Citation Nr: 20002198 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 12-24 264 DATE: January 10, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. New and material evidence having been presented, reopening of the claim for service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in either ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. INTRODUCTION The Veteran served on active duty from June 1964 to June 1967 and from April 1970 to February 1978. The matters on appeal were previously before the Board in December 2016, when the case was remanded for further development. The case has returned to the Board for additional appellate action. The Veteran previously submitted a claim for entitlement to service connection for hypertension which was denied in a May 2006 rating decision on the basis that the record did not demonstrate an injury, disease, or event to which the claimed disability could be attributed, a nexus between the claimed disability and service, or a nexus between the claimed disability and the Veteran’s service-connected diabetes mellitus. The May 2006 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Thereafter, the Veteran initiated a claim to reopen his previously denied claim. Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Evidence submitted or secured after the May 2006 rating decision, notably service treatment records (STRs) added to the claims file in June 2014, reflect multiple elevated blood pressure readings. Thus, the Board finds that new and material evidence has been received sufficient to reopen the Veteran’s previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The record reflects the Veteran has undergone several audiology evaluations throughout the appeal period. Notwithstanding, the audiology evaluations did not demonstrate the Veteran's hearing loss has risen to a compensable level. An April 2006 VA examination report reveals that the Veteran reported difficulty understanding speech, especially soft voices. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 35 65 80 51 96% LEFT 30 35 55 75 49 96% Applying the results to Table VI, the findings yield a numeric designation of Level I bilaterally. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0% percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran underwent an additional VA audiology examination in April 2011. The recorded speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 30 65 80 53 92% LEFT 35 40 60 70 51 96% Applying these values to Table VI, results in a numeric designation of Level I bilaterally. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0% percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Subsequently, a January 2017 VA examination report reveals that the Veteran reported that his hearing loss was getting worse. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 40 70 80 63 96% LEFT 40 45 65 75 56 88% Applying the results to Table VI, the findings yield a numeric designation of Level II bilaterally. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0% percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding speech. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 1. Service connection for hypertension. The Veteran seeks service connection for hypertension, which he contends is related to service. Alternatively, he alleges his hypertension was caused or aggravated by his service-connected diabetes mellitus. The Veteran underwent a VA examination in May 2006. The examiner noted the Veteran had a diagnosis of essential hypertension. Further, the examiner opined the Veteran’s hypertension was not caused by or as a result of diabetes mellitus, type 2. The examiner, however, did not opine as to whether the Veteran’s hypertension was aggravated by service-connected disabilities, to include diabetes mellitus. Moreover, the examiner did not address the theory of direct service connection. Additional evidence has been associated with the record after the May 2006 VA examination. STRs received in June 2014 reflect multiple reports of elevated blood pressure readings. Based on this additional evidence, the Board finds a remand is necessary to obtain an appropriate examination and opinion. 2. Service connection for an eye disability. The Veteran seeks service connection for an eye disability, which he contends is related to service. Alternatively, he alleges his eye disability was caused or aggravated by his service-connected diabetes mellitus. The Veteran underwent a VA examination in April 2011. The examiner noted the Veteran had a diagnosis of ocular hypertension, cataracts, refractive error, presbyopia, and amblyopia. The examiner stated that he could not resolve without resorting to mere speculation whether the Veteran’s cataracts were caused or aggravated by his diabetes mellitus. Further, the examiner opined the Veteran’s refractive error and presbyopia were not caused by or related to diabetes mellitus. The examiner, however, did not provide a rationale for his opinion, other than stating that it was based on “medical records review and clinical knowledge.” The Board finds the April 2011 examination report is inadequate for adjudication purposes, as the examiner failed to provide an adequate rationale for the proffered opinion. See Nieves-Rodriguez, 22 Vet. App. 295. Further, the examiner’s inability to opine on the etiology of the Veteran’s cataracts appears to be predicated on the examiner’s individual limitation, rather than on a lack of knowledge in the medical community. As such, a remand is warranted to obtain an adequate VA examination and opinion. 3. Service connection for erectile dysfunction. The Veteran seeks service connection for erectile dysfunction, which he contends is related to service. Specifically, he alleges his erectile dysfunction was caused or aggravated by his service-connected diabetes mellitus. The Veteran underwent a VA examination in April 2011. On that occasion, the examiner opined the Veteran’s erectile dysfunction was not caused by or a result of diabetes mellitus. The examiner noted the Veteran had long-standing hypertension, which onset was years prior to his diabetes mellitus. Additionally, the examiner opined that the Veteran’s erectile dysfunction was more likely due to his hypertension and related hypertension medications. This opinion, however, appears to be internally inconsistent, as the examiner also stated that she could not “quantify how much [erectile dysfunction] is due to [hypertension] and related medications and how much might be due to [service-connected diabetes mellitus]. As such, the Board finds the April 2011 examination report is inadequate for adjudication purposes. See Nieves-Rodriguez, 22 Vet. App. 295. Thus, a remand is warranted to obtain an adequate VA examination and opinion. Further, because a decision on the remanded issue of service connection for hypertension could significantly impact a decision on the issue of service connection for erectile dysfunction, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a “significant impact” upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). Thus, the Board finds a remand of the claim for service connection for erectile dysfunction is also warranted on this basis. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s claimed hypertension, eye disability, and erectile dysfunction. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner(s) should state an opinion with respect to: a. Whether the Veteran’s hypertension was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service, to specifically include as a result of the elevated blood pressure readings during service; b. Whether the Veteran’s hypertension was at least as likely as not (a 50 percent probability or greater) (1) proximately due to service-connected disability, to specifically include his service-connected diabetes mellitus or (2) aggravated beyond its natural progression by service-connected disability, to specifically include his service-connected diabetes mellitus; c. Whether any diagnosed eye disability was at least as likely as not (a 50 percent probability or greater) incurred in service or is otherwise etiologically related to the Veteran’s active service; d. Whether any diagnosed eye disability was at least as likely as not (a 50 percent probability or greater) (1) proximately due to service-connected disability, to specifically include his service-connected diabetes mellitus or (2) aggravated beyond its natural progression by service-connected disability, to specifically include his service-connected diabetes mellitus; e. Whether the Veteran’s erectile dysfunction was at least as likely as not (a 50 percent probability or greater) (1) proximately due to service-connected disability, to specifically include his service-connected diabetes mellitus or (2) aggravated beyond its natural progression by service-connected disability, to specifically include his service-connected diabetes mellitus. For the purposes of these opinions, the examiner(s) should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner(s) must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or a lack of knowledge among the medical community at large. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Martinez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.