Citation Nr: 18153243 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-48 677 DATE: November 27, 2018 ORDER The application to reopen a claim for service connection for frostbite of the left foot is denied. The application to reopen a claim for service connection for frostbite of the right foot is denied. A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1982 to August 1985. 2. In October 1990, the Regional Office (RO) denied frostbite of the left foot. The Veteran did not appeal and that decision became final. 3. In an unappealed June 2006 rating decision, the RO denied service connection for frostbite of the right foot and found that new and material evidence had not been submitted to reopen the claim for frostbite of the left foot. This is the last final denial for the claims of frostbite of the left and right feet. 4. The evidence submitted since the June 2006 decision reflected current nerve damage in the feet but does not establish a link between the current diagnoses and service. 5. Bilateral hearing loss is manifested by objective measures of no worse than Level I in each ear. CONCLUSIONS OF LAW 1. The June 2006 rating decision, which denied service connection for frostbite of left and right feet is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the June 2006 rating decision is not new and material; the claims for frostbite of the left and right feet are denied. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2017). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims for Frostbite of the Feet Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In October 1990, the RO denied service connection for frostbite of the left foot on the basis that there was no diagnosis of left foot frostbite. The Veteran did not appeal and that decision became final. In March 2006, the Veteran filed a claim for frostbite of both feet. In June 2006, the RO denied the right foot on the basis that frostbite of the right foot was not shown in service (acknowledging that the Veteran had waived a separation examination) and denied the left foot on the basis that new and material evidence had not been submitted. He did not appeal and that decision became final. Evidence received since the June 2006 decision includes VA treatment records, examination reports, private treatment records, and additional statements from the Veteran. Private treatment records indicate a possible current diagnosis of nerve damage and flat feet but does not establish any link between any current foot condition and service. Among the newly submitted evidence is a handwritten note from the Veteran stating that his STRs were lost at the Osan Air Base in South Korea. Although some STRs are available, the RO has acknowledged all along that STRs are missing, and there is a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Even if the STRs were available, there is no medical evidence of a connection between service and current symptoms. In September 1990, the Veteran reported having frostbite 5 years prior. The clinical diagnosis was frostbite by history but no residuals of frostbite were identified. In an April 2015 work slip, a private physician noted that the Veteran was under his care for “possible nerve damage and flat feet” but made no mention that the complaints were related to service or to residuals of frostbite, or even that the nerve damage was related to the feet. In another April 2015 clinical record, the Veteran reported that he was having bilateral foot pain. He stated that he was flat footed and was recently diagnosed with diabetes and was concerned about the pain. In May 2015, a clinician attributed the Veteran’s foot complaints to flat feet and recommended that he see a podiatrist. At that time, the Veteran reported the onset of foot pain as one year previously. This evidence weighs against the contention that foot pain is due to frostbite residuals (rather attributed to flat feet) or that it had an in-service onset (onset dated to 2014). In July 2016, the Veteran sought treatment for complaints of arthritis in his feet. An August 2016 clinical record noted that the Veteran complained of foot pain and was instructed to wear diabetic shoes for relief. This suggests that foot pain was related to diabetes. This evidence is significant in that the foot complaints were attributed to nonservice-connected disorders (flat feet and diabetes). Lay statements found in medical records when medical treatment was being rendered is afforded greater probative value as statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, without any competent medical evidence or opinion that the Veteran’s foot disorders are related to service, none of the newly-submitted medical evidence raises a reasonable possibility of substantiating those claims, and therefore, the evidence is not new and material for purposes of reopening the claims. Under these circumstances, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for frostbite, left and right foot, has not been received. As such, the appeals are denied. Increased Rating for Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity. Generally, the evaluation is determined after consideration of controlled speech discrimination ability and average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hz). If, however, an examiner certifies that use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., the evaluation will be based solely on the pure tone threshold average. 38 C.F.R. § 4.85(c). Additionally, if the evidence demonstrates the existence of exceptional patterns of hearing impairment, such as where testing reveals pure tone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hz) or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 or more decibels at 2000 Hz, the evaluation can be based on the pure tone threshold average and speech discrimination ability or solely on pure tone threshold average. 38 C.F.R. § 4.86. The Veteran asserts that his bilateral hearing loss disability is worse than contemplated by the currently-assigned noncompensable rating under DC 6100. He has asserted that he has difficulty communicating with family members because of his hearing loss. During an October 2014 VA audiology examination, audiometric testing results recorded during the examination were as follows: Hertz 1000 2000 3000 4000 Average Left Ear 30 40 45 55 42.5 Right Ear 35 35 45 55 42.5 Speech audiometry revealed speech recognition ability of 94% in his right ear and 98% in his left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level I in the left ear, resulting in a noncompensable rating. The Veteran did not submit private audiological tests showing additional hearing impairment. Neither were there additional audiological tests for the appeals period in his VA medical records. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). At the October 2014 VA examination, the Veteran was asked to describe the impact his hearing impairment had on his daily life, as was shown above. Therefore, the VA audiology evaluation reports of record are in compliance with the requirements set forth in Martinak. The Veteran’s bilateral hearing loss disability has not been shown to be worse than Level I in the right ear or Level I in the left ear through qualifying audiology examinations. Those results fall within the schedular criteria for a noncompensable rating. Therefore, the criteria for a compensable rating have not been met, and the appeal is denied. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Kokolas, Associate Counsel