Citation Nr: 18143565 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 18-18 459 DATE: October 19, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is denied. REMANDED The issue of a rating in excess of 10 percent prior to July 20, 2017, and in excess of 20 percent on and after July 20, 2017, for the Veteran’s right (major) shoulder impingement syndrome with rotator cuff tendonitis and acromioclavicular and glenohumeral joint osteoarthritis is remanded. The issue of a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2016 rating decision denied service connection for bilateral hearing loss. The Veteran did not submit a timely notice of disagreement and the February 2016 rating decision is final. 2. The additional evidence received since the February 2016 rating decision is new and material. 3. Bilateral hearing loss was not manifested during active service or for many years after service separation. The diagnosed bilateral sensorineural hearing loss has not been shown to have originated during active service. CONCLUSIONS OF LAW 1. The February 2016 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for bilateral hearing loss has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1953 to August 1956 and from January 1957 to January 1961. A July 2018 Agency of Original Jurisdiction rating decision denied entitlement to a TDIU. When entitlement to a TDIU is raised during the process of rating an underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to TDIU is part of this appeal. Application to Reopen A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error, or where a notice of disagreement or material evidence was received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2016); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). In February 2016, the Agency of Original Jurisdiction denied service connection for bilateral hearing loss “because there is no evidence that you currently have hearing loss for VA purposes.” The Veteran did not submit a notice of disagreement with that decision. The evidence considered by the Agency of Original Jurisdiction in reaching the February 2016 rating decision included service treatment records; service personnel records, Department of Veterans Affairs (VA) examination and clinical records and written statements from the Veteran. The service treatment records do not refer to bilateral hearing loss disability. The report of a December 2015 audiological examination conducted for VA states that the Veteran reported having been exposed to artillery related noise during active service. On the audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 30 LEFT 25 20 25 25 30 Speech audiometry revealed bilateral speech recognition ability of 96 percent. The Veteran was found to have normal bilateral hearing. New and material evidence pertaining to the issue of entitlement to service connection for bilateral hearing loss was not received by VA or constructively in its possession within one year of written notice to the Veteran of the February 2016 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156 (b). The additional evidence received since the February 2016 rating decision includes VA examination and treatment records and written statements from the Veteran. VA clinical documentation dated in July 2017 indicated that the Veteran presented a history of military noise exposure and was diagnosed with ‘significant bilateral sensorineural hearing loss” on audiometric examination. The Board of Veterans’ Appeals (Board) finds that the July 2017 VA clinical documentation is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. The documentation addresses the reason of the previous denial as it addresses the presence of bilateral hearing loss disability meeting the criteria under 38 C.F.R. § 3.385. As new and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service Connection for Bilateral Hearing Loss The Veteran asserts that service connection for a bilateral hearing loss disability is warranted as the claimed disability was manifested secondary to his in service noise exposure. Service connection for impaired hearing for VA purposes shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The service treatment records do not refer to bilateral hearing loss. The service records reflect that the Veteran’s military occupational specialty as an AW crewman and an auto operator. The report of a December 2015 audiological examination conducted for VA states that the Veteran exhibited no bilateral hearing loss disability for VA purposes The report of an October 2017 audiological examination conducted for VA, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 45 50 LEFT 40 40 40 40 60 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 84 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the bilateral sensorineural hearing loss was “less than likely (less than 50 percent probability) caused by or a result of an event in military service.” The Veteran asserts that service connection for bilateral hearing loss is warranted secondary to his conceded in service noise exposure. Bilateral hearing loss meeting the criteria under 38 C.F.R. § 3.385 was not shown during active service or for decades thereafter. Sensorineural hearing loss was first diagnosed in 2017, some 56 years after service separation. No medical competent medical professional has attributed the onset of the disability to any incident of active service including the Veteran’s conceded in service noise exposure. Indeed, the claim is supported solely by the Veteran’s lay statements. To the extent that the Veteran asserts that his current bilateral sensorineural hearing loss is related to his in-service noise exposure, the Board finds that the Veteran’s lay statements do not constitute competent evidence in this case given that sensorineural hearing loss was not shown in service; there were no chronic symptoms of hearing loss disability in service or for years after service; sensorineural hearing loss was first diagnosed decades after service; and a medical professional has expressly negated a relationship between such sensorineural hearing loss and the Veteran’s in-service noise exposure. The Veteran has not offered any medical qualifications. The Veteran is not competent to offer an opinion regarding the etiology of his bilateral hearing loss under the facts in this case. The onset of sensorineural hearing loss, in the context of no chronic in service symptoms or continuous post-service symptoms, is not amenable to observation by a lay person. The question of the etiology of such a disability involves the ruling in or out of multiple potential etiologies, so is too complex to be addressed by a layperson. The relationship between sensorineural hearing loss and its causes is the subject of extensive research by medical professionals as it would require specific clinical testing and correlation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Therefore, the Board finds that service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. The issue of a rating in excess of 10 percent prior to July 20, 2017, and in excess of 20 percent on and after July 20, 2017, for the Veteran’s right (major) shoulder impingement syndrome with rotator cuff tendonitis and acromioclavicular and glenohumeral joint osteoarthritis is remanded. The report of a May 2018 shoulder examination conducted for VA conveys that the Veteran was found to exhibit right shoulder limitation of motion with pain on flexion, abduction, external rotation, and internal rotation which “causes functional loss.” The examiner did not indicate the degree at which the right shoulder pain and associated functional loss began. An August 2018 VA treatment record states that the Veteran complained of “intolerable pain in the right shoulder.” The VA medical personnel did not provide any specific findings as to the right shoulder. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the cited deficiencies in the May 2018 examination report and the documented recent increase in right shoulder pain, the Board finds that further VA shoulder evaluation is necessary in order to adequately resolve the issues raised by the instant appeal. 2. The issue of a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. As the claim for TDIU is inextricably intertwined with the other claim being remanded, the issue of entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated the service connected right shoulder disability. Make two requests for any authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records associated with treatment after August 2018. 3. Schedule the Veteran for a VA shoulder examination in to assist in determining the current severity of the service-connected right shoulder disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide ranges of motion for passive and active motion, and for weight bearing and nonweight-bearing, of the right shoulder. The examiner should state whether there is any additional loss of right shoulder function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner should provide an opinion as to the impact of the right shoulder disabilities on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the right shoulder disability and the other service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel