Citation Nr: 18150986 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-24 966A DATE: November 16, 2018 ORDER New and material evidence has been received, and the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to an initial evaluation in excess of 10 percent for irritable bowel syndrome (IBS), also claimed as gas and cramps, is denied. Entitlement to an effective date prior to January 8, 2009, for the grant of service connection for IBS is denied. FINDINGS OF FACT 1. In a February 2008 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a bilateral hearing loss disability, and the Veteran did not perfect an appeal of that decision. 2. The evidence received since the February 2008 rating decision is new and material, and raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have bilateral hearing loss considered to be a disability for VA purposes. 4. Throughout the applicable period IBS manifested by moderate disability due to irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. 5. In an unappealed and final rating decision dated in January 2004, VA denied the Veteran’s claim of entitlement to service connection for IBS. 6. VA received the Veteran’s claim to reopen the issue of entitlement to service connection for IBS on January 8, 2009, but no earlier. CONCLUSIONS OF LAW 1. The February 2008 rating decision denying the Veteran’s claim of entitlement to service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Since the February 2008 rating decision new and material evidence to reopen the claim for service connection of a bilateral hearing loss disability has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to an initial evaluation in excess of 10 percent for IBS, also claimed as gas and cramps, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.114, Diagnostic Code 7319 (2017). 5. The criteria for entitlement to an effective date prior to January 8, 2009, for the grant of service connection for IBS have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2012). For claims received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (2012) (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In a February 2008 rating decision, the RO denied entitlement to service connection for a bilateral hearing loss disability. The RO concluded that the evidence did not establish that the Veteran had a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran did not appeal that determination and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). Since the February 2008 rating decision, new and material evidence has been received. In furtherance of attempting to substantiate his claim, the Veteran submitted a statement and evidence indicating that his service as an Aviation Structural Mechanic likely involved exposure to acoustic trauma. This evidence is new and material to the extent that it indicates exposure to acoustic trauma. Shade, supra. Accordingly, the claim is reopened. 2. Entitlement to service connection for a bilateral hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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). Sensorineural hearing loss may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). With specific regard to service connection claims for hearing loss, VA regulations stipulate that hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 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, 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 requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a bilateral hearing loss disability is not established. The Board acknowledges the Veteran’s complaints regarding having hearing difficulties, which he is competent to relate. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Nevertheless, it is clear that the diagnosis of hearing loss is not capable of lay observation, as it requires audiometric findings. In the present case, there are no audiometrics of record showing that the Veteran has ever had hearing loss considered a disability for VA purposes. See 38 C.F.R. § 3.385. Accordingly, the claim is denied. The Board acknowledges that the Veteran has not been afforded a VA examination to address the claim of entitlement to service connection for a bilateral hearing loss disability. Here, the Veteran is incarcerated, and will be incarcerated for the foreseeable future. VA attempted to schedule the Veteran for a VA examination, to include having the audiology testing done at the Veteran’s correctional facility. However, the correctional facility has denied VA’s request to have the Veteran transported for an examination, and does not have the appropriate equipment to conduct the testing. Moreover, portable equipment for testing is not available. See February 26, 2018, C&P Examination Note. 3. Entitlement to an initial evaluation in excess of 10 percent for irritable bowel syndrome (IBS), also claimed as gas and cramps. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates “staged ratings” where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As this case involves the appeal from an initial grant of service connection, the regulations providing for an effective date up to 1 year prior in the case of a claim for increased compensation of an already service-connected disability are not for application. 38 C.F.R. § 3.400(o)(2); see also Fenderson v. West, 12 Vet. App. 119 (1999). The RO has rated the Veteran’s IBS under Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent rating contemplates moderate disability due to irritable colon syndrome manifested by frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. A maximum 30 percent rating requires severe disability manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Id. Here, no evidence indicates that the Veteran’s IBS has ever approximated a severe disability manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. VA examinations in October 2012 and April 2018 reflect that the disability has manifested by frequent episodes of alternating diarrhea and constipation, with abdominal bloating and distress after meals, relieved by a bowel movement. Moreover, several lay statements of record indicate frequent episodes of diarrhea and constipation with abdominal distress relieved by bowel movements. Thus, although the Veteran’s IBS may have manifested by alternating constipation and diarrhea, the Board does not find that IBS has manifested by severe disability with more or less constant abdominal distress. The Veteran’s symptoms are relieved with bowel movements, and there is no indication that he is in “more or less” constant abdominal distress. Accordingly, entitlement to an initial evaluation in excess of 10 percent for IBS is denied. Fenderson, supra. 4. Entitlement to an effective date prior to January 8, 2009, for the grant of service connection for IBS. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran seeks an effective date of May 29, 2002, for the award of service connection for IBS. This marks that date that VA received his first claim for service connection of IBS, which was denied in an unappealed January 2004 rating decision. VA next received the Veteran’s claim to reopen the issue of service connection for IBS on January 8, 2009, but no earlier. The Veteran asserts that May 29, 2002, the date of his originally denied claim, should be the effective date of the grant. (Continued on the next page)   An effective date prior to January 8, 2009, for the initial award of service connection for IBS is not warranted. Here, the Veteran’s claim to reopen was received on January 8, 2009. The Board has reviewed the communications from the Veteran contained within the file, and has found no indication of any intent to reopen the claim prior to this date. Thus, because this is a claim reopened after a final disallowance, the earliest effective date allowed by law is the date of receipt of claim, i.e. January 8, 2009. Accordingly, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak