Citation Nr: 21012578 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-05 847 DATE: March 4, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a non-initial compensable rating for a bilateral eye disability, to include diplopia, is remanded. FINDINGS OF FACT 1. In a September 2006 rating decision, the Veteran’s claim for service connection for bilateral hearing loss was denied. The decision became final. 2. Evidence added to the record since the final September 2006 decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Appellant’s claim of entitlement to service connection for bilateral hearing loss. 3. The preponderance of the evidence of record is against finding that the Veteran had bilateral hearing loss for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to December 1982. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a May 2013 rating decision. The Veteran passed away in October 2011 during the pendency of the appeal; the Appellant is the Veteran’s surviving spouse. Procedurally, the claims were denied in a September 2019 Board decision. The decision was subsequently vacated by the Court of Appeals for Veterans Claims in a September 2020 Order granting the parties’ Joint Motion for Partial Remand. In the Motion, the parties found the Board provided inadequate reasons and bases for finding that a February 2011 treatment record showing hearing loss was not material, and for improperly interpreting the findings of a May 2011 eye examination pursuant to Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion). The claims were remanded and have now returned to the Board. 1. New and material evidence – bilateral hearing loss The Veteran was originally denied service connection for hearing loss in a September 2006 rating decision based on a lack of diagnosed hearing loss for VA purposes. The Veteran further did not submit any relevant evidence or argument within one year of the September 2006 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). Thereafter, the Veteran sought to reopen the claims in March 2011. The claims were again denied in May 2013 because the evidence still did not show a diagnosed disability for VA purposes. Pursuant to 38 C.F.R. § 3.156 (a), a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156 (a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Here, new medical records were added to the claims file that were not of record at the time of the September 2006 decision. A November 2010 record reflects complaints of hearing problems, and the assessment noted long-standing hearing loss. A February 2011 record states the Veteran had hearing loss. The Board finds this evidence to be material. The severity of his hearing loss is still unclear; however, considering Shade and Justus, the evidence does reflect a diagnosed disability, which would relate to an unestablished fact necessary to substantiate the claim. Thus, new and material evidence having been received, the claim is reopened. 2. Service connection - bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of VA service connection and compensation, a hearing loss disability is determined through audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. Service connection may not be found for disability due to hearing loss or impaired hearing unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Reviewing the evidence of record, hearing was within normal limits for VA rating purposes in service, and the separation examination indicates no hearing loss. In the January 2006 VA examination, the Veteran’s puretone thresholds were not 40 dB or greater or 26 dB or greater for at least three frequencies. His speech recognition scores were 96 percent bilaterally. Thus, his hearing loss at the time was within normal range for rating purposes. As explained above, later treatment records do reflect a diagnosis of hearing loss; however, there is nothing in the evidence of record showing hearing loss pursuant to § 3.385. Given the Veteran’s unfortunate passing during the pendency of the appeal, VA has no means of gaining this information. A listed diagnosis, without more, would likely be insufficient information for a medical examiner to decipher in terms of audiometric data, and the Board finds such an attempt would be futile. In sum, the preponderance of the evidence is against a finding of hearing loss for VA purposes at any time during the pendency of the appeal. The Appellant’s claim is denied. REASONS FOR REMAND 1. Increased rating – eye disability The Appellant is currently assigned a noncompensable rating for a bilateral eye disability; an increased rating claim was filed March 17, 2011. The Veteran underwent a VA examination in May 2011. The Veteran endorsed diplopia in the extreme gaze and primary gaze, and he stated it has worsened since his last evaluation. Regarding his medical history, the examiner stated the work-up for diplopia was fairly inconclusive. His corrected distance visual acuity was 20/20 in the right eye and 20/30 in the left. There was diplopia on “extreme gaze” and “worsened on prolonged upgaze.” Under Diagnostic Code 6090, diplopia in the central field (20 degrees or less) of any of the four major quadrants equates to 5/200 visual acuity. From 21 to 30 degrees, diplopia in the down quadrant equates to 15/200 visual acuity, diplopia in either lateral quadrant equates to 20/100 visual acuity, and diplopia in the up quadrant equates to 20/70 visual acuity. From 31 to 40 degrees, diplopia in the down quadrant equates to 20/200 visual acuity, diplopia in either lateral quadrant equates to 20/70 visual acuity, and diplopia in the up quadrant equates to 20/40 visual acuity. 38 C.F.R. § 4.79. The Board finds that a licensed optometrist or ophthalmologist may be able to interpret the May 2011 examination results in terminology consistent with the rating criteria. Thus, remand is warranted to obtain a VA opinion to assist the Board with adjudicating the claim. The matter is REMANDED for the following action: Obtain a medical opinion to ascertain, to the extent possible, the severity of the Veteran’s diplopia in the May 2011 examination in accordance with the rating criteria. Specifically, the examiner is requested to consider the findings of “extreme gaze” and “worsened on prolonged upgaze” along with the other findings in the examination and state if he/she is able to describe in the context of quadrants and degrees described in Diagnostic Code 6090. If the examiner is unable to do so, he/she is   requested to explain why that is so with sufficient detail. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.