Citation Nr: 21066896 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 20-07 645 DATE: November 2, 2021 ORDER The previously denied claim for service connection for a back condition is reopened. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for right foot numbness is remanded. Entitlement to service connection for left foot numbness is remanded. Entitlement to service connection for vertigo, as secondary to service-connected tinnitus and/or hearing loss, is remanded. FINDINGS OF FACT 1. Service connection for a back condition was denied in an unappealed March 2018 rating decision. 2. Since the March 2018 rating decision, the evidence submitted to reopen the claim for service connection for a back condition is new and material. 3. The preponderance of the evidence of record is against finding that the Veteran has had a respiratory disability, to include COPD, at any time during or approximate to the pendency of the claim. 4. Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 5. Throughout the entire initial rating period on appeal, the Veteran has received the maximum schedular rating possible for the service-connected tinnitus. The Veteran's tinnitus disability picture does not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection for a back condition are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial 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. 4. The criteria for a disability rating in excess of 10 percent for the service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1970 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2018 and July 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). New and Material Evidence 1. The request to reopen the claim for service connection for a back condition Generally, if a claim of entitlement to service connection has been previously denied and that decision has become 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim in light of the VA's duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service connection for low back pain was denied in a March 2018 rating decision because the evidence did not show a current disability. The Veteran did not submit a notice of disagreement. In support of his request to reopen this claim, the Veteran submitted copies of service treatment notes showing treatment for left hip and back pain. However, this evidence is not "new" because it had been previously submitted and considered by VA. Since the Veteran did not perfect an appeal of the decision within one year; the March 2018 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the March 2018 rating decision, the Veteran has submitted private physical therapy treatment records which show a current disability. Specifically, December 2017 physical therapy notes show a diagnosis of unspecified back pain with sciatica. The evidence is "new" because it had not been previously submitted and considered by VA, and is also material as it relates to an unestablished fact necessary to substantiate the claim - a current disability. Accordingly, new and material evidence has been received. The request to reopen the claim of entitlement to service connection for a back disorder is granted. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further development of this claim is necessary to allow the Board to make a fully informed decision. Accordingly, the reopened claim will be further discussed in the REMAND portion of the decision below. Service Connection 2. Entitlement to service connection for chronic obstructive pulmonary disease The Veteran seeks entitlement to service connection for a respiratory condition, claimed as chronic obstructive pulmonary disease (COPD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For the reasons that follow, service connection for COPD is not warranted. The competent medical reflects that the Veteran does not have a current chronic respiratory disability, specifically COPD. A necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board has reviewed the medical records and has found no diagnosis of a chronic respiratory condition, to include COPD. The Board notes that a claim for service connection for a cardiovascular condition was denied in May 2009. Since the Veteran previously filed a claim for service connection for a cardiovascular condition and has not clearly requested to reopen his prior claim, the Board has not restyled this issue to include any potentially relevant cardiovascular claims. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). A March 2009 VA examination showed the Veteran reported a history of shortness of breath. The VA examiner diagnosed coronary artery disease, but made no mention of a respiratory disease or process. VA treatment notes similarly show a history of coronary artery disease, with no mention of a respiratory disease or COPD. While the Veteran is competent to report respiratory symptoms, he does not possess the medical expertise necessary to diagnosis a chronic respiratory condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the competent evidence fails to reflect a current chronic respiratory condition, to include COPD. Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability, and in this case, there is no current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for COPD is not warranted. Increased Rating 3. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for 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). An April 2018 VA examination reveals that the Veteran reported trouble hearing, and that others told him that he had the TV up too loud. He reported that his tinnitus was distracting during conversation. 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: April 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 50 50 55 51.25 96% LEFT 45 50 60 60 53.75 100% A July 2018 VA examination reveals that the Veteran reported that he turned his TV too loudly for others and had occasional vertigo. 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: July 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 35 40 40 35 100% LEFT 25 30 45 45 36.25 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. 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 noncompensable 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 hearing and turning the TV up too loudly. 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). 4. Entitlement to a disability rating in excess of 10 percent for tinnitus The Veteran seeks a disability rating in excess of 10 percent for tinnitus. The issue of consideration of an extraschedular rating was raised by the August 2020 brief. As an initial matter, the Veteran's tinnitus is currently rated 10 percent pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, for recurrent tinnitus. This is the highest schedular rating available. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. An April 2018 VA examination reveals that the Veteran reported that his tinnitus was distracting during conversation. A July 2018 VA examination reveals that the Veteran reported that he turned his TV too loudly for others and had occasional vertigo. In his July 2019 notice of disagreement, the Veteran reported vertigo that "comes and goes." Based on the evidence above, a rating in excess of 10 percent for the Veteran's tinnitus is not warranted. While it is true that vertigo is not contemplated by the disability rating criteria for tinnitus or hearing loss, the Board notes that vertigo is a disability subject to secondary service connection or a separate compensable disability rating, and the Veteran may still pursue entitlement to service connection for vertigo using the schedular rating devices. See Long v. Wilkie, 33 Vet. App. 167 (2020); 38 C.F.R. § 4.87, Diagnostic Code 6204 (peripheral vestibular disorder is a condition subject to service connection consideration and eligible for evaluation under the General Rating Schedule); 38 C.F.R. § 3.310. For the sake of clarity, the Board has elected to bifurcate this matter pursuant to Bailey v. Wilkie, 33 Vet. App. 188 (2021), and the Veteran's claim for service connection for vertigo shall be treated as a separate issue which will be further discussed in the REMAND portion of the decision below. In sum, the Veteran's claim for an extraschedular rating for his service-connected tinnitus based on the symptoms of vertigo must be denied as exceptionality has not been shown. The first Thun step has not been satisfied, as the Veteran's reports of vertigo, alleged as symptoms of his service-connected tinnitus and/or hearing loss, could have been addressed using the conventional schedular rating devices. Neither the Veteran nor the representative have identified any other symptoms subjectively associated with the Veteran's tinnitus that warrant extraschedular consideration. In reaching the above-stated conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher schedular rating or an extraschedular rating, that doctrine is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a disability rating in excess of 10 percent for tinnitus is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran seeks service connection for a back condition. Physical therapy notes indicated treatment for unspecified back pain and sciatica. The Veteran's service treatment records show complaints and treatment related to a low back problem. Given the forgoing, the Board finds that the Veteran has a current disability that may be related to service. VA has a duty to provide the Veteran with an examination to evaluate the nature and etiology of his condition. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is required to schedule the Veteran for a VA examination. 2. Entitlement to service connection for right foot numbness is remanded. 3. Entitlement to service connection for left foot numbness is remanded. The Veteran seeks service connection for bilateral foot numbness. The Veteran asserts that his service-connected ankle condition causes numbness in both feet, along with numbness in both toes. A VA examination is needed to properly evaluate the Veteran's claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran has reported bilateral lower extremity radiculopathy symptoms related to his low back condition extending to his feet and toes of both legs. To the extent the Veteran's symptoms of foot numbness may be related to his reported lumbar radiculopathy, a decision on the remanded issue of service connection for a low back condition could significantly impact a decision on the issues of left and right foot numbness. Therefore, the issues are inextricably intertwined. A remand of the claims for left and right foot numbness is required. 4. Entitlement to service connection for vertigo, as secondary to service-connected tinnitus and/or hearing loss, is remanded. The Board finds that the July 2018 VA examination report does not contain adequate information for rating purposes. There is no information in this examination report regarding whether there is objective evidence to support a diagnosis of vestibular disequilibrium. This information is necessary to determine whether a separate compensable rating would be appropriate for the Veteran's vertigo under Diagnostic Code 6204, which contemplates peripheral vestibular disorders and which requires objective evidence of a diagnosis of vestibular disequilibrium. See 38 C.F.R. § 4.87. Accordingly, the Veteran's claim must be remanded and he should be afforded the appropriate VA examination to determine whether he has a diagnosed peripheral vestibular disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his back condition. The examiner should review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any diagnosed back condition at least as likely as not related to service, including as the result of carrying rucksacks for years during active service? 2. Schedule the Veteran for a VA examination for his bilateral foot numbness. The examiner should review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the bilateral foot numbness at least as likely as not proximately due to his service-connected ankle disability? Is the bilateral foot numbness at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected ankle disability? 3. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has a diagnosed peripheral vestibular disorder based on objective findings that support the diagnosis that is the result of his service-connected tinnitus and/or hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If the examiner finds no objective evidence to support this diagnosis, he or she must specifically explain the basis for this finding. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.