Citation Nr: 1800835 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 09-35 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a compensable rating for hearing loss. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a right wrist disability, to include degenerative joint disease and tendonitis. 4. Entitlement to service connection for a dental disability for VA outpatient dental treatment purposes. 5. Entitlement to service connection for a dental disability for compensation purposes. 6. Entitlement to service connection for a psychiatric disability, to include a depressive disorder and posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for a kidney disability, to include kidney failure. 8. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from March 1969 to May 1976, including service in the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2007, April 2011, September 2014, October 2014, and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In the December 2007 rating decision, in pertinent part, the RO denied the Veteran's claim for service connection for depression and PTSD. In the April 2011 rating decision, the RO denied the Veteran's claim for service connection for a dental condition and his request to reopen his previously denied claim for service connection for a right wrist condition. In the September 2014 rating decision, in pertinent part, the RO denied the Veteran's claim for service connection for sleep apnea. In the October 2014 rating decision, the RO denied the Veteran's claim for service connection for kidney failure. In the June 2015 rating decision, the RO denied the Veteran's claim for a compensable rating for hearing loss. In May 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran's claim for service connection for depression and PTSD has been recharacterized as a psychiatric disability to include a depressive disorder and PTSD; the Veteran's claim for service connection for kidney failure has been recharacterized as a kidney disability to include kidney failure. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). It is unclear from the record whether the Veteran is seeking service connection for a dental disability for the purposes of compensation or treatment. Because a claim for service connection for a dental disability is also considered a claim for VA outpatient dental treatment, the Board has recharacterized the issues on appeal accordingly. Mays v. Brown, 5 Vet. App. 302, 306 (1993). The issues of entitlement to service connection for a right wrist disability, a psychiatric disability, a kidney disability, sleep apnea, and a dental disability for compensation purposes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the period on appeal, the Veteran's bilateral hearing loss was not manifested by worse than a Level II hearing loss in each ear. 2. The Veteran's claim for service connection for a right wrist condition was denied in a July 2008 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 3. Evidence received since the July 2008 rating decision raises a reasonable possibility of substantiating the claim of service connection for a right wrist disability. 4. The Veteran has had a total rating based on unemployability due to service-connected disabilities (TDIU) since December 18, 2013. CONCLUSIONS OF LAW 1. During the period on appeal, the criteria for a compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The July 2008 rating decision is final with regard to the issue of entitlement to service connection for a right wrist disability. New and material evidence sufficient to reopen the claim of entitlement to service connection for a right wrist disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. The criteria for service connection for a dental disability for VA outpatient dental treatment purposes have been met. 38 U.S.C. § 1712 (2012); 38 C.F.R. § 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a July 2015 statement, as well as in his testimony in the May 2017 hearing, the Veteran contended that VA audiological examinations are inherently flawed in that they are conducted in a soundproof room with headphones and that this means that they do not reflect the functional impact of his hearing loss on his daily life. The Court of Appeals for Veterans Claims (Court) has upheld VA's policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, the Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017) that VA's audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran's difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during the June 2015 and November 2016 VA examinations. Neither the Veteran nor his representative have raised any other issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Hearing Loss Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran contends that his service-connected hearing loss warrants a compensable rating. VA received the Veteran's claim for an increased rating on February 24, 2015. 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the 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. 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). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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 in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In June 2015, the Veteran was afforded a VA examination. The examiner diagnosed bilateral sensorineural hearing loss. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 25 25 25 25 LEFT EAR 25 20 25 20 20 The puretone average in the right ear was 25 and the puretone average in the left ear was 21. Speech recognition was 94 percent in each ear. The examiner noted the Veteran's report of functional impact in the form of difficulty hearing, particularly the need to ask people to repeat themselves or increase television volume. 38 C.F.R. § 4.10; see also Martinak, 21 Vet. App. 447. The findings from the June 2015 VA examination require the use of Table VI for each ear. Applying the findings to that table yields findings of Level I hearing loss in each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII. Id. In his July 2015 Notice of Disagreement (NOD), the Veteran again reported that he had difficulty understanding people without asking them to repeat themselves. In November 2016, the Veteran was afforded an additional VA examination. The examiner diagnosed bilateral sensorineural hearing loss. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 20 20 15 20 LEFT EAR 15 15 20 15 20 The puretone average in the right ear was 19 and the puretone average in the left ear was 18. Speech recognition was 86 percent in the right ear and 90 percent in the left ear. The examiner noted the Veteran's report of functional impact in the form of difficulty hearing, particularly a need to increase television volume. 38 C.F.R. § 4.10; see also Martinak, 21 Vet. App. 447. The findings from the November 2016 VA examination require the use of Table VI for each ear. Applying the findings to that table yields findings of Level II hearing loss in each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Where hearing loss is at Level II in each ear, a noncompensable rating is assigned under Table VII. Id. The Veteran asserts that his hearing loss is worse than its currently assigned noncompensable rating. He is competent to report a decrease in hearing acuity and his statements are credible. The Board acknowledges the Veteran's complaints regarding the impact of hearing loss on his daily life, but his lay assertions do not constitute competent evidence to indicate that his hearing disability is worse than has been recorded in his VA examinations or that hearing loss has functionally affected the Veteran in any more severe ways than have been discussed in the record and were already considered by medical professionals. The competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not competent to make such a conclusion. Determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. The record does not show that the Veteran possesses the training or experience needed to accomplish these actions. The probative value of his assertions is low. In brief, the medical examination findings are of greater probative value than the Veteran's allegations regarding the severity of his hearing loss and the nature of any functional impairment is adequately reflected by those medical findings. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Wrist - New and Material Evidence The Veteran contends that he has a right wrist disability that is etiologically related to his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The RO denied the Veteran service connection for a right wrist condition in a July 2008 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the July 2008 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the July 2008 denial was a lack of evidence that any current right wrist disability was etiologically related to active duty service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in July 2008, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a right wrist disability as a result of an in-service injury or illness. The evidence that was of record at the time of the July 2008 rating decision included the Veteran's service treatment records, VA treatment records, June 2005 and February 2008 VA examination reports, and a December 2005 private medical opinion. Since the July 2008 rating decision, the Veteran testified during his May 2017 Board hearing that he had experienced continuous symptoms from his active duty service to the present. As the record now contains more evidence pertinent to the issue of nexus to service than it did in November 1969, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Dental - Treatment "Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability may be authorized any needed dental treatment." 38 C.F.R. § 17.161(h). The Veteran has had a 100% rate by reason of individual unemployability since December 18, 2013. For that reason, service connection for a dental disability for VA outpatient dental treatment purposes is warranted as a matter of law. ORDER Entitlement to an initial compensable schedular rating for hearing loss is denied. New and material evidence having been received, the claim of entitlement to service connection for a right wrist disability is reopened. Service connection for a dental disability for VA outpatient dental treatment purposes is granted. subject to the laws and regulations governing the payment of monetary benefits. REMAND Development of the Veteran's alleged PTSD stressors has not been completed. The Veteran has alleged three stressors: 1) a suicide or attempted suicide at Clark Air Base in the Philippines between July 1969 and February 1970, 2) a fatal accident involving an armored personnel carrier at U-Tapao Royal Thai Air Force Base between August 1971 and December 1971, and 3) the detonation by sabotage of a B-52 bomber on a parking ramp at U-Tapao between October 1971 and December 1971. In November 2007, the Joint Services Records Research Center (JSRRC) responded that there was no documentation of a B-52 exploding on a parking ramp at U-Tapao during the time period the Veteran provided. With regard to the other two alleged stressors, in December 2007, the AOJ made a formal finding that there was insufficient information to submit a request to the U. S. Army and Joint Services Records Research Center (JSRRC). On remand, the AOJ should submit a request to the JSRRC for the Veteran's stressors as outlined in his March 2007 and April 2008 statements, as well as his May 2017 testimony. The AOJ must make sequential requests if the Veteran provided a time period greater than two months. See Gagne v. McDonald, 27 Vet. App. 397 (2015). The Veteran was most recently afforded a VA examination of his right wrist in February 2008. The February 2008 examiner's rationale for an opinion that the Veteran's current right wrist disability is unrelated to a right wrist injury during his active duty service was that the Veteran's wrists showed symmetrical symptoms but service treatment records did not document a left wrist injury. In reaching this opinion, the examiner did not discuss a June 2005 VA examination that found asymmetrical wrist symptoms. A remand for a new examination is therefore warranted. On remand, the examiner should also discuss the Veteran's report of continuity of symptoms. Compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (2017). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for compensation purposes, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 4.150 (2017). As stated above, the Veteran has now been granted service connection for a dental disability for the purpose of outpatient dental treatment. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's service treatment records note extensive dental treatment, but there has been no VA examination to determine the nature of the Veteran's current dental disability and the Board cannot interpret the service treatment records to determine whether the Veteran's in-service dental conditions met the criteria described above. For these reasons, a VA examination is necessary. VA received an NOD with the RO's September 2014 rating decision regarding service connection for sleep apnea in September 2014. VA also received an NOD with the RO's October 2014 rating decision regarding service connection for a kidney disability in November 2014. Despite this, the AOJ has yet to issue a Statement of the Case (SOC) with regard to the issues of service connection for a kidney disability and sleep apnea. A remand is therefore necessary. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Submit a request to the JSRRC to attempt to verify the Veteran's two remaining stressors as outlined in his March 2007 and April 2008 statements in support of his claim for service connection for a psychiatric disability, as well as his May 2017 testimony to the Board. If multiple requests are needed to cover the entire period for the Veteran's reported stressors, submit multiple requests. Any negative responses must be documented. The remaining reported stressors are as follows: a. Being on the scene of the suicide or attempted suicide of a fellow airman at Clark Air Base in the Philippines between July 1969 and February 1970. b. Witnessing a fatal accident involving an armored personnel carrier at U-Tapao Royal Thai Air Force Base between August 1971 and December 1971. 2. Schedule the Veteran for an examination with an appropriate clinician for his right wrist disability, including degenerative joint disease and tendonitis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right wrist disability began during active service or is related to an incident of service. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: a. The June 2005 VA examination report, showing asymmetrical symptoms in the Veteran's wrists, b. The December 2005 private examiner's opinion that it is more likely than not that the Veteran's current wrist arthritis is a direct result of injury during military service, c. The Veteran's May 2017 testimony regarding continuity of symptoms. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Schedule the Veteran for an examination with an appropriate clinician for his dental disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide opinions as to the following: a. Which of the Veteran's teeth are missing? b. For each missing tooth, was it lost during the Veteran's active duty service? c. For each tooth lost during the Veteran's active duty service, is it at least as likely as not (50 percent or greater probability) that its loss was due to bone loss of the maxilla or mandible? d. Was any bone loss during the Veteran's active duty service the result of trauma or disease such as osteomyelitis? The rationale for any opinions expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. The AOJ must issue a Statement of the Case (SOC) addressing the claims of entitlement to service connection for a kidney disability and sleep apnea. The Veteran is hereby notified that, following the receipt of the SOC concerning these issues, he must file a timely substantive appeal if he desires appellate review by the Board. If, and only if, the Veteran files a timely substantive appeal, the AOJ should return these issues to the Board for appellate review. 5. Readjudicate the claims for a right wrist disability, a psychiatric disability, and a dental disability for compensation purposes. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs