Citation Nr: 18145970 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-42 152 DATE: October 30, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for sinusitis, also claimed as allergic rhinitis, is granted. Service connection for sinus disability is denied. A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. An unappealed July 1989 rating decision denied service connection for sinus disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. A preponderance of the evidence is against finding that the Veteran has sinus disability, including sinusitis and rhinitis, due to a disease or injury in service. 3. During the appeal period, hearing loss disability was manifested at worst by an average pure tone decibel (dB) loss of 50 dB in the right ear and 44 dB in the left ear with 100 percent speech discrimination in both ears. CONCLUSIONS OF LAW 1. The July 1989 rating decision denying the claim for service connection for sinus disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The criteria for entitlement to service connection for chronic frontal sinusitis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from October 1964 to September 1966. It is noted that VA scheduled the Veteran for a hearing in these matters per his request. The Veteran failed to show at the scheduled hearing. He has neither reported good cause for his failure to report nor requested another hearing in this appeal. Therefore, the hearing request is withdrawn. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sinusitis, also claimed as allergic rhinitis. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran seeks to reopen a previously denied claim for entitlement to service connection for chronic frontal sinusitis. The Board concludes that a July 1989 rating decision denying the claim for service connection for sinus disorder is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. In July 1988, the Veteran filed an initial claim for entitlement to service connection for chronic frontal sinusitis. A July 1989 rating decision denied the claim. VA received no appeal of that decision or new and material evidence prior to expiration of the appeal period. In fact, the Veteran did not file a notice of disagreement based on that decision. Therefore, the July 1989 decision became final. In a February 2017 rating decision, the RO found the evidence submitted by the Veteran was not new and material and denied the claim. However, the Board must still adjudicate whether new and material evidence has been received to reopen the previously finally denied claim service connection for chronic frontal sinusitis. After the July 1989 rating decision, new evidence was received suggesting that the Veteran’s diagnosed chronic frontal sinusitis is related to service. According to an October 2007 statement from the Veteran’s doctor, Dr. Lugo, stated that the Veteran had a history of chronic sinusitis that was related to service and became progressively worse in service and since service. In addition, in a November 2007 statement in support of claim, the Veteran asserted that he had sinusitis during service, did not seek treatment in service, but sought treatment immediately after service. Because this new evidence is presumed, the new evidence is deemed material. Therefore, the Board finds that new and material evidence has been received in this matter. Accordingly, the petition to reopen is granted (to this extent only). 2. Entitlement to service connection for sinus disability. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Veteran contends that he has a sinus disorder, which was incurred and worsened in service. The Board finds that the preponderance of the evidence is against service connection for sinus disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service treatment records (STRs) reflect no complaints or findings for abnormal sinus pathology to include sinusitis and rhinitis. Although the Veteran was injured by the detonation of an explosive device during combat, STRs reflect no injury to the sinuses as a result. An August 1966 service separation examination reflects normal clinical evaluation of sinuses. A January 1968 VA general examination reflects normal sinuses. Sinus problems are first documented in 1977, diagnosed as allergic rhinitis and treated with Actifed. An April 1988 VA treatment note reflects chronic sinusitis. In July 1988 correspondence, the Veteran theorized that his sinus disorder may be due to service-connected ear disorder. Subsequently dated VA treatment record reflect ongoing sinus disorder. Relevant hearing and ear treatment records reflect no indication that chronic sinus disorder, including sinusitis and allergic rhinitis, is related to hearing loss or ear disease/infection. The Board has considered the October 2007 statement from the Veteran’s private doctor, which indicates the Veteran has a sinus disorder and that “This chronic condition is also related and got worst [sic] during and after his military service.” See Medical Treatment Record – Non-Government Facility (January 2008). The Board finds that his medical opinion is wholly unsupported by a rationale and reflects no indication that the Veteran’s STRs or any other medical records were considered when formulating the opinion. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board find that the medical opinion has no probative value. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion). In a November 2007 statement in support of claim, the Veteran asserted that he had sinusitis during service, did not seek treatment in service, and, instead, sought treatment immediately after service. While the Veteran is competent to report his symptoms and dates of treatment, the Board finds that his statements have diminished probative value as compared to the normal clinical findings on service separation examination coupled with the many years intervening service and the first documented findings. Again, post service medical records show no complaints, treatment, or diagnoses of any sinus disorder until May 1977, eleven years after service. The Board assigns greater probative value to the normal service separation examination coupled with the many years intervening service and the first documented findings for sinus disorder. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to a compensable rating for bilateral hearing loss disability. The Veteran contends that he has hearing loss that warrants a compensable rating. The Board concludes that the preponderance of the evidence is against a compensable rating for bilateral hearing loss disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 . The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). On the authorized VA audiological examination in December 2016, the average pure tone decibel loss was 50 in the right ear and 44 in the left ear with 100 percent speech discrimination in both ears. Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left ear. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a zero percent (noncompensable) rating is warranted. 38 C.F.R § 4.85, DC 6100. Also, the pure tone thresholds of record do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable. Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone thresholds for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and thus, neither Table VI or Table VIa is applicable. 38 C.F.R. § 4.86(b). The Board has considered the effect of the Veteran's hearing loss on his ability to function in the work-place. Friscia v. Brown, 7 Vet. App. 294 (1995); Martinak v. Nicholson, 21 Vet. App. 447 (2007). The record shows that the Veteran reported on VA examination that he had “difficulties understanding conversations.” See VA Examination (December 2016). These symptoms fit within the symptoms contemplated by the schedular criteria. The Board acknowledges that the Veteran believes his hearing acuity is worse than evaluated. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel