved to greater trochanter down the leg. The physician stated that he did not believe the pain to be originating from the left hip, but likely radicular pains from the lumbar spine and noted that x-rays of the left hip appeared to show lucency around the stem of the left hip; however, bony ingrowth of the metaphyseal area appeared to be complete without evidence of osteolysis. A week later, the Veteran returned to the clinic for re-evaluation. The physician noted that given the clinical picture, he wanted to rule out infected hardware. X-ray findings of the left hip revealed no acute fracture or dislocation, no evidence of hardware failure or loosening, and the soft tissues were unremarkable. The physician assessed that the labs were non-suggestive of infectious etiology for hip pain and there were no radiographic signs of hardware failure. Given the above, the Board finds that an addendum opinion should be obtained. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the record updated VA treatment records dated since April 2017 to the present. If no such records exist, the claims file should be annotated to reflect such and the Veteran and his representative notified of such. 2. Send the claims file to an appropriate VA examiner to obtain an opinion concerning the relationship between the Veteran's left hip arthritis and service or his service-connected degenerative joint disease of the lumbar spine and/or diabetes. If a VA examination is deemed necessary to respond to the questions presented, such should be scheduled. After review of the claims file, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's left hip arthritis is etiologically related to service, to include the reported 22 parachute jumps? Please explain why or why not, to include addressing why his left hip arthritis is not merely a delayed post-traumatic response to events in service. b. If the Veteran's left hip arthritis is not related to his service, is the left hip arthritis at least as likely as not caused by the Veteran's service-connected degenerative joint disease of the lumbar spine or diabetes? Please explain why or why not, to include addressing the Veteran's assertion that the arthritis process spread from his back to his hip. c. If the Veteran's left hip arthritis was not caused by the Veteran's service-connected degenerative joint disease of the lumbar spine, is it at least as likely as not that the left hip arthritis has been worsened beyond normal progression by the Veteran's service-connected degenerative joint disease of the lumbar spine and/or diabetes? Please explain why or why not. d. If the examiner finds that the Veteran's left hip arthritis is worsened beyond normal progression (aggravated) by his service-connected degenerative joint disease of the lumbar spine and/or diabetes, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of left hip disability that is due to the degenerative joint disease of the lumbar spine and/or diabetes. Please explain the reasoning for the conclusion reached. 3. After completing the above requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs