Citation Nr: 21014728 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-16 284 DATE: March 15, 2021 ORDER New and material evidence having been received, entitlement to service connection for bilateral hearing loss is reopened. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Evidence received since the October 2008 rating decision is new and material regarding the issue of service connection for bilateral hearing loss. 2. For the entire rating period on appeal, bilateral tinnitus has been assigned the maximum schedular evaluation. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied the service connection for hearing loss is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1104. 2. The criteria for reopening the Veteran's previously denied claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to March 1972. These matters are on appeal from an April 2015 rating decision. In accordance with an April 2019 Board remand, treatment records were obtained and associated with the clams file so they may be considered in deciding this appeal. See Stegall v. West, 11 Vet. App. at 268. After consideration of this evidence and these facts, the Board finds that there was substantial compliance with the Board directives as the underlying purpose of the remand was to obtain competent evidence regarding the claims for bilateral hearing loss and tinnitus. As such, the Board finds the purposes of the development directed in the remand have meet met and, as such, there was substantial compliance with the Board's instructions. See Stegall, 11 Vet. App. 268, 270-71 (1998). 1. New and Material Evidence. The Veteran seeks to reopen the previously denied claims of service connection for bilateral hearing loss. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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). The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 - 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran seeks to reopen the previously denied claims for service connection bilateral hearing loss. The claim was initially considered and denied by the RO denied in an October 2008 rating decision. The Veteran did not initiate appeals of either decision denying service connection, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed to reopen the claim for service connection for bilateral hearing loss in January 2015. The claim was subsequently considered and denied in an April 2015 rating decision. The Veteran filed a timely notice of disagreement and this appeal followed. Since the October 2008 rating decision, additional evidence has been received in the form of VA treatment records, statements from the Veteran, and private treatment records. The VA and private treatment records, as well as, the statements from the Veteran are new because they have not been previously submitted. The newly submitted evidence is also material because it pertains to the basis for the prior denial, that is, that the Veteran's bilateral hearing loss was not caused or aggravated by military service and raises a reasonable possibility of substantiating the claim. Specifically, the Veteran has reported his hearing has worsened and submitted audiometric testing. For these reasons, the Board finds that new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. See 38 C.F.R. § 3.156(a). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 2. Increased evaluation for tinnitus The Veteran contends generally that his service-connected tinnitus warrants a higher rating. This disability is currently rated at the maximum schedular award of 10 percent under 38 C.F.R. § § 4.87, Diagnostic Code (DC) 6260. Tinnitus is evaluated under 38 C.F.R. § § 4.87, DC 6260 which stipulates that only a single evaluation for recurrent tinnitus will be assigned-whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § § 4.87, DC 6260, Note 2; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA’s longstanding interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). Accordingly, the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The 10 percent rating assigned for the Veteran’s service-connected tinnitus is the maximum (and only) rating provided under DC 6260 for tinnitus. As such, the Veteran’s claim for an increased rating for tinnitus is also claim for an extraschedular rating. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Board finds that the Veteran’s claim for an initial (extraschedular) rating in excess of 10 percent for tinnitus does not meet the first prong of Thun. Ringing in the ears is the functional effect of tinnitus and is contemplated by the tinnitus regulations. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017); see also Rossy v. Shulkin, No. 16-0720 (Dec. 13, 2017) (affirming a Board decision that had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § § 4.16 ). Thus, his reported symptoms are the very symptoms considered in the rating criteria. Further, the Veteran and his representative have not reported or described symptoms or functional effects related to tinnitus that are not contemplated by the rating schedule for evaluating the disability. Specifically, the evidence is negative for factors such as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. Here, the extraschedular rating request was only considered raised by the record because the Veteran was seeking an increased rating when the maximum schedular rating had been provided. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran’s tinnitus, and referral for consideration of an extra-schedular evaluation is not warranted. REASONS FOR REMAND 1. Bilateral Hearing Loss is Remanded. The Veteran contends he has a bilateral hearing loss disability as a result of noise exposure during service. The Veteran has submitted a July 2014 private audiological examination. The United States Court of Appeals for Veterans Claim (Court) has found that the Board can interpret audiometric graphs. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise). However, in this case, the Board is unable to interpret the hearing examination because in addition to a graph, it presents a series of numeric readings that are beyond the Board’s expertise. Further, it has been almost 13 years since the Veteran underwent a VA examination for hearing loss. While the passage of time alone does not warrant a new examination, given the Veteran's submission of the private examination and complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Associate any VA treatment records since September 2017 with the electronic claims file. 2. Schedule the Veteran for a VA audiology examination. The Board notes that the Veteran has indicated he lives over 200 miles from a VA facility. Any assistance available in obtaining the examination should be provided and any effort to assist the Veteran in obtaining the examination should be documented in the claims file. After reviewing the claims file, the VA examiner should offer the following opinions: a) Ask the VA audiologist to attempt to interpret the July 2014 private audiogram. The examiner should note the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and provide the pure tone threshold averages, if feasible. If the examiner is unable to interpret the graphs and/or determine whether the Maryland CNC test was used, he or she should explain why the determinations cannot be made. b) Is it at least as likely as not (50 percent or greater probability) that the any current hearing loss had onset in service, is otherwise related to his active service, or had its onset within one year of separation from service? The examiner should presume the Veteran was exposed to noise in-service. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.