Citation Nr: 18140888 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-01 534 DATE: October 9, 2018 ORDER The petition to reopen the claim of service connection for bilateral pes planus is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to a compensable evaluation for left ear hearing loss is denied. Entitlement to a disability rating in excess of 10 percent for fatty liver disease is denied. Entitlement to an effective date prior to September 17, 2013, for the award of service connection for left ear hearing loss is denied. Entitlement to an effective date prior to September 17, 2013, for the award of service connection for fatty liver disease is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for an impaired vision disability is remanded. FINDINGS OF FACT 1. Service connection for pes planus was previously denied in an unappealed March 2010 rating decision; evidence that was not previously before decision makers at that time and that raises a reasonable possibility of substantiating the claim has subsequently been received. 2. The evidence of record does not show that the Veteran has a hearing loss disability in his right ear. 3. Throughout the appeal period, the Veteran has had no worse than Level I hearing loss in his left ear, and has not demonstrated an exceptional pattern of hearing loss during the appeal period. 4. Throughout the appeal period, the Veteran’s fatty liver disease has manifested without symptoms. 5. The first communication from the Veteran seeking service connection for hearing loss was received on September 17, 2013; the evidence of record does not contain evidence of any other event warranting service connection prior to that date. 6. The first communication from the Veteran seeking service connection for fatty liver disease was received on September 17, 2013; the evidence of record does not contain evidence of any other event warranting service connection prior to that date. CONCLUSIONS OF LAW 1. The criteria for the petition to reopen the claim of service connection for bilateral pes planus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for entitlement to a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85. 4. The criteria for entitlement to a disability rating in excess of 10 percent for fatty liver disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7399-7345. 5. The criteria for entitlement to an effective date prior to September 17, 2013, for the award of service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for entitlement to an effective date prior to September 17, 2013, for the award of service connection for fatty liver disease have not been met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active service from July 1991 to October 1991, July 2002 to April 2003, October 2008 to October 2009, and from February 2010 to May 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. During the course of this appeal, the Veteran requested a hearing before the Board, but withdrew that request in August 2016. New and Material Evidence Previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already 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. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. The petition to reopen the claim of service connection for bilateral pes planus. The Veteran’s claim for entitlement to service connection for bilateral pes planus was previously denied in a March 2010 rating decision. The Veteran neither submitted new and material evidence nor a notice of disagreement (NOD) within a year of that decision; therefore, the December 2011 rating decision is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. New and material evidence regarding the Veteran’s pes planus condition has been received since the March 2010 decision. In particular, VA has received VA examinations from July 2014 and February 2016 that provide further information regarding the Veteran’s condition, and, along with further development, provides a reasonable possibility of substantiating the claim. Consequently, it is appropriate to reopen the claim for service connection for pes planus. To this extent only, the claim is granted. Service Connection 2. Entitlement to service connection for right ear hearing loss. Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). A hearing loss disability is defined by VA regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the Veteran’s exposure to loud noises that have damaged his hearing and a connection between the changes in the Veteran’s hearing and his service have been established. Nevertheless, service connection for a hearing loss disability in the Veteran’s right ear cannot be established by the evidence because the record does not show that his hearing loss in the right ear meets the definition of a hearing loss disability in VA regulations. Just prior to the beginning of the appeal period, the Veteran underwent an outside evaluation of his hearing in July 2013. The puretone thresholds were recorded as: Hertz 500 1000 2000 3000 4000 Average 1k-4k Decibels 5 10 10 20 30 18 These puretone thresholds do not meet the criteria for a hearing loss disability. Only one of the puretone thresholds is greater than or equal to 26 decibels and none of them are at least 40 decibels. 38 C.F.R. § 3.385. The Veteran’s hearing was tested on two occasions during the appeal period. In January 2014, testing of the Veteran’s right ear resulted in puretone thresholds as noted in the following table: Hertz 500 1000 2000 3000 4000 Average 1k-4k Decibels 15 10 10 25 20 16 This examination was not performed pursuant to a VA examination. Consequently, speech recognition scores were not included. However, the puretone thresholds found in this examination do not meet the criteria for a hearing loss disability because all of them are below 26 decibels. 38 C.F.R. § 3.385. The Veteran also received a VA examination in April 2014. The results were: Hertz 500 1000 2000 3000 4000 Average 1k-4k Decibels 10 0 5 15 20 10 Just as in the preceding test, the puretone thresholds do not meet the criteria for a hearing loss disability because all of them are below 26 decibels. 38 C.F.R. § 3.385. The Veteran also received a Maryland CNC speech recognition score of 100 percent. Consequently, the speech recognition score from this examination also does not meet the threshold of a hearing loss disability. Id. Notably, during the April 2014 VA examination, the examiner found that the Veteran had normal hearing in the right ear. Based on this evidence, the Board concludes that the Veteran does not have a hearing loss disability in his right ear and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In conclusion, despite the favorable opinion by the April 2014 VA examiner, who opined that the Veteran’s right ear hearing loss was at least as likely as not caused by or a result of his military service, it is not shown that he has a current disability for which service connection may be awarded. As explained above, a hearing loss disability is defined by VA regulation, and the evidence of record demonstrates that the Veteran’s right ear hearing loss does not meet that definition. Increased Rating Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). “Where 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a compensable evaluation for left ear hearing loss. Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, and under the circumstances presented by this case, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran’s pure tone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran’s speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average pure tone thresholds and speech discrimination scores are determined for each ear, the values of each ear individually are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran’s disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear is assigned a Roman Numeral designation of I. Id. As previously discussed, the Veteran’s right ear does not meet the minimum threshold regulatory criteria for a hearing loss disability under VA regulations. Consequently, his hearing impairment in his right ear is rated Level I. During the appeal period, only two examinations were conducted, and only one of those meets the criteria for an evaluation with testing of both puretone audiometric thresholds and Maryland CNC speech recognition scores, the April 2014 VA examination. At that examination, the Veteran’s left ear had puretone thresholds of: Hertz 1000 2000 3000 4000 Average Decibels 10 15 25 65 29 The Veteran’s Maryland CNC speech recognition score in his left ear was 100 percent. Placing these two results in Table VI provides a hearing loss level designated Level I. With both the right ear and left ear demonstrating hearing loss designated Level I, Table VII yields a non-compensable rating. 38 C.F.R. § 4.85, Table VI-VII. At his examination, the Veteran described the functional effects of his hearing loss as difficulty hearing from his left ear. Consequently, the Board finds that the mechanical application of rating criteria in the tables, that are based on the Veteran’s ability to hear noises and recognize words, adequately describe his disability. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Therefore, the Board finds that the evidence of record does not meet the criteria for a compensable rating for hearing loss in the left ear. 4. Entitlement to a disability rating in excess of 10 percent for fatty liver disease. The Veteran’s fatty liver disease is rated by analogy under the diagnostic code for chronic liver disease. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7399-7345. Under this diagnostic code, veterans receive a non-compensable rating when their conditions are nonsymptomatic. Id. Veterans receive a 10 percent rating when their condition causes intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks during the preceding 12 months. Id. Veterans receive a 20 percent disability rating where their condition causes daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the preceding 12 months. Id. Veterans receive a 40 percent rating when their condition causes daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the preceding 12 months. Id. Veterans receive a 60 percent rating when their condition results in daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of mal-nutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, but not occurring constantly. Id. Veterans receive a 100 percent disability rating where their condition causes near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. The July 2014 VA examination documents that the Veteran has fatty liver disease. As a result of this condition, the Veteran takes certain supplements, including niacin and fish oil. However, the VA examination does not document any symptoms related to this condition beyond laboratory findings in the form of elevated liver function tests (LFTs) and a CT scan that demonstrates considerable diffuse fatty infiltration of the liver. The Veteran’s treatment records document that he is monitored and takes the previously mentioned supplements for this condition, but do not contain any indication of symptoms related to this condition. Similarly, the Veteran’s written statement from April 2014 does not describe any symptoms that he has as a result of this condition. Based on this evidence, the Board finds that the Veteran’s condition is nonsymptomatic. Further, while the Veteran takes supplements of niacin and fish oil, the evidence does not reveal that these supplements are medication needed to control any symptoms. Therefore, because the Veteran’s condition has does not feature any of the criteria for the next higher 20 percent rating (or any of the higher ratings), the evidence of record does not meet the criteria for a rating in excess of 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7399-7345. Effective Date 5. Entitlement to an effective date prior to September 17, 2013 for the award of service connection for left ear hearing loss and for fatty liver disease. The Veteran seeks an earlier effective date for his awards of service connection for left ear hearing loss and fatty liver disease. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). Here, the Veteran first contacted VA seeking service connection for hearing loss and fatty liver disease with an application and supporting documents that he executed on September 13, 2013, and that was received by VA four days later on September 17, 2013. Thus, the general rule provides that the Veteran is entitled to an effective date for his award on September 17, 2013, the day his claim was received. Id. This is the effective date of the awards provided to the Veteran. This general rule has several exceptions. However, the record does not provide a basis for invoking any of these exceptions to the general rule in this case. Notably, neither the Veteran nor his attorney has made any affirmative arguments that they do. The extent of the Veteran’s activity seeking an earlier effective date for these awards is to check a box on his Notice of Disagreement (NOD) and substantive appeal to the Board. In the absence of evidence or argument establishing cause to depart from the general rule that the effective date of awards is the date of the receipt of the claim, the Board is bound to apply that regulation. Entitlement to an earlier effective date for the awards of service connection for left ear hearing loss and for fatty liver disease is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for pes planus because the July 2014 VA examiner’s opinion is unclear. The examiner’s opinion states that the Veteran’s bilateral pes planus has been aggravated beyond its natural progression but does not indicate if this aggravation was the result of the Veteran’s active service or provide a rationale linking it to the Veteran’s active service. A separate, February 2016 VA examination focusing on the Veteran’s service-connected gout noted the Veteran’s congenital pes planus was being compounded by an idiopathic peripheral neuropathy. It is not entirely clear from this report whether the idiopathic neuropathy is a sequalae of the aggravation of the Veteran’s pes planus or if it is an additional disability that the Veteran has developed due to his military service or unrelated to his military service and service-connected disabilities. An addendum opinion should clarify these questions. 2. Entitlement to service connection for an impaired vision disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for visual impairment because no VA examiner has opined whether the Veteran has a disability (other than a developmental error of refraction) despite the fact that December 2009 VA treatment records indicate that the Veteran had a retinal tuft. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s pes planus is at least as likely as not related to or aggravated beyond its natural progression by his service. The examiner should provide a complete rationale for this opinion, and should also explain the relationship, if any, the Veteran’s idiopathic peripheral neuropathy and the Veteran’s pes planus or active service, particularly if the idiopathic neuropathy is a sequalae of his pes planus condition or if the idiopathic neuropathy was developed in service and contributed to the aggravation of the Veteran’s pes planus condition. In the event that the requested opinion cannot be provided without an additional examination, the Veteran should be scheduled for an appropriate examination. (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any visual impairment disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s exposure to hot and dusty conditions, or an undiagnosed illness or medically unexplained chronic multi-symptom illness. The examiner’s attention in particular is drawn to the December 2009 VA optometry report documenting the Veteran’s retinal tuft. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel