Citation Nr: 18141329 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 10-16 534 DATE: October 10, 2018 ORDER The petition to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss is denied. The petition to reopen a previously denied claim of entitlement to service connection for tinnitus is denied. Entitlement to an evaluation in excess of 30 percent for bronchitis is denied. FINDINGS OF FACT 1. In a February 2004 rating decision, the RO denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus, and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the February 2004 decision, and it became final. 2. At its most severe, the Veteran’s bronchitis was manifested by FVC of no less than 75 percent, FEV-1 of no less than 74 percent, and FEV-1/FVC of no less than 70 percent. CONCLUSIONS OF LAW 1. The February 2004 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The February 2004 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. As new and material evidence submitted since the February 2004 denial has not been received, the criteria for reopening the claim for service connection for bilateral hearing loss are not met. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. As new and material evidence submitted since the February 2004 denial has not been received, the criteria for reopening the claim for service connection for tinnitus are not met. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for a rating more than 30 percent for bronchitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.96, 4.97, Diagnostic Code 6600. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1948 to March 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO). In January 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. These matters were previously remanded by the Board in March 2013. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Petition to Reopen Previously Denied Claims A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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 can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The petition to reopen previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus In a February 2004 rating decision, the RO denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. The evidence considered included a January 2004 VA examination. The VA examination report indicates the Veteran reported his tinnitus began within the previous five years, and the earliest finding of hearing loss was in 1999. The examiner opined that the Veteran’s hearing loss and tinnitus were not related to his military service. The Veteran was notified of the decision by a February 2004 letter. He did not initiate an appeal or submit new and material evidence within one year of the rating decision and it became final. In December 2007, the Veteran filed an informal claim of service connection for hearing loss and tinnitus. A letter sent in March 2008 notified the Veteran of the type of evidence required to reopen his claims. In an October 2008 rating decision, the RO denied reopening the Veteran’s service connection claims for hearing loss and tinnitus. The RO’s decision was based on the negative opinion from the January 2004 VA examiner, and a finding that newly submitted VA treatment records were not material. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant’s current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Evidence received since the final February 2004 rating decision consists of VA examinations relating to medical conditions other than the Veteran’s hearing loss and tinnitus, hearing testimony, as well as VA treatment records. At the hearing, the Veteran reiterated his previously stated contention that his hearing loss and tinnitus began during service. The VA treatment notes indicate the Veteran had documented hearing loss and required hearing aids. While the evidence associated with the claims file since February 2004 is new, it is not material in substantiating the Veteran’s claim. None of the evidence supports the contention that the Veteran’s current hearing loss and tinnitus are associated with his military service. New and material evidence has not been presented to reopen the Veteran’s previously denied claims of service connection for bilateral hearing loss and tinnitus. The appeal is therefore denied. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 2. Entitlement to an evaluation more than 30 percent for bronchitis Chronic bronchitis is evaluated under Diagnostic Code 6600. Under this Diagnostic Code, a 60 percent rating is warranted for FEV-1 of 40 to 55 percent of predicted value, FEV-1/FVC of 40 to 55 percent, DLCO of 40 to 55 percent predicted, or if maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 of less than 40 percent of predicted value, or; FEV-1/FVC of less than 40 percent, or; DLCO of less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. See 38 C.F.R. § 4.97. VA is required to rate a disability under DC 6600 using pulmonary function tests (PFTs) except in certain circumstances, such as when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. 38 C.F.R. § 4.96(d)(1). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). Service connection is in effect for bronchitis, effective September 21, 1957 with an initial noncompensable rating. Subsequently, bronchitis was rated as 10 percent disabling from July 16, 1998, and 30 percent effective July 11, 2016. In March 2013, the Board remanded this issue for additional development and to obtain a VA examination. The Veteran was afforded a VA examination in July 2016. The RO issued a rating decision in July 2018 that increased the disability rating from 10 percent to 30 percent based on the findings in the July 2016 VA examination report. The claim remains in appellate status, as the Veteran was not awarded the maximum benefit provided by the rating schedule, and did not advise that he was satisfied with the July 2018 rating decision. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A July 2016 VA examination indicates the Veteran was diagnosed with bronchitis, that did not require the use of corticosteroid or inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran recorded the following PFT results during the examination: FVC pre-bronchodilator of 75 percent; FEV-1 pre-bronchodilator of 74 percent; and FEV-1/FVC ratio of 70 percent. The examiner stated post-bronchodilator testing was not completed because pre-bronchodilator results were normal. The examiner also stated the FEV-1/FVC test result most accurately reflects the Veteran’s level of disability. Based on the PFT results of the July 2016 VA examination, the Veteran was assigned a 30 percent disability rating for bronchitis, due to FEV-1/FVC results being 70 percent. The Board finds a rating more than 30 percent is not warranted. The claims file does not contain any medical records dated after the July 2016 VA examination. Medical records dated prior to July 2016 show PFT readings that would warrant a rating lower than 30 percent, which support the initial noncompensable rating, and the increase to 10 percent based on a September 1998 VA examination. The medical records do not reflect PFT results that would warrant a disability rating more than 30 percent for bronchitis. Thus, the claim for entitlement to an increased rating for bronchitis must be denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel