Citation Nr: 1805758 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-14 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome. 2. Entitlement to a compensable rating for bilateral hearing loss prior to January 28, 2014 and to a rating in excess of 10 percent disabling for bilateral hearing loss as of January 28, 2014. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1973. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision which declined to reopen a previously denied claim for service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome and denied a compensable rating for bilateral hearing loss. During the pendency of the appeal the RO granted a staged 10 percent rating for the hearing loss effective January 28, 2014. The Board has characterized this issue to reflect the staged increase. The Board further notes that the RO's March 2014 statement of the case reopened and continued to deny the Veteran's service connection claim for his eye disorder. Regardless of this decision to reopen made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. Jackson v. Principi, 265 F. 3d 1366, 1370-71 (Fed. Cir. 2001). The Board is cognizant of the decision in Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (stating that VA must consider whether a TDIU is warranted whenever a pro se claimant seeks a higher disability rating and submits "cogent evidence of unemployability," regardless of whether the claimant specifically requests a TDIU). However a TDIU claim has been adjudicated by an August 2013 rating which the Veteran filed a notice of disagreement with in April 2014; a statement of the case was issued addressing this in March 2014. The Veteran did not perfect this appeal and this matter is not before the Board as it has not been re-raised. FINDINGS OF FACT 1. In June 2006, the RO denied the Veteran's claim of service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome. The Veteran did not file a timely notice of disagreement, and no new and material evidence was received within a year of the rating decision's issuance. 2. Certain evidence received since the June 2006 decision although not cumulative nor redundant of the evidence of record at the time of the June 2006 denial, by itself or in conjunction with the evidence previously assembled, fails to relate to an unestablished fact necessary to substantiate the claim of service connection. 3. The weight of the competent medical evidence shows that prior to January 28, 2014, the service-connected right ear hearing loss is manifested by level II hearing loss and that the service-connected left ear hearing loss is manifested by level III hearing loss. 4. The weight of the competent medical evidence shows that the service-connected right ear hearing loss is manifested by level II hearing loss and that the service-connected left ear hearing loss is manifested by level V hearing loss. CONCLUSIONS OF LAW 1. The June 2006 RO rating decision, which denied the Veteran's claim of service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome is final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156(b), 20.1103(2012). 2. Evidence received since the November 2006 RO rating decision although new, is not material; accordingly, the claim of service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for an increased disability rating in excess of the currently assigned zero percent rating prior to January 28, 2014 and in excess of 10 percent as of January 28, 2014, for the Veteran's service-connected right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5017 (2012); 38 C.F.R. §§ 3.321, 3.383, 4.1, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veteran has not raised any issues 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 duty to assist argument). II. New and Material Evidence The Veteran is attempting to reopen a claim for entitlement to service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome. Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. A previously disallowed claim may be reopened on the basis of new and material evidence. 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 it must raise a reasonable possibility of substantiating the claim. Id. The regulation "must be read as creating a low threshold," and "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Id. Instead, it is intended to guide VA adjudicators in "determining whether submitted evidence meets the new and material requirements." Id. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. Service connection was previously denied for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome in a June 2006 rating decision. This rating decision conceded that the service treatment records showed injury to his face in October 1972, with a May 2006 VA examination finding that current visual problems from Meibomian gland dysfunction with dry eye syndrome is related to age and acne and not exacerbated by facial injury. His vision was also noted to be normal on separation examination. The RO was unable to grant service connection for an eye disorder because the evidence did not show it began during nor was caused by service. Notice of this decision, with appellate rights, was sent to the Veteran later in June 2006. The Veteran did not file a notice of disagreement with this decision after receiving notice of it with appellate rights. Additionally, no new and material evidence was received. As such, the June 2006 rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). Evidence previously before the RO in June 2006 included STRs that showed the Veteran sustained a flash burn of his face when an immersion heater blew up in his face. No mention of any eye injuries was made. His April 1973 separation examination was negative for eye issues other than a history of wearing glasses, with 20/20 vision recorded bilaterally. See 31 pg. STRs received 8/22/73 at pg. 4, 13, 23. Post service evidence includes an August 1973 VA examination which included complaints of his eyes burning, with examination of the eyes "NSA" and no other significant eye findings. Also before the RO in June 2006 included the Veteran's March 2006 statement in support of claim describing his eyes being injured and treated after the heater explosion. Medical records received by the RO included a May 26, 2006 which diagnosed mild Meibomian gland dysfunction with dry eye syndrome, but with findings of no cicatricial scarring and no ectripia. He was assessed with hyperopia correctable to 20/20 bilaterally. See 27 pg. recs received 5/25/06 at pg. 14. Other medical records included reference to scanned ophthalmology documents scanned in January 2005 and February 2006 and a January 2006 general medical record showing no significant findings for the eyes. See 7 pg. recs received 5/17/06 pg. 1, 3, 6. A June 2006 VA eye examination reviewed by the RO later the same month, contained a copy of the May 26, 2006 treatment record, and examination findings including mild eye watering and crusting and bilateral vison correctable to 20/20. The impression was refractive error, mild Meibomian gland dysfunction with dry eye syndrome and clear corneas. He was diagnosed with hypermetropia and presbyopia corrected to 20/20 bilaterally, with an opinion that this eye disorder was not exacerbated by facial injury in 1972. Also diagnosed was Meibomian gland dysfunction with dry eye syndrome determined to be related to age and acne not exacerbated by facial injury. Evidence received after June 2006 includes a December 2009 statement in support of claim where the Veteran reported loss of or diminished capacity of eyesight alleged to be service connected. Medical evidence received after June 2006 included evidence that was either duplicates of records before the RO in June 2006. Most of the non-duplicative medical evidence pertained to other medical problems besides his eye problems and were otherwise silent for eye problems including in problem lists. The pertinent nonduplicative evidence includes a December 2004 VA primary care note worsening over the past few years but he hadn't seen an eye doctor for over 5 years and he had glasses bought second hand. Also in November 2016 he reported having a service connected eye injury with an eye examination and new glasses. See 332 pg. CAPRI (LCM) docs, received 3/5/14 at pg. 15, 318. The report of a January 2014 VA eye examination diagnosed the following non-congenital/developmental disorders of incipient cataract, peripheral retirioschisis, anisocoria. His right eye uncorrected vision was 20/70 uncorrected distance and 20/40 or better uncorrected near for both eyes. Corrected vision was 20/40 or better for distance and near for both eyes. No significant difference in visual acuities for corrected and uncorrected was noted. No evidence of any pupillary defect was shown or of other visual issues such as astigmatism or diplopia. No visual field deficits were noted. No other significant findings were shown on tonometry, slit lamp and external eye exam. Lens abnormalities were noted specifically incipient cataracts bilaterally. Fundus examination was also abnormal showing peripheral retinoschisis bilaterally. Eye disorders found included preoperative cataracts in both eyes, and a decrease in visual acuity or other visual impairment was attributed to the mild cataract. Other eye disorders included peripheral retinoschisis in both eyes. There was no evidence of scarring and disfigurement due to any eye disorder. Following examination the January 2014 VA examiner's opinion stated that it is less likely than not that his vision complaints are related to the flash burn injury in service. At this examination there was no evidence of any abnormality related to a facial flash burn injury. The Board finds that the evidence received since June 2006 is new in that it shows worsening eye symptoms of visual issues and new diagnoses of mild cataracts and peripheral retinoschisis. It is however not material as it fails to relate to an unestablished fact required to show entitlement to service connection, specifically none of the additional evidence suggests a possible link between the eye symptoms and service, including the heater explosion. To the contrary the January 2014 VA examiner who diagnosed these disorders of mild cataracts and peripheral retinoschisis also gave an unfavorable opinion finding that there was no eye disability related to his in-service flash burn incident. In sum, service connection for a an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome was previously denied based in part on a determination that the evidence did not show it began during nor was caused by service to include the heater explosion. The Veteran has not presented new and material evidence addressing that determination which relates to an unestablished fact required to show entitlement to service connection. Under these circumstances, the Board must conclude that new and material evidence has not been received and the claim for service connection is not reopened. III. Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In general, 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). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. See 38 C.F.R. § 4.85 (2017). For exceptional hearing loss, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or 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. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(b) (2017). VA treatment records disclose that over the course of this appeal the Veteran had issues with hearing loss with hearing aids used and serviced by the VA when repairs were needed. This is shown in records from March 2010, April 2010, July 2010; February 2011, June 2011, September 2011, May 2012, March 2013, August 2013, April 2016, June 2016, November 2016, and December 2016. See 166 pg. CAPRI at pg. 6, 15, 17, 26, 27, 30, 31, 35, 36, 83, 86, 158; see also 332 pg. CAPRI at pg. 27, 29, 32, 44, 50, 57, 58, 91. He was noted in May 2011 to talk loudly due to impaired hearing with hearing aids said not to be always effective. In a June 2011 audiology report he was noted to have to increase his volume on his hearing aids and his hearing loss was mild sloping to profound from 500 to 1000 Hertz bilaterally. See 332 pg. CAPRI at pg. 91, 122, 261. The report of a February 2010 VA audiological examination showed a history of worsening hearing since his last evaluation in 2006. Effects of the condition on occupational functioning and daily activities included the following. He indicated that he must increase the volume of his hearing, aids in order to hear, which causes feedback. He received complaints from family regarding his loud speaking volume and loud TV volume. He relied heavily on visual cues and his hearing aids during communication. He wore VA issued ITE hearing aids from 2005, from which he reported overall good subjective benefit. On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 80 80 80 LEFT 45 50 65 75 75 The average decibel loss was 71.25 in the right ear and 66.25 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The audiologic findings did not indicate the presence of an ear or hearing problem that warrants medical follow-up or a condition which, if treated, might change hearing thresholds. The report of a January 2014 VA examination disclosed the following. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 80 80 80 LEFT 45 55 70 70 75 The average decibel loss was 72.5 percent in the right ear and 67.5 percent in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. The functional impacts on his ordinary conditions of daily life including work, included difficulty hearing in noise, groups and when not facing the speaker. Given his degree of hearing loss with excellent speech recognition it was this examiner's opinion that his hearing loss did not render him unemployable. Having reviewed the evidence which is set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the bilateral hearing loss prior to January 28, 2014 and to a rating in excess of 10 percent disabling for bilateral hearing loss as of January 28, 2014 Prior to January 28, 2014, the right ear hearing loss is shown to warrant the assignment of category designation of II and the left ear hearing loss is shown to warrant the assignment of category designation of III upon the February 2010 VA examination based upon a combination of the percent of speech discrimination and the puretone threshold average shown in these examinations. Entering the category designations of II in the right ear and III in the left ear into Table VII, a disability percentage evaluation of zero percent, or noncompensable, is for assignment under Diagnostic Code 6100 for the left ear hearing loss impairment. The Board further notes that this February 2010 VA examination does not reveal the hearing loss to meet the VA criteria for exceptional hearing loss. As of January 28, 2014, the left ear now is shown to meet the exceptional level of hearing loss (§ 4.86(a)) thus warranting an assignment of category designation of V under Table VIa, which results in the higher (more favorable) numeral based on exceptional hearing loss. The right ear is not shown to meet the criteria for exceptional hearing loss and is shown to warrant the assignment of category designation of II under Table VI. Entering the category designations of II in the right ear and V in the left ear into Table VII, a disability percentage evaluation of 10 percent, is for assignment under Diagnostic Code 6100 for the left ear hearing loss impairment. The Board has considered the Veteran's statements that he has difficulty hearing in noisy groups and when he is not facing the speaker. Additionally, the Veteran has noted feedback from his hearing aids, and complaints from family regarding his loud speaking volume and loud television volume. See VA 2010 and 2014 VA examinations. He is competent to report these symptoms, and the Board also finds him credible as the statements on this point are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. Additionally, the rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366, 368-69 (2017) (holding that "the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"-which "are precisely the effects that VA's audiometric tests are designed to measure"). The Veteran's service-connected hearing loss is listed in VA's schedule for rating disabilities; therefore, consideration of other diagnostic codes is not necessary. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). His hearing loss presented with varying levels of symptoms such that staged ratings have been assigned, as appropriate. See Fenderson, 12 Vet. App. at 126-127. In sum the Board finds that the preponderance of the evidence is against a compensable rating for the service-connected bilateral hearing loss prior to January 28, 2014 and in excess of 10 percent disabling under the schedular criteria. ORDER New and material evidence has not been received to reopen a claim of service connection for an eye disorder classified as Meibomian gland dysfunction with dry eye syndrome, the appeal is denied. A compensable rating for service-connected bilateral hearing loss is denied prior to January 28, 2014. A rating in excess of 10 percent disabling for service-connected bilateral hearing loss is denied as of January 28, 2014. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs