Citation Nr: 18160736 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-35 323 DATE: December 27, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for allergic rhinitis is reopened. To that extent only, the appeal is granted. Entitlement to service connection for a lung disability is denied. Entitlement to a rating higher than 0 percent for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. An September 2006 RO rating decision denied service connection for chronic hay fever. 2. The Veteran did not perfect an appeal of the denial of service connection for chronic hay fever in the September 2006 RO decision. 3. The evidence received since the September 2006 rating decisions is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection allergic rhinitis. 4. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of any lung disability. 5. Throughout the period of appeal, the Veteran had, at worst, Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for allergic rhinitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a lung disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303. 3. Throughout the period of appeal, the criteria for a rating in excess of 0 percent for bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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 substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for allergic rhinitis Service connection for a disability manifested by chronic hay fever was denied in a September 2006 RO decision. The RO noted that although the service medical records showed treatment for hay fever, there was no evidence showing that an allergic disability currently existed. The RO denied service connection for a disability manifested by chronic hay fever as the evidence of record did not show a current allergic disability. Evidence associated with the claims file since the October 2009 RO decision includes additional lay statements, VA treatment records, and the transcript from the Veteran’s Board hearing. In particular, VA treatment records from June 2017 and June 2018 document the presence of allergic rhinitis. That evidence provides evidence of a current diagnosis of allergic rhinitis, which was not shown at the time of the previous final denial. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the newly submitted treatment records give a current diagnosis of allergic rhinitis, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for allergic rhinitis is reopened. Although the new evidence is adequate for the limited purpose of reopening the claim, that does not necessarily make it sufficient to allow the grant of the benefits sought. That will be discussed in the remand below. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307. 2. Entitlement to service connection for a lung disability The post-service medical records are silent for any signs, symptoms, or diagnoses of any lung disability. The Board finds that the evidence of record does not provide any medical basis for finding that the Veteran is currently diagnosed with a lung disability. The Veteran states that he experiences breathing difficulties. However, other than allergic rhinitis which will be discussed in the remand section below, the evidence does not show any diagnosed disability or medical findings of disability that would constitute a disability for which service connection could be established. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Notably, none of the competent evidence of record demonstrates that the Veteran is currently diagnosed with a lung disability. Service connection may not be established for symptoms unaccompanied by a diagnosed disability. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In the absence of a clear diagnosis of a current disability, or any abnormality which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there was no actual disability diagnosed at any time since the claim was filed or contemporary to the filing of the claim, and there remains no current evidence of the claimed disability, no valid claim for service connection for a lung disability exists. As the preponderance of the evidence is against the claim for service connection for a lung disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Ratings of hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI (2017). The assignment of disability ratings for hearing impairment is 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 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85 (2016). An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2017). In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. 3. Entitlement to a rating higher than 0 percent for service-connected bilateral hearing loss Service connection was originally granted for a bilateral hearing loss disability in a November 2015 rating decision. A 0 percent disability rating was assigned, effective July 20, 2015. The present claim for a higher rating was filed in July 2017. The Veteran had a VA audiology consult in June 2017. The Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 45 55 45 46 LEFT 45 50 60 55 53 On VA examination in September 2017, the Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 35 55 30 39 LEFT 35 35 50 35 39 Maryland CNC word recognition was 96 percent in the right ear and 96 percent in the left ear. The Veteran reported that he had difficulty understanding what was being said on television. He said that he had to sit very close to the television and raise the volume. The Veteran had a VA audiology consult in January 2018. The Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 40 60 45 46 LEFT 40 40 60 45 46 The Board finds that during the September 2017 examination, the audiologist adequately described the functional effects of the Veteran’s hearing loss on daily activities. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Initially, the Board notes that neither ear displays an exceptional pattern of hearing loss by regulation. Thus, Table VI will be used to determine the appropriate disability rating. 38 C.F.R. § 4.86(a). The Board further notes that neither the June 2017 nor the January 2018 VA audiology records include speech discrimination scores from administration of the Maryland CNC word recognition test. Therefore, while the Board has considered the results of the June 2017 and January 2018 VA audiology consults, those consults do not supply all of the necessary information to ensure proper application of Table VI. However, the results of the September 2017 VA examination include all of the necessary information to ensure proper application of Table VI. Applying the results for the Veteran’s right ear to Table VI shows that he has, at worst, Level I hearing loss, as shown by the September 2017 VA examination results. Under Table VI, the left ear has, at worst, Level I hearing loss, as shown by the September 2017 VA examination results. Applying Level I for the right ear and Level I for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, in this case, a lay opinion falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently rated, while he is competent to report symptoms such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage rating because such an opinion requires medical expertise and training in evaluating hearing impairment, which he does not possess, and the use of audiometric equipment. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Based upon the results from the VA examination, the Board finds that the criteria for a compensable rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 4.85, 4.86. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis is remanded. A service medical record dating from April 1975 shows that the Veteran had probable allergies. An August 1976 service treatment record contains a diagnosis of allergic rhinitis. Allergies and hay fever were noted at November 1987 and May 1989 service examinations. As the Veteran has documented in-service hay fever and allergy symptoms, and a current diagnosis of allergic rhinitis, remand is required for a VA examination to obtain an etiology opinion based on all of the evidence of record. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed allergic rhinitis. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any allergic rhinitis disability found. As to any pertinent disability identified on examination, the VA examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any allergic rhinitis had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner is requested to comment on the service medical records dating from April 1975 that show that the Veteran had probable allergies; from August 1976 which contains a diagnosis of allergic rhinitis; and November 1987 and May 1989 service examination reports which show allergies and hay fever. Any opinion expressed should be accompanied by a complete rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel