Citation Nr: 18141708 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-42 600A DATE: October 11, 2018 ORDER As new and material evidence has been received, the Veteran’s claim for entitlement to service connection for a left eye disability is reopened. Entitlement to service connection for hearing loss in the Veteran’s left ear is denied. Entitlement to service connection for hearing loss in the Veteran’s right ear is granted. Entitlement to an initial disability rating exceeding 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a left eye disability is remanded.   FINDINGS OF FACT 1. A September 2004 rating decision denied entitlement to service connection for vision problems of the left eye. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since September 2004, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left eye disability. Such evidence includes May 2015 treatment notes from P.L.K, M.D., which indicate that the Veteran’s current left eye disability may be related to a history of eye trauma during service and secondary glaucoma. 3. The preponderance of the evidence is against a finding that the Veteran has a current hearing loss disability of the left ear. 4. The evidence shows that the Veteran’s hearing loss disability in his right ear is related to noise exposure during his military service. 5. The Veteran’s current disability rating of 10 percent for tinnitus is the highest schedular disability rating for tinnitus. CONCLUSIONS OF LAW 1. The September 2004 rating decision, which denied the Veteran’s claim of entitlement to service connection for vision problems of the left eye is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the September 2004 rating decision is new and material, and the claim of entitlement to service connection for a left eye disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for hearing loss in the Veteran’s left ear are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 4. The criteria for entitlement to service connection for hearing loss in the Veteran’s right ear have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 5. The criteria for entitlement to an initial disability rating exceeding 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.87 (DC 6260) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to February 1982. This appeal comes to the Board of Veterans’ Appeals (Board) from December 2013 and March 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist in regard to the Veteran’s claims for (1) entitlement to service connection for hearing loss in the left ear and (2) entitlement to an initial disability rating exceeding 10 percent for tinnitus. 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). Legal Criteria: Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. For the purposes 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 (2017). The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for a hearing loss disability. See Hensley v. Brown, 5 Vet. App. at 159 (1993). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for bilateral hearing loss The Veteran was afforded a VA examination of his hearing loss and tinnitus in December 2015. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. However, on the authorized audiological evaluation pure tone thresholds (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 55 50 LEFT 15 15 20 20 35 The Board finds this evidence shows the Veteran has a current hearing loss disability in his right ear as the auditory thresholds in the frequencies of 2000, 3000, and 4000 Hertz is 40 decibels or greater. In regard to the left ear, the Board finds the evidence of record does not support findings that (1) auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, (2) auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or (3) recognition scores using the Maryland CNC Test are less than 94 percent. Ultimately the Board affords the December 2015 hearing test great probative value as it was conducted by a competent examiner using criteria in accordance with applicable law. Furthermore, the Board finds no compelling evidence that the Veteran’s hearing loss in the left ear is substantially more limited than assessed at the time of the prior examination. Neither the Veteran nor his representative have cited evidence in support of such a finding on appeal. In regard to the Veteran’s current right ear hearing loss disability, the December 2015 VA examiner provided a negative nexus opinion. Although noting the Veteran’s complaints about hearing loss since service, the examiner opined documentation of hearing within normal limits at induction, documentation of hearing within normal limits at separation, and the lack of documentation of an OSHA-defined STS during military service indicate that it is not at least as likely as not that veteran’s current hearing loss is related to his military service. However, while the VA examiner indicated that the test results were “normal” and that thresholds shifts were within normal variability, the Board notes the examiner did not discuss the asymmetry between thresholds shifts. Specifically, while the separation examination shows several positive threshold shifts in the Veteran’s right ear in comparison to his entrance examination scores, scores for his left ear do not show such shifts. Additionally, in contrast to the opinion on hearing loss, the VA examiner provided a positive nexus opinion regarding the Veteran’s claimed disability of tinnitus based on the Veteran’s reports of noise exposure in-service followed by relevant symptoms Ultimately, the Board affords more weight to the Veteran’s reports of hearing loss and associated tinnitus following noise-exposure during service. The Veteran’s service records support the Veteran’s contention that he was exposed to loud noises during service, and the VA examiner linked noise exposure to the Veteran’s tinnitus. See, e.g., Veteran’s Certificate of Release or Discharge (indicating he served as an Aviation Machinists Mate). The Board finds the Veteran’s reports of worsening, asymmetrical hearing loss following such exposure to be consistent with the asymmetrical threshold shifts recorded in the Veteran’s hearing tests during his military service. Affording the Veteran the benefit of the doubt, entitlement to service connection for hearing loss in the right ear is granted, but entitlement to service connection for hearing loss in the left hear is denied as there is no compelling evidence of a current disability (as defined by 38 C.F.R. § 3.385). 2. Entitlement to an initial disability rating exceeding 10 percent for tinnitus Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2) (2015); 68 Fed. Reg. 25822 (June 2003). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). This does not amount to a liberalizing change, but rather a clarification of existing law. In the case currently on appeal, the RO assigned the Veteran a 10 percent rating for his service-connected tinnitus. The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003, amendment to the rating code. Thus, a 10 percent rating is the maximum rating assignable for the Veteran’s tinnitus. An increased schedular rating or assignment of a compensable evaluation for each ear is not available. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND On appeal, VA received additional VA treatment records relating to the Veteran’s claimed eye disability, which have not been reviewed in the first instance by the Agency of Original Jurisdiction (AOJ). In a July 2018 Appellant’s Brief, the Veteran’s representative requested that this matter be remanded in order to provide the Veteran with a current, adequate examination of his claimed left eye disability. The Board notes that while the record contains a negative nexus opinion on the Veteran’s left eye disability from November 2013, the opinion was rendered by a physician’s assistant and not a licensed optometrist or ophthalmologist. See 38 C.F.R. § 4.75(b). Additionally, Board finds that the opinion is inadequate because it did not consider the totality of the relevant evidence currently of record including May 2015 treatment notes from P.L.K, M.D. and later VA treatment records, which indicate that the Veteran’s current left eye disability may be related to a history of eye trauma during service and secondary glaucoma. On remand, the AOJ should provide the Veteran an appropriate VA eye examination by a licensed optometrist or ophthalmologist. The AOJ should ensure that the examiner’s opinion is based on a review of all relevant evidence of record before readjudicating the claim. The matter is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified, relevant outstanding records with the Veteran’s claims file, the AOJ should afford the Veteran an examination of his claimed left eye disability with a licensed optometrist or ophthalmologist. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner follows these directives: (a) The VA examiner should identify all current disabilities associated with the Veteran’s left eye. (b) For each current disability identified, the examiner should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include reports of a laceration of the Veteran’s left eyebrow in his service treatment records and subsequent scarring. The examiner should explain why or why not. The examiner should consider relevant treatment notes from P.L.K, M.D. and later VA treatment records, which indicate that the Veteran’s current left eye disability may be related to a history of eye trauma and secondary glaucoma. 3. If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel