Citation Nr: 20003294 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 12-15 640 DATE: January 14, 2020 ORDER The petition to reopen the claim of service connection for hypertension is granted The petition to reopen the claim of service connection for heart disease is granted. An evaluation in excess of 30 percent for bilateral hearing loss prior to February 22, 2017, is denied. An evaluation in excess of 50 percent for bilateral hearing loss from February 22, 2017, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for heart disease is remanded. FINDINGS OF FACT 1. In a July 2007 rating determination, the RO denied service connection for heart disease. The Veteran was notified of the decision that same month and did not perfect his appeal within the proscribed time period nor was evidence received which would have allowed the claim to remain open. 2. Evidence received since the July 2007 rating determination raises a reasonable possibility of substantiating the claim of service connection for heart disease. 3. In a July 2007 rating determination, the RO denied service connection for hypertension. The Veteran was notified of the decision that same month and did not perfect his appeal within the proscribed time period nor was evidence received which would have allowed the claim to remain open. 4. Evidence received since the July 2007 rating determination raises a reasonable possibility of substantiating the claim of service connection for hypertension. 5. Prior to February 22, 2017, the Veteran had no worse than level VI hearing in the right ear and Level VII in the left ear. 6. From February 22, 2017, the Veteran had no worse than level VI hearing in the right ear and Level XI in the left ear. CONCLUSIONS OF LAW 1. The July 2007 rating determination denying service connection for heart disease is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence sufficient to reopen the claim of service connection for heart disease has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The July 2007 rating determination denying service connection for hypertension is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 4. New and material evidence sufficient to reopen the claim of service connection for hypertension has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for an evaluation in excess of 30 percent for bilateral hearing loss prior to February 22, 2017, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). 6. The criteria for an evaluation in excess of 50 percent for bilateral hearing loss from February 22, 2017, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1946 to March 1949. He died in March 2018. The appellant has been recognized as a substitute for the Veteran in claims that were pending at the time of his death. New and Material New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of 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." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. Heart Disease The RO denied service connection for heart disease in July 2007. In denying service connection, the RO noted the claim for service connection for heart condition (diagnosed as coronary artery disease) was denied because the Veteran was not shown to have been diagnosed or treated for this condition while in service nor was there competent evidence that the Veteran had this condition to a compensable degree within one-year post service. The RO observed that review of the progress notes from West Los Angeles VA Medical Center showed findings of this condition. However, no relationship was shown to exist with service at any time. Further, record of this heart disorder was too long after service for any service relation to be considered. The RO also noted that the Veteran alleged that this condition was associated with his diabetes mellitus and/or heart condition. However, the Veteran had not established service connection for these disabilities. The RO further observed that the statements from Dr. F. did not pertain to his claimed disability. Further, the statement from Dr. R. only indicated that there were no available clinical records from the Veteran’s treatment. The medication refill slips also did not in any way show causal relation with service. In view of the above and as there was no concrete evidence that any heart condition was incurred in service, service connection was not favorably considered either on a direct or one-year presumptive basis post service. Evidence available to the RO at that time included service treatment records; statements from the Veteran; statements from his private physicians; and post-service treatment records. The Veteran was notified of the denial the same month of the decision and did not appeal within the proscribed time nor was evidence received which would have allowed the claim to remain open. Thus, the decision became final. Evidence received subsequent to the July 2007 rating determination includes VA and private treatment records; statements from the Veteran’s VA and private physicians; the testimony of the Veteran; buddy statements; statements from the appellant; as well as the granting of service connection for PTSD, which was not in effect at the time of the prior denial. The Board notes that the appellant has been granted service connection for the cause of the Veteran’s death. The death notice listed the Veteran’s immediate cause of death as cardiac arrest due to or as a result of end stage atherosclerotic heart disease with other significant conditions listed as PTSD. In granting service connection, the RO noted that during the Veteran's lifetime, entitlement to service connection was properly established for PTSD with a 100 percent evaluation. The Board stated that resolving reasonable doubt in favor of the appellant, the Veteran's service-connected PTSD was at least a contributing factor in his death. It indicated that the Veteran's service-connected PTSD could not be disassociated from the cause of death. It stated that although the evidence showed coexisting disabilities causing death, it was reasonable to hold that the service-connected disability contributed towards death based on the progressive and debilitating nature of the disability. Given the above, the issue of service connection for heart disease as possibly secondary to the Veteran’s service-connected PTSD, to include by way of aggravation, has been demonstrated. This demonstrates previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, to include by way of a service-connected disability, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the July 2007 determination is new and material to reopen service connection for heart disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand section below. Hypertension The RO denied service connection for hypertension in July 2007. In denying service connection, the RO noted that the Veteran’s claim for service connection for hypertension had been previously denied because there was no competent evidence to show that this condition began in service or within the one year presumptive post service. This decision became final when the Board of Veterans' Appeals (Board) upheld the RO determination. The RO noted that in January 2007, the Veteran attempted to reopen his claim. The RO observed that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence meant existing evidence not previously submitted to agency decisionmakers. Material evidence meant existing evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. New and material evidence could 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 had to raise a reasonable possibility of substantiating the claim. It observed the reports from Dr. F, the West Los Angeles VA Medical Center, and the Veteran’s affidavit were not new and material evidence as they essentially were duplicates of evidence of what was previously considered. Hence, it did not afford new information in establishing service relation either on a direct or one-year presumptive basis post service. While the statement from Dr. R, and medication refill slips had not been submitted before, they were not material to the issue at hand as they did not specifically relate to the Veteran’s hypertension having been incurred in service. Since no new and material evidence had been submitted, the claim for service connection for hypertension had not been successfully reopened. The Veteran was notified of the denial the same month of the decision and did not appeal within the proscribed time nor was evidence received which would have allowed the claim to remain open. Thus, the decision became final. Evidence received subsequent to the July 2007 rating determination includes VA and private treatment records; statements from the Veteran’s VA and private physicians; the testimony of the Veteran; buddy statements; statements from the appellant; as well as the granting of service connection for PTSD, which was not in effect at the time of the prior denial. The Board notes that the appellant has been granted service connection for the cause of the Veteran’s death. The death notice listed the Veteran’s immediate cause of death as cardiac arrest due to or as a result of end stage atherosclerotic heart disease with other significant conditions listed as PTSD. In granting service connection, the RO noted that during the Veteran's lifetime, entitlement to service connection was properly established for PTSD with a 100 percent evaluation. The Board noted that resolving reasonable doubt in favor of the appellant, the Veteran's service-connected PTSD was at least a contributing factor in his death. It indicated that the Veteran's service-connected PTSD could not be disassociated from the cause of death. It stated that although the evidence showed coexisting disabilities causing death, it was reasonable to hold that the service-connected disability contributed towards death based on the progressive and debilitating nature of the disability. Given, the above, the issue of service connection for hypertension as possibly secondary to the Veteran’s service-connected PTSD, to include by way of aggravation, has been demonstrated. This demonstrates previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, to include by way of a service-connected disability, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the July 2007 determinations is new and material to reopen service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand below. Hearing Loss The appellant contends that the severity of the Veteran’s bilateral hearing loss warranted higher disability evaluations than were assigned during his lifetime. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 (2018). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2018). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate, the use of Table VIa is warranted. The appellant has argued that the Veteran’s hearing loss was more severe than was reflected by his assigned evaluations. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (2018) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, while the Veteran is clearly competent to describe what he experiences (diminished hearing), he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The above also applies to the appellant. In conjunction with his claim, the Veteran was afforded a VA examination in March 2015. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 40, 70, 85, and 90, and left ear 65, 70, 90, and 95, at 1000, 2000, 3000, and 4000 Hertz, respectively. The use of the word recognition score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. Using Table VIa in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level VI hearing loss, the left ear corresponded with Level VII hearing loss. This equates to a 30 percent hearing loss. The Veteran was afforded an additional VA examination on February 22. 2017. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 40, 50, 60, and 85, and left ear 105, 105, 105, and 105, at 1000, 2000, 3000, and 4000 Hertz, respectively. CNC speech recognition was 64 percent in the right ear and 20 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level VI hearing loss, the left ear corresponded with Level XI hearing loss. This equates to a 50 percent hearing loss. In sum, hearing prior to February 22, 2017, was, at worst, level VI in the right ear and level VII in the left ear. A comparison between these hearing levels and 38 C.F.R. § 4.85, Table VII, yields a 30 percent evaluation, consistent with the currently assigned rating. In sum, hearing loss from February 22, 2017 revealed, at worst, level VI in the right ear and level XI in the left ear. A comparison between these hearing levels and 38 C.F.R. § 4.85, Table VII, yields a 50 percent evaluation, consistent with the currently assigned rating. The Board has considered the provisions of 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, but the Veteran's pure tone thresholds do not conform to criteria listed in this regulation. In providing its findings, the Board acknowledges the Veteran's and the appellant’s complaints regarding impact of his hearing loss on his daily activities, and the VA's obligations of resolving reasonable doubt in favor of the Veteran. However, the Board notes that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Finally, there was no evidence to suggest that the Veteran's hearing increased in severity since the last VA examination, or that the results of any of the tests were unreliable. Accordingly, the preponderance of the evidence weighs against assigning higher ratings. 38 C.F.R. §§ 4.85, 4.86. In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the bilateral hearing loss disability is no more than 30 percent prior to February 22, 2017, and no more than 50 percent thereafter. Here, the Board finds that the preponderance of evidence is against the finding that a higher rating during any relevant period is warranted. As such, the appellant’s claim for an increased rating for must be denied. REASONS FOR REMAND As it relates to the claim of service connection for hypertension and heart disease, given the findings that the Veteran’s PTSD played a contributing factor in his death, which was from cardiac arrest due to or as a result of end stage atherosclerotic heart disease, an opinion should be obtained as to whether the Veteran’s heart disease and/or hypertension was caused and/or aggravated by his service-connected PTSD. To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998), 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Given the foregoing, an opinion should be obtained to determine the etiology of any heart disease or hypertension and their relationship, if any, to his period of service and/or his service-connected PTSD. The matters are REMANDED for the following action: Send the Veteran’s entire file to an appropriate examiner to determine the nature and etiology of any heart disease or hypertension. Following a complete review of the file, the examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any heart disease and/or hypertension was etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any heart disease or hypertension was caused by the service-connected PTSD? (Continued on the next page)   If not, is it at least as likely as not (50 percent probability or greater) that any hypertension or heart disease was aggravated by the service-connected PTSD? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.