Citation Nr: 18143920 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-14 609 DATE: October 23, 2018 ORDER As new and material evidence to reopen the claim of entitlement to service connection for an eye condition has been received, to this limited extent, the appeal as to this matter is granted. Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for an eye condition is remanded. FINDINGS OF FACT 1. In an April 2009 rating decision, the RO denied entitlement to service connection for an eye condition; although notified of the denial, the Veteran did not perfect an appeal, and no pertinent exception to finality applies. 2. Additional evidence associated with the claims file since the April 2009 rating decision is not cumulative and redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim for service connection for an eye disability, and raises a reasonable possibility of substantiating the claim. 3. Throughout the appeal period, audiometric testing revealed no worse than Level III hearing in the left ear an Level II hearing in the right ear. CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied entitlement to service connection for an eye condition is final. 38 U.S.C. § 7105(c) (West 1992) [West 2012]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009) [(2018)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an eye disorder has been received. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for a compensable rating for bilateral hearing loss have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.383, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to February 1967. This matter is on appeal from a June 2015 rating decision. 1. Whether new and material evidence has been received to reopen a claim of service connection for an eye condition The Veteran’s original claim for entitlement to service connection for an eye condition was denied in an April 2009 rating decision. At that time, the evidentiary record contained statements from the Veteran in which he attributed his eye disability to duties he performed as a mechanic during service, including having exhaust from vehicles blown in his face. The RO also considered the Veteran’s service treatment records, which do not contain any evidence of treatment for an eye condition during service, as well as post-service treatment records which did not contain evidence of an eye condition or a link between any claimed disability and military service. After considering this evidence, the RO denied the claim on the basis that there was no evidence showing an eye condition occurred in or was caused by his military service. The Veteran did not appeal the April 2009 rating decision and no other exception to finality applies, as he did not submit any relevant service records or any other evidence or communication which could be considered new and material evidence relevant to the eye claim during the one-year appeal period following the issuance of the decision. See 38 C.F.R. § 3.156 (b), (c). Accordingly, the April 2009 rating decision became final. 38 U.S.C. § 7105(c) (West 1992) [2012]; 38 C.F.R. § 20.1103 (2009) [2018]. In May 2015, the Veteran filed a claim seeking service connection for a bilateral eye disability. Because the Veteran is, again, seeking to establish service connection for an eye disability, new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection. See 38 U.S.C. § 5108, 38 C.F.R. § 3.156 (a). Relevant evidence received since the April 2009 rating decision includes VA treatment records which reflect that the Veteran has been diagnosed with senile cataracts, entropion of left lower eyelid status post repair, and bilateral ptosis. See e.g., July 2014 VA treatment record; January 2015 VA treatment record. The Veteran has also alleged that his current eye disabilities may be due to the welding and cutting torch he used during service, as well as secondary to the concussion he incurred during service. See April 2016 VA Form 9; September 2018 Informal Hearing Presentation. The VA treatment records and statements submitted in support of this claim are new in that they were not of record at the time of the final April 2009 rating decision. The VA treatment records and lay statements are also material because they relate to unestablished facts necessary to substantiate the Veteran’s claim and raise a reasonable possibility of substantiating his claim, as they establish the presence of a current eye condition and suggest that his current disability may be related to events or injuries that occurred during service. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (holding that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s full duty to assist). Under these circumstances, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for an eye disability is reopened. The merits of reopened claim are addressed in the Remand section of this decision. 2. Entitlement to a compensable rating for service-connected bilateral hearing loss The Veteran is seeking a compensable initial rating for his service-connected bilateral hearing loss. The criteria for rating hearing impairment utilize the results of controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA (in exceptional cases as described in 38 C.F.R. §4.86), and Table VII, as set out in the Rating Schedule. 38 C.F.R. §4.85. The competent, reliable, and probative evidence of record consists of a May 2015 VA audiological examination. In this regard, the Board notes that the Veteran’s attorney recently requested the Veteran be afforded a new VA examination because the last examination was conducted more than three years ago. However, neither the Veteran nor his representative has alleged that his hearing loss has worsened in severity since the May 2015 examination. Rather, they argue that his hearing loss is worse than currently evaluated. See September 2018 Informal Hearing Presentation. Therefore, the Board finds a new examination is not warranted in this case. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). The Board also notes that the VA treatment records associated with the claims file generally note the Veteran’s hearing impairment and use of bilateral hearing aids; however, the treatment records do not contain audiological examinations or other information relevant to the Veteran’s acuity during the appeal period. The Board acknowledges that the Veteran was afforded an audiogram in July 2013 in conjunction with a fitting for hearing aids. While the results of the audiogram are not reflected in the treatment record, the Board notes that the findings are not needed because, unlike audiograms conducted during compensation and pension examinations, hearing aid evaluations are not conducted to determine hearing acuity but, rather, to fit a hearing impairment for particular audiometric demands. Therefore, because the March 2015 VA examination contains an audiogram and word recognition scores, it is the only evidence of record that is directly responsive to the rating criteria used by VA to determine the appropriate rating for hearing loss. The results of the March 2015 examination indicate there was an average pure tone threshold in the Veteran’s left ear of 69 decibels, while the average pure tone threshold in the right ear was 55 decibels. The Veteran’s speech recognition was 84 percent in the left ear and 88 percent in the right ear. Evaluating these test scores using Table VI shows that the Veteran’s hearing acuity is at Level III in the right ear and Level II in the left ear, which results in a noncompensable (zero percent) disability rating under Table VII. The pure tone thresholds recorded during the March 2015 VA examination do not reflect exceptional hearing impairment in either ear, as pure tone thresholds at each of the four specified frequencies was not 55 decibels or more. Therefore, a compensable rating also is not warranted based upon an exceptional pattern of hearing loss under 38 C.F.R. § 4.86. As noted, the Veteran has not alleged that his hearing has worsened since the March 2015 VA examination, and the Board finds that the evidence of record is adequate for rating purposes. Indeed, the other medical evidence of record does not suggest that the Veteran’s bilateral hearing impairment has been more disabling than as noted above. Therefore, a staged rating is not warranted for the Veteran’s bilateral hearing disability. The Board has carefully considered the lay assertions as to the severity of his hearing loss, and in no way discounts his assertions regarding his hearing difficulty or that his bilateral hearing loss should be rated higher. However, the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the foregoing, the Board finds the most competent and probative evidence of record shows that, throughout the appeal period, the Veteran’s service-connected bilateral hearing loss is entitled to no higher than a zero percent disability rating, as reflected on Table VII of 38 C.F.R. § 4.85. Therefore, the preponderance of the evidence is against the grant of a compensable rating for the Veteran’s bilateral hearing loss at any point during the appeal period and the benefit-of-the-doubt doctrine is inapplicable. REASONS FOR REMAND 1. Entitlement to service connection for an eye condition is remanded. A VA examination and opinion are needed to determine the likelihood that the Veteran’s current eye disability was incurred during or as a result of his military service. See 38 C.F.R. § 3.159 (c)(4) (2018); Duenas v. Principi, 18 Vet. App. 512 (2004). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his current eye disabilities. The claims file should be provided to the examiner for review. The examiner should identify each eye disability that has been manifest or diagnosed since May 2015. As for each diagnosed disability, the examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was incurred during service or is otherwise related thereto. (Continued on the next page)   In answering the foregoing, the VA examiner is asked to consider all lay and medical evidence of record, including the Veteran’s assertions that his current disabilities were incurred as a result of his military duties as a mechanic or, in the alternative, the concussion he incurred in June 1965. A rationale should be provided for each opinion offered. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel