Citation Nr: 21061664 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-46 178 DATE: October 4, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for glaucoma is granted. An initial compensable rating for the service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for glaucoma is remanded. FINDINGS OF FACT 1. In August 1995, the Regional Office (RO) denied the Veteran's claim for service connection for glaucoma after he failed to report for a VA medical examination without explanation. The Veteran was duly notified of the RO's determination, but did not appeal the decision or indicate his willingness to report for an examination; nor was new and material evidence received in the following year. 2. Evidence received since the final August 1995 determination denying service connection for glaucoma relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for glaucoma. 3. Throughout the period of appeal, the Veteran has had no worse than Level I hearing loss in each ear, and no exceptional hearing loss pattern in either ear. CONCLUSIONS OF LAW 1. The August 1995 determination denying service connection for glaucoma is final. 38 U.S.C. § 7105 (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995). 2. The evidence received since the August 1995 determination is new and material evidence and serves to reopen the Veteran's claim for service connection for glaucoma. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for an initial compensable evaluation for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1977 to May 1995. The Veteran requested, and was scheduled for, a hearing with the Board of Veterans' Appeals (Board) on August 12, 2021. However, he did not request postponement of the hearing, did not appear for the hearing, and did not request for the hearing to be rescheduled. As such, his hearing request is deemed withdrawn, and the case may be adjudicated by the Board. 38 C.F.R. § 20.704(d). New and Material Evidence Glaucoma A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the RO decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When deciding whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In an August 1995 decision, the RO notified the Veteran that his claim for service connection for glaucoma could not be granted because he failed to report for a scheduled medical examination, and because the evidence then of record was insufficient to evaluate his claimed disability. He was informed in this notification letter that, if he advised VA of his willingness to report for an examination, an examination would be re-scheduled, and his claim would be reconsidered. The August 1995 letter included notice of his appellate rights. He did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Evidence added to the record since the August 1995 determination includes private medical records reflecting that the Veteran had been diagnosed with, and treated for, glaucoma. This evidence pertaining to the subsequent severity of his claimed glaucoma relates to an element of his appeal that was not met when the claim was last denied in August 1995. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection glaucoma. The claim is reopened. Increased (Compensable) RatingBilateral Hearing Loss Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board considers entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, and under the circumstances presented by this case, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran's pure tone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran's speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average pure tone thresholds and speech discrimination scores are determined for each ear, the values of each ear individually are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran's disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear is assigned a Roman Numeral designation of I. Id. The Veteran underwent examinations that complied with these criteria during the period on appeal at September 2012 and March 2016 VA examinations. At the September 2012 examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 15 30 45 29 LEFT 15 20 50 45 33 The average pure tone threshold across 1000-4000 Hz in the right ear was 29 decibels and in the left ear was 33 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear. At this examination, the Veteran was noted as having difficulty hearing all parts of conversations when there was background noise present. He reported that it interfered with his interactions with his wife. At the March 2016 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 35 55 31 LEFT 20 25 50 60 39 The average pure tone threshold across 1000-4000 Hz was 31 decibels (right) and 39 decibels (left). Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. At this examination, the Veteran reported needing others to repeat what they were saying to him when there was background noise present. Using Table VI, the results of both the September 2012 and March 2016 VA examinations provide Level I hearing loss designations in the right ear and Level I designations in the left ear. 38 C.F.R. § 4.85. Using Table VII, VA assigns a non-compensable (0 percent) rating where both ears are a Level I. Id. The Board has discussed the proper legal criteria for rating the Veteran's hearing loss herein and applied it in the light most favorable to the Veteran. Unfortunately, there are no legal grounds to afford a compensable schedular rating for his hearing loss. Further, he has not reported, and the evidence does not otherwise show, any additional symptoms or effects on his daily life beyond hearing loss related to this disability. Thus, it is appropriate to rate his hearing loss disability through the mechanical application of the rating formula. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In reaching this conclusion, the Board acknowledges that VA regulations provide for alternative means of rating hearing loss where pure tone thresholds are 55 decibels or greater at each of the values from 1000 to 4000 Hz or where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. However, the Veteran's hearing loss does not meet either of these exceptional patterns of hearing loss. Based on the evidence described above, the Board finds that the evidence of record preponderates against the Veteran's claim for a compensable rating for his service-connected bilateral hearing loss at any time during the appeal period. REASONS FOR REMAND Service connection for glaucoma The Veteran seeks service connection for glaucoma, claimed as glaucoma of the right eye. He was afforded a VA eye conditions examination in September 2012, at which time the examiner opined that the Veteran never actually had glaucoma. Notably, the examiner stated in his report that the Veteran's private eye treatment records were unavailable for his review. Further, in finding that the Veteran never had glaucoma, the examiner stated that he had no information that the Veteran's intraocular pressure (IOP) had ever been greater than 16 in either eye. However, the claims file at that time included private treatment records. These records contain at least one note inconsistent with the VA examiner's findings. Specifically, a January 18, 2005, letter from Dr. G.S., MD, states that he examined the Veteran on that day and that his left eye IOP was 17. Thus, the examiner's conclusion that the Veteran never met the diagnostic criteria for glaucoma appears to be contradicted by information contained in his private treatment records. A new VA examination is needed for an examiner to review all available pertinent private eye treatment records and determine the nature of the Veteran's claimed glaucoma. Specifically, the examiner should clarify whether the Veteran has a diagnosis of glaucoma at any time during the appeal period and should provide an etiological opinion if he or she concludes that the Veteran has a current diagnosis of glaucoma. In addition, efforts should also be made to obtain any additional private eye treatment records that may exist but are not associated with the claims file in order to ensure the examiner conducts a complete review of all relevant medical evidence. Accordingly, this matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who treated him for his glaucoma or other eye conditions. Previously unobtained records should be sought from all identified providers dating from the earliest date the Veteran ever treated with them to present. Make two requests for all authorized records, unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any eye disability, to include glaucoma, that he may have. The examiner is asked to review the Veteran's claims file, including this Remand and all pertinent private and/or VA treatment records; identify any diagnosed eye condition with which the Veteran has been diagnosed during the pendency of the appeal (from June 2012 to present); and respond to the following question for each diagnosed condition: Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed eye disorder had its onset during active service or was otherwise related to active service? If the Veteran is not found to have a diagnosis of glaucoma, a thorough explanation is needed as to why prior private diagnoses of such are either incorrect or that the condition has since resolved. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.