Citation Nr: 18158925 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 11-10 548 DATE: December 18, 2018 ORDER New and material evidence not having been received, the appeal to reopen service connection for a dental condition is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a heart condition other than hypertension is denied. Entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to a compensable rating for hypertensive retinopathy is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for residuals of a left elbow fracture is remanded. FINDINGS OF FACT 1. Service connection for a dental condition was denied in a November 2011 rating decision, and the Veteran did not appeal the decision. 2. Evidence received since the November 2011 rating decision is new but not material and does not support the application to reopen service connection for a dental condition. 3. Tinnitus was not first manifested during active service, and any current tinnitus is not related to injury, disease, or other event in active service. 4. The probative evidence of record does not show that the Veteran has a current diagnosis of any heart condition other than hypertension. 5. The probative evidence of record does not show that the Veteran has a current diagnosis of pseudofolliculitis barbae. 6. For the entire period of appeal, the hypertension requires continuous use of medication for control and does not result in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 7. For the entire period of appeal, the hypertensive retinopathy has not caused field of vision impairment, visual acuity impairment, or incapacitating episodes. 8. For the entire period of appeal, the hearing loss is manifested by no more than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear based on puretone threshold average and speech discrimination. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a dental condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a heart condition other than hypertension are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for pseudofolliculitis barbae are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. 6. The criteria for a compensable rating for hypertensive retinopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code 7101-6006. 7. The criteria for an initial compensable rating for bilateral hearing loss are not 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 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to February 1967. In October 2016, the Board remanded the issues for issuance of a Statement of the Case (SOC), which was subsequently completed in September 2017. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). In an October 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge, which he withdrew a few weeks later. In March 2018, the Veteran’s representative indicated that the Veteran wanted a videoconference hearing; however, in October 2018, the Veteran indicated that he did not want a Board hearing. See 38 C.F.R. § 20.704(d). The Board notes that in a July 2018 letter from the Agency of Original Jurisdiction (AOJ), the Veteran was made aware of the Rapid Appeals Modernization Program (RAMP) and in a subsequent letter, the Veteran elected to participate in RAMP, selecting the option for “Supplemental Claim.” However, as noted in the letter, appeals that have been activated by the Board are not eligible for RAMP processing. As the appeals of the issues discussed herein have been activated by the Board, the Board will continue with adjudication pursuant to current appeals procedures. The issue of entitlement to an effective date prior to May 19, 2003, for the award of service connection for hypertension has been raised by the record in a July 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Finally, the Board notes that the Veteran also has on appeal issues of entitlement to service connection for diabetes mellitus, prostate cancer, bilateral foot condition, an acquired psychiatric disorder, back disability, skin condition, and headaches. The Board remanded the issues in February 2018. The development ordered in the Board remand has not yet been completed and it appears that the AOJ is in the process of conducting the ordered development. These issues have not been recertified to the Board and are therefore not presently before the Board. New and Material Evidence Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence to reopen a claim for service connection for a dental condition. The Veteran submitted a claim for service connection for a dental condition in November 2010, which was denied in a November 2011 rating decision because there was no evidence that the claimed condition existed. Service treatment records (STRs) were reviewed and there was no mention of a diagnosis or treatment of dental trauma in service. The Veteran also did not submit any post-service treatment records that indicated the claimed condition existed from military service to the present time. The evidence of record at the time of the rating decision consisted of the STRs, VA treatment records, and private treatment records. The Veteran was notified of the rating decision in November 2011 and he did not perfect an appeal. As such, the decision is final. In July 2014, the Veteran requested to reopen the claim for service connection for a dental condition. The additional evidence received in support of the application to reopen consists of VA treatment records and private treatment records, which do not contain evidence of a current dental condition or in-service dental trauma. The Board finds that the evidence submitted since the November 2011 rating decision is new, but it is not material because it does not relate to an unestablished fact necessary to substantiate the claims for service connection for a dental condition. Specifically, the evidence does not indicate there is a current dental condition, or that any current condition is related to service. To the extent to which the Veteran asserts the onset of the condition was in service or attempts to provide such a link, this is cumulative of his statements prior to the November 2011 rating decision. Reid v. Derwinski, 2 Vet. App. 312 (1992). See also Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Thus, the Veteran’s lay statements on their own are not sufficient to serve as new and material evidence to reopen the claim. As such, the evidence submitted since the November 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a dental condition. Accordingly, new and material evidence has not been received to reopen service connection for a dental condition and the appeal is denied. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). 2. Service connection for tinnitus. The Board finds that service connection for tinnitus is not warranted. VA treatment records indicate that in September 2008, the Veteran reported having right ear tinnitus “on and off for awhile.” In December 2010, the Veteran reported having right ear tinnitus. In August 2014, the Veteran reported having “occasional right sided non-pulsatile tinnitus.” He was noted to have had loud noise exposure during work. Later that month, he reported that he “used to hear a ringing but not anymore.” In a March 2015 VA examination, the Veteran denied having recurrent tinnitus. In two April 2017 statements, the Veteran reported having a bilateral ear infection, and “banging and ringing” in his ears. In October 2017, the Veteran indicated that he had gotten hearing aids, but still had a ringing noise in his ears. He also asserted that he never indicated that the ringing went away. The Veteran had another VA examination in June 2018, in which he denied having tinnitus. In sum, it is unclear whether the Veteran has a diagnosis of tinnitus. VA treatment records show some reports of tinnitus, particularly in the right ear, but the Veteran denied having tinnitus in two VA examinations. However, even assuming that the Veteran is experiencing tinnitus, the preponderance of the evidence is against his claim for service connection. Although there is competent evidence of in-service noise to establish an in-service injury of acoustic trauma, the Veteran’s statements regarding the onset of tinnitus in active service lack the credibility necessary to afford them significant probative value, as his statements have been inconsistent. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (noting that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements). STRs do not document any complaints, symptoms, or findings of tinnitus, including the December 1966 report of medical history and examination upon separation from service. Although the Veteran has asserted that he has tinnitus due to noise exposure in service, he has also indicated in an August 2014 VA treatment record, March 2015 VA examination, and June 2018 VA examination that he was not experiencing tinnitus. As such, the Veteran’s lay assertions alone are not sufficient to establish tinnitus in service and since service. The Board finds that the medical evidence generated at the time of the Veteran’s period of active service, including the Veteran’s statements and responses on medical questionnaires, to be highly probative. These records were created contemporaneously with the Veteran’s period of service and contain information that is inherently more reliable than that recorded at a later time. The STRs indicate that the Veteran specifically denied having ear trouble. The December 1966 service separation examination report shows that the Veteran denied having any ear trouble, and his hearing test was within normal limits. The Board finds that the service medical evidence, the Veteran’s own statements generated at the time of service, and the lack of complaints, treatment, or diagnosis of tinnitus in the medical evidence of record for more than 40 years after service outweigh the Veteran’s own lay statements that he made in connection with his claim for service connection for tinnitus. There is also no medical evidence that relates any current tinnitus to military service. Because the Veteran denied having tinnitus in both VA examinations, neither VA examiner opined on the etiology of tinnitus. Moreover, the Veteran has not provided a medical opinion supporting his contention that he has tinnitus, which is related to his military service. In light of the above, the Board finds that the preponderance of the evidence is against a finding that any tinnitus diagnosis is related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Service connection for a heart condition other than hypertension. The Board finds that service connection for a heart condition other than hypertension is not warranted. VA treatment records and private treatment records associated with the claims file are silent for mention of complaints, diagnosis, or treatment of any heart condition except for hypertension, for which the Veteran is already service-connected. In a March 2015 VA examination, the Veteran’s sole diagnosis was hypertension. He denied having a history of a cerebrovascular accident, history of renal failure, coronary artery disease, or congestive heart failure. In a June 2018 VA examination, the Veteran’s only diagnosis was hypertension. The examiner noted that a VA heart examination was canceled as there was no medical evidence of a current diagnosis of a heart condition. In sum, the Board finds that the Veteran does not have current diagnosis of any heart condition other than hypertension, and has not had a diagnosis at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran contends that he has a heart condition, but he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of diseases of the heart and/or cardiovascular system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which consistently notes that the Veteran does not have a heart condition other than hypertension. Without competent evidence of a diagnosed disorder, service connection for the disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). 4. Service connection for pseudofolliculitis barbae. The Board finds that service connection for pseudofolliculitis barbae is not warranted. STRs are silent for mention of any complaints, symptoms, or findings of pseudofolliculitis barbae, including the December 1966 report of medical history and examination upon separation from service. The Veteran’s head, face, neck, and scalp were found to be clinically normal, and he did not report having any symptoms of pseudofolliculitis barbae. Post-service VA and private treatment records are also silent for mention of symptoms or diagnosis of pseudofolliculitis barbae. (The Board notes that there are treatment records noting a generalized skin rash and tinea pedis; as discussed above, claims for service connection for a skin condition and a foot conditions are on appeal and will not be discussed herein.) In sum, the Board finds that the Veteran does not have current diagnosis of pseudofolliculitis barbae, and has not had a diagnosis at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). While the Board has carefully and sympathetically reviewed the Veteran’s complaints, there is simply no evidence that the Veteran has been diagnosed with pseudofolliculitis barbae. Without competent evidence of a diagnosed disorder, service connection for the disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). Increased Ratings Disability evaluations are determined by the application of VA’s 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 5. Increased rating for hypertension. The Veteran’s hypertension has been assigned a 10 percent rating under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is applicable if diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure of predominantly 100 or more and continuous medication is required to control blood pressure. A 20 percent rating is warranted if diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. A 40 percent rating is warranted where diastolic pressure is predominantly 120 or more. A 60 percent rating is warranted where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. In a March 2015 VA examination, the Veteran reported that he took two medications daily, Amlodipine and Zestril, for hypertension and his blood pressure was fairly well controlled on the medications. He denied having a history of a cerebrovascular accident, renal failure, coronary artery disease, or congestive heart failure. His blood pressure was measured three times as 130/80, and the examiner indicated that the Veteran did not have a history of a diastolic blood pressure elevation ot predominantly 100 or more. The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to the hypertension. In an October 2016 private treatment record, the Veteran’s blood pressure was noted to be 155/82. The Veteran had another VA hypertension examination in June 2018. He reported that his blood pressure was usually in the 150s/70s, and occasionally 160/90, in the mornings. His wife indicated he once had a diastolic pressure of 100 at home. The Veteran took amlodipine, benazepril, and hydrochlorothiazide to treat the hypertension. His blood pressure was measured three times as 150/72, 150/82, and 150/82, with an average of 150/78. The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to the hypertension. The Board concludes that for the entire period of appeal, a rating in excess of 10 percent rating for hypertension is not warranted. A 20 percent rating requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. Here, the Veteran has required continuous medication to treat the hypertension for the entire period of appeal. However, in two VA examinations, his diastolic pressure never noted to be above a 82 and his systolic pressure was never noted to be above 150. Moreover, VA treatment records dated between 2014 and April 2018 are consistent with the VA examinations and do not show blood pressure recordings of diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. As such, a rating in excess of 10 percent for hypertension is not warranted under Diagnostic Code 7101 at any point during the period of appeal. 6. Increased rating for hypertensive retinopathy. The Veteran asserts without further elaboration that his eyes have worsened. See the July 2014 statement; October 2017 VA Form 9. Rating Criteria The Veteran’s hypertensive retinopathy is currently assigned a noncompensable (zero percent) rating under Diagnostic Code 7101-6006. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran’s hypertensive retinopathy is rated as analogous to hypertensive vascular disease (Diagnostic Code 7101) under the criteria for retinopathy or maculopathy (Diagnostic Code 6006). 38 C.F.R. § 4.79. Under the regulations that went into effect on December 10, 2008, which are applicable in the instant case, retinopathy or maculopathy is to be evaluated on the basis of either visual impairment due to the particular condition or incapacitating episodes, whichever results in a higher rating. 38 C.F.R. § 4.79, Diagnostic Codes 6000-6009. With respect to field of vision impairment, 38 C.F.R. § 4.76a, Table III, reflects that the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500. The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes. 38 C.F.R. § 4.76a. Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation if assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees unilaterally. A 30 percent evaluation is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual filed bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual filed defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction). 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. 38 C.F.R. § 4.76(b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. A 50 percent disability rating is warranted (1) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/70; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50. A 60 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/100; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/200; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200. An 80 percent disability rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200. A 90 percent disability rating is warranted only (1) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 10/200; (3) when vision in one eye is no more than light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200. A 100 percent disability rating is warranted only (1) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 5/200; (2) when vision in one eye is no more than light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is no more than light perception in both eyes; or (5) when there is anatomical loss of both eyes. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of § 4.25. In addition, for the period of appeal prior to May 13, 2018, the General Rating Formula for Diagnostic Codes 6000 through 6009 provides for a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for disability with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Effective May 13, 2018, VA promulgated a final rule that amends the General Rating Formula, providing a 10 percent disability rating for documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. For VA purposes, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Schedule for Rating Disabilities: The Organs of Special sense and Schedule of Ratings – Eye, 83 Fed. Reg. 15,316 (Apr. 10, 2018). Analysis The Board concludes that a compensable rating for hypertensive retinopathy is not warranted at any point during the period of appeal. In an April 2015 VA eye examination, the Veteran was noted to have a history of mild or grade I retinopathy secondary to his hypertensive condition. Upon examination, the Veteran was noted to have bilateral near and distance visual acuity of 20/40 or better. His pupils were round, equal, and reactive to light, and there was no afferent pupillary defect present. The Veteran did not have any anatomical loss, light perception only, extremely poor vision, blindness, a corneal irregularity that resulted in severe irregular astigmatism, or diplopia (double vision). A Goldman Visual Field test showed bilateral visual field contractions. The right eye showed: temporally 73 degrees, down temporally 63 degrees, down 53 degrees, down nasally 47 degrees, nasally 51 degrees, up nasally 46 degrees, up 35 degrees, and up temporally 32 degrees. Total field of vision was 400 degrees, with an average contraction of 50 degrees. The left eye showed: temporally 70 degrees, down temporally 60 degrees, down 57 degrees, down nasally 52 degrees, nasally 49 degrees, up nasally 42 degrees, up 33 degrees, and up temporally 43 degrees. Total field of vision was 406 degrees, with an average contraction of 51 degrees. However, the examiner indicated that visual field testing did not show a contraction of visual field, loss of visual field, or a scotoma. The examiner indicated that in addition to the retinopathy, the Veteran had preoperative cataracts and glaucoma, which did not cause a decrease in visual acuity or other visual impairment. The Veteran’s retinopathy also did not cause a decrease in visual acuity or other visual impairment, and the Veteran had not had any incapacitating episodes attributable to any eye condition. The Veteran had another VA eye examination in June 2018. His right eye corrected distance vision was 20/40 and his left eye corrected distance vision was 20/40 or better. His pupils were round, equal, and reactive to light, and there was no afferent pupillary defect present. The Veteran did not have any anatomical loss, light perception only, extremely poor vision, blindness, a corneal irregularity that resulted in severe irregular astigmatism, or diplopia (double vision). The examiner indicated that the Veteran had a documented visual field defect, but the results of field tests were unreliable because the Veteran had difficulty understanding the instructions for taking the test. In addition, the left eye had difficulty maintaining fixation due to the reduced central visual acuity from a lamellar macular hole. As such, the test results were likely not representative of the Veteran’s true field of vision. The Veteran’s diagnoses included bilateral angle-closure glaucoma, bilateral preoperative cataracts, and left eye maculopathy. The examiner opined that clinical findings indicated mild hypertensive retinopathy, and a review of the April 2015 VA examination showed there had been no change or progression in the hypertensive retinopathy. There was no loss of visual acuity and no loss of visual field due to the hypertensive retinopathy. The examiner also indicated that the glaucoma was age-related and was not due to or related to the retinopathy; the vitreo-macular traction with lamellar macular hole in the left eye was not due to or related to the retinopathy; the moderate cataracts were age-related and not due to or related to the retinopathy; and mild non-proliferative diabetic retinopathy in the left eye that was not due to or related to the hypertensive retinopathy. The examiner specified that the bilateral visual field loss was not due to or related to the mild hypertensive retinopathy. VA treatment records throughout the period of appeal are consistent with the VA examination findings. The Veteran had an iridotomy laser procedure for glaucoma on the left eye in May 2014 and on the right eye in June 2014. In an October 2014 ophthalmology appointment, the Veteran’s corrected distance vision was 20/25 bilaterally. He was noted to have diagnoses of narrow angle glaucoma in the left eye more than the right, mild nonproliferative diabetic retinopathy in the left eye and no retinopathy in the right eye, familial drusen, hypertensive retinopathy, and immature cataracts bilaterally. In July 2016, the Veteran had a laser trabeculoplasty procedure on this left eye (for treatment of glaucoma). In March 2017, the Veteran reported having no active concerns or changes in vision. In April 2018, the Veteran was evaluated for a possible trabeculoplasty procedure on his right eye and he indicated that he would prefer ot continue using drops before pursuing the trabeculoplasty procedure. In sum, the Board finds that a compensable rating for the service-connected hypertensive retinopathy is not warranted. To warrant a compensable rating, the evidence would need to show impairment in visual field, impairment in visual acuity (20/50 or worse in the left eye), incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (for the period of appeal prior ot May 13, 2018), or incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months (for the period of appeal from May 13, 2018). Here, however, the Veteran has not been found to have any impairment in visual acuity or visual field at any point during the period of appeal that is attributable to the hypertensive retinopathy. Rather, his bilateral corrected visual acuity has consistently been noted to be 20/40 or better and he has not complained of or been treated for an incapacitating episode. The Board acknowledges that the April 2015 VA examination results showed an impairment in visual field; however, as clarified by the June 2018 VA examiner, any visual field impairment was not due to or caused by the service-connected hypertensive retinopathy. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code, but as discussed above, finds that there is no indication that the Veteran had an impairment in visual acuity, impairment in visual field, or other symptoms of the hypertensive retinopathy to warrant any higher or additional ratings. Furthermore, as indicated by the June 2018 VA examiner, none of the other eye diagnoses, including glaucoma, vitreo-macular traction with lamellar macular hole in the left eye, cataracts, and mild non-proliferative diabetic retinopathy in the left eye were due to or related to the hypertensive retinopathy. As such, a compensable rating for the bilateral eye disability is not warranted for any period of the appeal. 7. Increased rating for bilateral hearing loss. The Veteran asserts that his hearing is worse than it is rated. He states that he needs bilateral hearing aids and he had an ear infection. See the April 2017 statement. Rating Criteria Where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Continued on the next page Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Analysis The Board concludes that a compensable rating for bilateral hearing loss is not warranted at any point during the period of appeal. VA treatment records indicate that in August 2014, the Veteran’s puretone thresholds were measured as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 20 25 40 40 31 LEFT EAR 15 30 45 40 33 The Veteran had a VA hearing loss examination in March 2015. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 20 25 35 40 30 LEFT EAR 20 30 40 40 33 Speech recognition scores were 100 percent in both ears. Applying these results to Table VI results in a designation of Level I for the right ear and Level I for the left ear. VA treatment records indicate that in April 2017, the Veteran was treated for cerumen (ear wax) impaction. The wax was removed and the Veteran was given ear drops to use three times per day. In July 2017, the Veteran was noted to have hearing sensitivity sloping to a mild-to-moderate sensorineural hearing loss bilaterally, which was overall stable compared to 2014. Hearing aids were ordered, which the Veteran was given in August 2017. The Veteran had another VA hearing loss examination in June 2018. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 15 30 40 45 33 LEFT EAR 25 40 50 45 40 Speech recognition scores were 96 percent in both ears. Applying these results to Table VI results in a designation of Level I for the right ear and Level I for the left ear. In sum, for the entire period of appeal, results of the VA examinations translate to, at worst, Level I hearing loss in the right ear and Level I hearing loss in the left ear when applied to Table VI of the rating schedule (puretone threshold average and speech discrimination). When applied to Table VIA (only puretone threshold average), results of the VA examinations still translate to, at worst, Level I hearing loss in the right ear and Level I hearing loss in the left ear. This level of hearing loss warrants a noncompensable (zero percent) rating under Table VII of the rating schedule. Therefore, a compensable schedular rating is not warranted under Diagnostic Code 6100 at any point during the period of appeal. See 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a left elbow fracture is remanded. The Veteran asserts that he broke his left elbow in service, and it has hurt since then. See the July 2014 statement. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence (CUE) that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). In this case, STRs indicate that in a March 1965 service induction examination, the Veteran was noted to have a well-healed fracture of the left elbow. The presumption of soundness therefore does not apply. However, post-service VA treatment records indicate that in a December 2011 physical therapy evaluation for left shoulder pain, the Veteran’s left elbow had reduced flexion and extension. The Board finds this evidence sufficient to trigger VA’s obligation to afford the Veteran a VA medical examination or opinion to determine whether the left elbow fracture residuals were aggravated by service. 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for the appropriate examination for medical opinions on whether it is as likely as not (50 percent or greater probability) that any left elbow fracture residuals are related to service. The claims folder, including a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The examiner is asked to provide an opinion on whether it is clear and unmistakable that the residuals of the left elbow fracture were not aggravated (that is, did not undergo a permanent increase in severity) during service. If unable to find clear and unmistakable evidence supporting a pre-existing condition that was not aggravated during service, the examiner is asked to provide an opinion on whether it is as likely as not (50 percent or greater probability) that any current left elbow diagnosis had its clinical onset during the Veteran’s period of active service or is related to incident, injury, or event in active service. (Continued on the next page)   2. After completing all indicated development, and any additional development deemed necessary, readjudicate the claim. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel