Citation Nr: 21012008 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-63 751 DATE: March 3, 2021 ORDER A rating in excess of 10 percent for the service-connected bilateral hearing loss is denied. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a bilateral leg disability is granted. Service connection for a right leg disability is granted. Service connection for a left leg disability is granted. Service connection for a back disability is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connected bilateral hearing loss has been manifested by no worse than a Level XI hearing loss in his right ear and a Level I hearing loss in his left ear; an exceptional hearing loss pattern has not been shown in either ear. 2. An August 2010 Board of Veterans Appeals (Board) decision denied service connection for right and left leg disabilities. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. Thus, that decision became final. 3. New and material evidence raising the possibility of substantiating the claim for service connection for right and left leg disabilities has been received. 4. The Veteran began experiencing symptoms of a right leg disability while serving on active duty, and he has continued to experience symptoms since separating from service. 5. The Veteran began experiencing symptoms of a left leg disability while serving on active duty, and he has continued to experience symptoms since separating from service. 6. The Veteran began experiencing symptoms of a lower back disability while serving on active duty, and he has continued to experience symptoms since separating from service. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 10 percent for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. 2. The August 2010 Board decision that denied service connection for right and left leg disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence sufficient to reopen the claim for service connection for a right and left leg disability has been received. 38 U.S.C. § 5108, 38 C.F.R. § 3.156. 4. The criteria for service connection for a right leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978, from December 2000 to April 2001, from May 2002 to October 2002, and from February 2003 to July 2003. This matter comes before the Board on appeal from a June 2014 rating decision which denied the Veteran’s claim for a rating in excess of 10 percent for his bilateral hearing loss, denied his application to reopen the claim for service connection for a bilateral leg disability, and denied his claim for service connection for a back disability. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony has been associated with the claims file. Increased Rating – Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider 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 the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, 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. When an exceptional pattern of hearing loss exists, the hearing impairment is rated slightly differently. When the pure tone threshold at each of the four specified frequencies of 1,000, 2,000, 3,000 and 4,000 Hz is 55 decibels (dB) or more, an exceptional pattern of hearing impairment exists, and 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Here, in the current appeal, the Veteran presents with an exceptional hearing loss pattern. Throughout the period on appeal, the Veteran has received VA audiological examinations that complied with these criteria in April 2014 and August 2016. The Veteran also had an audiological examination with a private audiologist in August 2020. The results of the Veteran’s pure tone thresholds, in decibels, at the April 2014 examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 70 65 65 60 65 LEFT 15 25 50 55 36 The average pure tone threshold across 1000-4000 Hz in the Veteran’s right ear was 65 decibels and 36 (rounded down from 36.25) decibels in his left ear. His Maryland CNC speech recognition scores were 84 percent in his left ear but could not be determined in his right ear. The Veteran presents with an exceptional pattern of hearing loss for his right ear. Thus, using Table VIA, these findings indicate a designation of no worse than a Level V hearing loss for his right ear. Using Table VI for his left ear, these findings indicate a designation of no worse than a Level II hearing loss for his left ear. Under Table VII, these findings warrant a compensable rating of 10 percent, but no higher, for his bilateral hearing loss. 38 C.F.R. § 4.85. At the August 2016 VA examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 60 65 60 63 LEFT 10 25 50 55 35 The average pure tone threshold across 1000-4000 Hz in the Veteran’s right ear was 63 (rounded up from 62.5) decibels and 35 decibels in his left ear. His Maryland CNC speech recognition scores were 4 percent in his right ear and 96 percent in his left ear. These findings, using Table VI, indicate a designation of no worse than a Level XI hearing loss for his right ear and a Level I for his left ear. Under Table VII, these findings warrant a rating of 10 percent for the Veteran’s bilateral hearing loss. Id. (The exceptional hearing loss pattern illustrated in his right ear does not result in a higher evaluation.) At the private audiological examination in August 2020, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 70 65 65 65 66 LEFT 25 35 60 60 45 The average pure tone threshold across 1000-4000 Hz in the Veteran’s right ear was 66 (rounded down from 66.25) decibels and 45 decibels in his left ear. His Maryland CNC speech recognition scores were 28 percent in his right ear and 96 percent in his left ear. Using Table VI, these findings indicate a designation of no worse than a Level XI hearing loss for his right ear and a designation of no worse than a Level I hearing loss for his left ear. Under Table VII, these findings warrant a rating of 10 percent for the Veteran’s bilateral hearing loss. Id. (The exceptional hearing loss pattern illustrated in his right ear does not result in a higher evaluation.) Throughout the period on appeal, the Veteran has asserted that his hearing loss has gradually worsened. The Board acknowledges, and has considered, the Veteran’s description of the problems caused by his hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Unfortunately, the audiological examinations show that at no time during the appeal period has the Veteran’s bilateral hearing loss warrant a rating in excess of 10 percent. The Board in no way discounts the difficulties the Veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding based on application of the rating schedule to the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When doing so in this case, the results do not warrant a rating in excess of 10 percent. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Application to Reopen – Right and Left Leg Disabilities Generally, a final decision issued by the Agency of Original Jurisdiction (AOJ) may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Id. In determining whether evidence is new and material, the credibility of the newly present evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran’s claim for service connection for right and left leg disabilities was originally denied in a May 2007 rating decision. The Veteran appealed that decision to the Board. In an August 2010, decision, the Board denied service connection for right and left leg disabilities. The Veteran did not appeal that adverse determination, nor did he submit any additional evidence within a year following the decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the previous Board decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Since the August 2010 Board decision, the evidence added to the record includes the Veteran’s August 2020 Board testimony, a buddy statement from a fellow servicemember, and a buddy statement from his live-in partner. The Veteran’s testimony and the statement from his fellow servicemember detail the daily working conditions they experienced, which may have contributed to the Veteran’s bilateral leg disability. His partner reported witnessing the pain and numbness the Veteran experienced in his legs when he returned from deployment. Further, the Veteran has also submitted the results of a motor nerve conduction study of his legs performed by a private practitioner in October 2020. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims for service connection, as it provides a potential nexus between the Veteran’s disability and his service. Thus, to this extent, the appeal is granted. Service Connection 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. While the disease does not need to be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Right and Left Leg Disabilities VA treatment records show a current diagnosis of peripheral neuropathy of both lower extremities. Thus, the current disability prong of this claim for service connection has been met, and the question becomes whether this current disability is associated with the Veteran’s active duty. The Veteran’s service treatment records reveal that he reported bilateral leg pain at a physical examination in 2001. He stated that, after working long hours standing watch on boats, he began to experience leg and knee pain. Since separation from service he has sought treatment for leg pain and numbness in both legs. His private and VA treatment records show he has consistently reported his bilateral leg pain and numbness began in service. The Veteran was afforded a VA examination in August 2009, at which time he reported experiencing tingling, numbness, and paresthesia sensation in both legs, while he was deployed. He stated that the symptoms were initially mild and would come and go but that the pain and numbness in both legs and feet has become constant since separation from service. The examiner diagnosed mild peripheral neuropathy of both lower extremities but stated that the etiology of the neuropathy was unclear. As there was no record of peripheral neuropathy in the service records, the examiner opined that it was less likely than not that this bilateral leg disability was related to service. No further rationale was provided. In May 2010, the Veteran’s private physician submitted a letter confirming the Veteran’s history of bilateral leg pain and tingling and opining that his bilateral leg disability was more likely than not due to his military service. The physician did not provide a rationale to support this conclusion. At his August 2020 hearing, the Veteran testified about his daily working conditions while deployed in 2000, 2002, and 2003. He explained that he was Captain of a gunboat with Inshore Boat Unit 24, which required him to be standing for many hours at a time, with only a post to lean against for support. He stated that the rough waters would frequently cause his back to be slammed against that post while working, which he believes resulted in his current bilateral leg disability. He testified that it was during his first deployment, around 2000, when he began experiencing pain and numbness in both legs. His testimony is supported by a buddy statement provided by A.D., a crewmember who served with the Veteran on Inshore Boat Unit 24. A.D. reported very rugged working conditions which required that they work 24 hours at a time. He explained that the boat had no seats for the crew and there was very little cushion or support for their bodies, except for a steel pipe they could lean against. A.D. explained that the force of being slammed against that pipe in a combat-loaded life jacket, weighing 40 pounds, was extremely painful and that he had personally witnessed the Veteran being slammed into that pipe every day. Additionally, the Veteran’s live-in partner provided buddy statements. She explained that she witnessed the Veteran experiencing leg pain and numbness when he returned from deployment. The Board recognizes that the August 2009 VA examiner opined that the Veteran’s bilateral leg disability was less likely than not caused by, or a result of, his military service. While the Board cannot ignore or disregard the VA examiner’s medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the examiner based his opinion on the lack of treatment records for peripheral neuropathy while the Veteran was in service. However, he did not address the Veteran’s complaints of bilateral leg pain during service or his history of symptoms since service. Thus, in rendering the negative nexus opinion, the examiner ignored the Veteran’s competent lay reports of the onset and history of his symptoms. As such, the Board affords the opinion minimal, if any, probative weight. In light of the above, the Board finds the Veteran’s competent, credible reports of his bilateral leg disability symptoms to be more probative than the August 2009 VA examiner’s negative nexus opinion which did not consider all relevant evidence. The Veteran’s lay statements are further supported by the provided buddy statements and the 2010 private physician opinion. Thus, the weight of the evidence supports the finding that his current bilateral leg disability onset in active service. Thus, service connection for his right and left leg disability is warranted. Back Disability The Veteran seeks service connection for a back disability. His service treatment records are silent for any complaints of back pain or a back injury. However, both his private and VA treatment records show that he has consistently reported back pain since separation from service. In May 2015, the Veteran sought treatment for his back disability with a chiropractor. The chiropractor’s assess disc herniation/protrusion, lumbar disc disease, lumbar facet syndrome, and arthropathy of lumbar joints. He opined that the Veteran’s back disability appeared to be a repetitive motion injury, with subsequent early degenerative changes due to the initial causation. He also opined that the repetitive motion injury could have been caused by the Veteran’s service as a boat captain, due to the bouncing and pound of the boat and heavy lifting. In November 2016, the Veteran was afforded a VA examination. He reported that his back pain began while he was deployed overseas as a boat captain, around 2000. He explained that he believes that the constant pounding by waves while in the boat caused wear and tear of his back. The examiner confirmed his diagnosis of spinal stenosis, lumbar spondylosis, and left lumbar radiculopathy. Further, imaging studies of his thoracolumbar spine showed arthritis. Thus, the disability prong of this claim for service connection has been met. However, the examiner opined that the Veteran’s back disability was less likely than not caused by service based on the lack of service treatment records for back pain or a back injury. In August 2020, the Veteran testified at a Board hearing about his daily working conditions while deployed in 2000, 2002, and 2003. He explained that he was Captain of a gunboat with Inshore Boat Unit 24, which required him to be standing for many hours at a time, with only a post to lean against for support. He stated that the rough waters would frequently cause his back to be slammed against that post, which he believes caused his back disability. He testified that it was during his first deployment, around 2000, when he first began experiencing back pain. The Veteran has also provided several buddy statements to support his claim. VA has received statements from R.C. and A.D., both fellow servicemen who served with the Veteran in Inshore Boat Unit 24. Both statements described the working conditions on the boat and explained that there was no shock-cushioned seating on board for the crew. As a result, rough waters caused crewmembers to be slammed into pipes and other hard surfaces on board. A.D. stated that he had personally witnessed the Veteran being slammed into a pipe daily, while R.C. reported that these conditions caused injuries and back pain in many crewmembers. The Veteran’s live-in partner also provided a statement in which she described witnessing the Veteran experiencing back pain after deployment. She explained that, since his service, he has sought physical therapy, chiropractic treatment, and even acupuncture to help with his back pain. The Board recognizes that the November 2016 examiner opined that the Veteran’s back disability was less likely than not caused by, or a result of, his military service. While the Board cannot ignore or disregard the VA examiner’s medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the examiner only considered the medical evidence, and not lay evidence, regarding the history of the Veteran’s symptoms. Thus, in rendering the negative nexus opinion, the examiner ignored the Veteran’s competent lay reports of the onset and history of his symptoms. As such, the Board affords the opinion minimal, if any, probative weight. In light of the above, the Board finds the Veteran’s competent, credible reports of his back disability symptomatology to be more probative than the November 2016 VA examiner’s negative nexus opinion which did not consider all relevant evidence. Thus, the weight of the evidence supports a finding that the Veteran’s back disability symptoms onset in service and have continued since then. Service connection for a back disability is warranted, as it is a current disability that onset in the Veteran’s active service. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.