Citation Nr: 21000218 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 20-29 297 DATE: January 4, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for bilateral hearing loss is reopened; to this extent, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for otosclerosis is reopened; to this extent, the claim is granted. Entitlement to a compensable evaluation for service-connected pulmonary tuberculosis, inactive is denied. REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected pulmonary tuberculosis, inactive is remanded. Entitlement to service connection for otosclerosis, to include as secondary to service-connected pulmonary tuberculosis, inactive is remanded. FINDINGS OF FACT 1. A February 1985 Board decision denied compensation for hearing loss and otosclerosis. 2. In an October 1995 rating decision, the Regional Office (RO) denied the Veteran’s claim for compensation under 38 U.S.C. § 1151 for hearing loss; the Veteran did not perfect his appeal to the Board and no new and material evidence was received within one year of the rating decision. 3. In a July 2004 rating decision, the RO denied the Veteran’s claim for service connection for hearing loss. 4. In an April 2010 rating decision, the RO declined to reopen a claim for service connection for hearing loss. 5. Additional evidence received since the RO’s April 2010 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for hearing loss, and raises a reasonable possibility of substantiating the claim. 6. Additional evidence received since the February 1985 Board decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for otosclerosis, and raises a reasonable possibility of substantiating the claim. 7. The most probative evidence establishes that the Veteran does not have moderately advanced lesions and his tuberculosis has been inactive since 1958. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the Veteran’s claims for service connection for bilateral hearing loss and otosclerosis. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 2. The criteria for entitlement to a compensable evaluation for service-connected pulmonary tuberculosis, inactive have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.97, DC 6724. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1952 to March 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision. The Veteran did not request a Board hearing. NEW AND MATERIAL EVIDENCE Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss A February 1985 Board decision denied compensation for hearing loss. In September 1991, the Veteran filed a request to reopen his claim. In an October 1995 rating decision, the RO denied compensation under 38 U.S.C. § 1151 for hearing loss. The Veteran did not initiate an appeal of this denial, nor was new and material evidence submitted, and the October 1995 rating decision became final. In April 2004, the Veteran filed a request to reopen his claim. In a July 2004 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, finding that no new and material evidence was submitted to reopen the claim after the previously denied rating decision. The record shows the Veteran’s NOD was received on April 9, 2007. In March 2010, the Veteran filed a claim for service connection for bilateral hearing loss. In an April 2010 rating decision, the RO denied the claim because new and material evidence had not been submitted to reopen the claim. The April 2010 rating decision considered and listed the private treatment records from Regional Otolaryngology Head and Neck Associates and found that, while the private treatment records were new, they were not material because they did not relate to an unestablished fact necessary to substantiate the claim. VA treatment records from March 2005 to August 2010 were received in August 2010. These records show ongoing complaints of hearing loss, and the Veteran’s documented history for treatment with Streptomycin and INH. Evidence of record prior to the February 1985 Board decision included documentation that the Veteran suffered from hearing loss and was treated with Streptomycin and INH. In fact, the February 1985 Board decision noted treatment records reflect the Veteran had “conduction hearing loss from 1972 to 1975.” The Board decision also stated that “chemotherapy, including Streptomycin, was continued through the rehabilitation, and it was recommended that the Streptomycin be continued through August 1956.” Thus, the new evidence is largely cumulative, as it demonstrates the Veteran’s symptoms and treatment for tuberculosis, which are not in dispute. The new evidence does not relate to an unestablished fact necessary to substantiate the claim. Cumulative and duplicative evidence is not new and material. 38 C.F.R. § 3.156 (a). Thus, new and material evidence was not submitted within one year of the April 2010 rating decision. Since the April 2010 rating decision, the Veteran submitted a May 2017 private disability benefits questionnaire (DBQ), a lay statement, VA treatment records, and was afforded a VA hearing loss examination. The May 2017 private DBQ shows a diagnosis of hearing impairment, audiogram results, and a nexus statement. In the November 2017 Statement in Support of Claim, the Veteran relates that he became ill with pneumonia during active service and received treatment at five army hospitals. The February 2018 VA hearing loss examination provides a diagnosis of bilateral sensorineural hearing loss, and a nexus statement regarding whether the Veteran’s hearing loss is due to military noise exposure. VA treatment records from April 1984 to June 2018, and February 2019 to February 2020 note sensorineural hearing loss and audiology consults. The additional evidence is new in that it was not of record at the time of the April 2010 rating decision. The November 2017 lay statement and VA treatment records show documentation of hearing impairment, a diagnosis of hearing loss, and the Veteran’s history of treatment at Army Hospitals. This new evidence is cumulative as it demonstrates the Veteran’s diagnosis and in-service events which are not in dispute. The new evidence does not relate to an unestablished fact necessary to substantiate the claim. The May 2017 DBQ and February 2018 VA examination provide nexus opinions regarding whether the Veteran’s hearing loss is due to his active service. This evidence is material to the nexus question to establish service connection. Therefore, the Board finds that the May 2017 DBQ and February 2018 VA examination are new and material and sufficient to reopen the claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for otosclerosis The Veteran seeks to reopen his claim of entitlement to service connection for otosclerosis. A February 1985 Board decision denied compensation for otosclerosis. In January 2018, the Veteran filed a request to reopen his claim of entitlement to service connection for the previously denied otosclerosis. The pertinent question is whether the Veteran has submitted new and material evidence since the February 1985 Board decision that, when viewed alongside the evidence already of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for otosclerosis. Since the February 1985 rating decision, the Veteran submitted a May 2017 private disability benefits questionnaire (DBQ), lay statements, VA treatment records, and private treatment records. The May 2017 private DBQ shows a diagnosis of otosclerosis, and a nexus statement regarding whether the Veteran’s hearing loss is due to active service. In the April 2004 and November 2017 Statements in Support of Claim, the Veteran relates that he became ill with pneumonia and received treatment at five army hospitals where he was diagnosed with otosclerosis. Private treatment records show the Veteran was diagnosed with otosclerosis. VA treatment records from April 1984 to June 2018, and February 2019 to February 2020 note a diagnosis of otosclerosis and a history of treatment for tuberculosis and pneumonia. The additional evidence is new in that it was not of record at the time of the February 1985 Board decision. The lay statements, private treatment records, and VA treatment records show documentation of hearing impairment, a diagnosis of otosclerosis, and the Veteran’s history of treatment at Army Hospitals and private facilities. This new evidence is cumulative as it demonstrates the Veteran’s diagnosis and in-service events which are not in dispute. The new evidence does not relate to an unestablished fact necessary to substantiate the claim. The May 2017 DBQ provides a nexus opinion regarding whether the Veteran’s otosclerosis, manifested by hearing loss, is due to his active service. This evidence is material to the nexus question to establish service connection. Therefore, the Board finds that the May 2017 DBQ is new and material and sufficient to reopen the claim for entitlement to service connection for otosclerosis. INCREASED RATING 1. Entitlement to a compensable evaluation for service-connected pulmonary tuberculosis, inactive Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Veteran is currently rated as noncompensable under Diagnostic Code (DC) 6724. Under DC 6724, a 100 percent evaluation is assigned for two years after date of inactivity, following active tuberculosis, which was clinically identified during service, or subsequently. Thereafter, a 50 percent rating is assigned for four years, or in any event, to six years after date of inactivity. Thereafter, a 30 percent rating is assigned for five years, or to eleven years after date of inactivity. 38 C.F.R. § 4.97, DC 6724. A 30 percent is also provided for advanced lesions diagnosed at any time while the disease process was active, minimum. Id. A 20 percent rating is warranted for moderately advanced lesions, provided that there is continued disability, emphysema, dyspnea on exertion, impairment of health, etc. Id. The Veteran was afforded a VA examination in April 2018. The Veteran’s diagnosis is pulmonary tuberculosis, inactive. Residual findings include a pleurisy type of feeling in the left lung with weather conditions. Tuberculosis pleurisy is a non-pulmonary tuberculosis. This became inactive in 1954. Residuals for tuberculosis pleurisy includes weakness with change in seasons. The examiner stated the Veteran’s tuberculosis is inactive and there is no associated impairment due to tuberculosis. There is no evidence of rashes or lesions. The Veteran stated he still has weakness. A February 2020 VA treatment note reports the Veteran had tuberculosis in the early 1950s. The Veteran stated he feels he is a “lepper [sic].” The Board has considered the Veteran’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report symptoms such as weakness because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds that the most probative evidence of record establishes that the Veteran does not have lesions and his tuberculosis is inactive. While the Veteran has pleurisy with weather changes, this does not meet the criteria for a compensable rating. The evidence does not reflect that the Veteran has moderately advanced lesions with continued disability to warrant a 20 percent rating under DC 6724. The Veteran’s pulmonary tuberculosis has also been inactive since June 1958. See April 2018 VA examination. The Veteran’s tuberculosis has therefore been inactive for over 60 years. Since it has been more than eleven years since active tuberculosis, a rating of 30 percent is not warranted. Thus, a compensable rating is not warranted for any portion of the period on appeal. Therefore, entitlement to an increased rating for pulmonary tuberculosis, inactive is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected pulmonary tuberculosis, inactive is remanded. 2. Entitlement to service connection for otosclerosis, to include as secondary to service-connected pulmonary tuberculosis, inactive is remanded. The Veteran contends that his bilateral hearing loss and otosclerosis are due to treatment received while in the military and suffering from tuberculosis and pneumonia. See March 2005 Correspondence. The Veteran also contends that his bilateral hearing loss and otosclerosis are due to his service-connected tuberculosis. STRs show the Veteran had chemotherapy, including Streptomycin and INH, to treat his tuberculosis and pneumonia. A May 2017 private DBQ shows the Veteran has a diagnosis of otosclerosis and hearing impairment. The examiner stated the Veteran has profound hearing loss from military noise exposure. The examiner did not provide a rationale for the opinion stated. The Board finds this opinion inadequate as the examiner did not provide an adequate basis for the medical conclusion. The Veteran was afforded a VA Hearing Loss Examination in February 2018. The VA examiner opined the Veteran’s bilateral hearing loss is less likely than not caused by or a result of military noise exposure. The examiner reasoned the Veteran maintained a normal hearing at separation. The Board cannot make a fully-informed decision on the issues of bilateral hearing loss and otosclerosis because no VA examiner has opined whether these disabilities are due to treatment during service for tuberculosis and pneumonia, or whether the disabilities are secondary to the Veteran’s service-connected pulmonary tuberculosis, inactive. Therefore, remand is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of a hearing condition. The entire file must be made available to the examiner designated to examine the appellant. The examiner must opine whether: a) it is at least as likely that the Veteran’s hearing loss is etiologically related to his military service, to include treatment for tuberculosis and pneumonia with chemotherapy, Streptomycin, and INH. b) it is at least as likely as not the Veteran’s hearing loss is (1) proximately due to service-connected pulmonary tuberculosis, or (2) aggravated beyond its natural progression by service-connected pulmonary tuberculosis. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of an ear condition. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) it is at least as likely that the Veteran’s otosclerosis, or other ear condition, is etiologically related to his military service, to include treatment for tuberculosis and pneumonia with chemotherapy, Streptomycin, and INH. b) it is at least as likely as not that the Veteran’s otosclerosis, or other ear condition, is (1) proximately due to service-connected pulmonary tuberculosis, or (2) aggravated beyond its natural progression by service-connected pulmonary tuberculosis. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.