Citation Nr: 21015447 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-16 686 DATE: March 17, 2021 ORDER New and material evidence has not been received and the claim to reopen a claim for service connection for a left knee disability is denied. New and material evidence has not been received and the claim to reopen a claim for service connection for a right knee disability is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. In a February 2008 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a left knee disability; the Veteran submitted new and material evidence in March 2008, which is within one year after notification of the February 2008 rating decision. 2. In a May 2010 rating decision, the RO denied service connection for the left knee; the Veteran appealed the May 2010 decision to the Board of Veterans Appeals (the Board). 3. In a January 2015 decision, the Board denied service connection for a left knee disability; the Veteran did not appeal the decision and the decision is final 4. Evidence associated with the record since the January 2015 Board decision is cumulative or redundant of evidence previously of record and does not a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 5. In a February 2008 rating decision, the RO denied service connection for a right knee disability; the Veteran submitted new and material evidence in March 2008, which is within one year after notification of the February 2008 rating decision. 6. In a May 2010 rating decision, the RO denied service connection for the right knee; the Veteran appealed the May 2010 decision to the Board. 7. In a January 2015 decision, the Board denied service connection for a right knee disability; the Veteran did not appeal the decision and that decision is final. 8. Evidence associated with the record since the January 2015 Board decision is cumulative or redundant of evidence previously of record and does not a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 9. The Veteran’s bilateral hearing loss is manifested at worst by Level II hearing in each ear. CONCLUSIONS OF LAW 1. New and material evidence has not been received and the claim for service connection for a left knee disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received and the claim for service connection for a right knee disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As will be discussed in detail below, the Veteran has presented his claims for service connection for a right knee disability and service connection for a left knee disability to the Board in a prior appeal. In that prior appeal, the Veteran appeared at a hearing before a Veterans Law Judge in December 2014 and a transcript of the hearing before the prior Veterans Law Judge is in the record. Service Connection 1. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability 2. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability If a claim of entitlement to service connection has been previously denied and that decision became 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 means existing evidence not previously submitted to agency decision-makers. 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 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claims of service connection for a left knee disability and service connection for a right knee in a February 2008 rating decision, finding that there was no evidence of an injury, event, or illness in service that resulted in a knee disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision. He did, however, submit new and material evidence within one year of the decision, i.e., March 2008. Specifically, the Veteran provided lay evidence of injuring both knees performing tasks in Vietnam and argued a scar noted in the separation examination is proof of the injury. See 38 C.F.R. § 3.156. The Veteran’s claim for service connection for both a left knee disability and a right knee disability were again denied in an October 2010 rating decision. The Veteran appealed the October 2010 rating decision to the Board. In February 2015, the Board denied the claims for service connection for the left knee and service connection for the right knee finding that the Veteran had not provided a sufficient medical nexus between his various service activities and the Veteran’s current left knee and right knee disabilities. The Veteran was provided notice of the Board division with an explanation of his appellate rights but did not appeal the Board’s decision. Therefore, the Board decision is final. See 38 C.F.R. §§ 20.1100 (2014). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence received since the February 2015 decision includes evidence that, while new, is not material to the claim. See 38 C.F.R. § 3.156. Instead, the Board finds the evidence received since the February 2015 Board decision is cumulative of evidence previously of record. This new evidence addresses how the Veteran believed his knee was injured in service and that he also had symptoms that continued to the present. See, e.g., July 2018 Veteran Statement; October 2019 Veteran Statement; October 2019 Notice of Disagreement. Similar assertions were previously considered by the Board in the February 2015 Board decision. Treatment records indicate the Veteran has received treatment of both knees including a total knee replacement for the left knee. The treatment records do not suggest that the Veteran has a right knee or a left knee disability, including the left knee replacement, due to service and does not raise a reasonable possibility of substantiating the claim for service connection for either knee. There is no evidence that is related to the reasons for the previous denial by the Board – i.e. a lack of nexus to service – that raises a reasonable possibility of substantiating the claim. In addition, there is no new evidence that the symptoms in either knee manifested to a compensable degree within one year after separation that is not cumulative of the evidence at the time of the Board’s prior denial. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the new evidence does not relate to an unestablished fact necessary to substantiate the claims for service connection for a left knee disability or service connection for a right knee disability it is not material to the claims. The evidence does not raise a reasonable possibility of substantiating either claim that the Veteran has a left or right knee disability arising from service. As a result, the claims for entitlement to service connection for a left knee disability and service connection for a right knee disability are not reopened. See 38 C.F.R. § 3.156. 3. Entitlement to a compensable rating for bilateral hearing loss Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability 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. See 38 C.F.R. § 4.3. Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). As demonstrated below in the October 2018 VA examination, no exceptional patterns of hearing are demonstrated and the VA examiner did not certify use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Therefore, 38 C.F.R. § 4.86 (exceptional patterns of hearing impairment) is not applicable. In an October 2018 VA examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 45 55 46 LEFT 35 55 50 60 50 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent in the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level II hearing loss in the left ear. Where hearing loss is at Level II in one ear and Level II in the other, a noncompensable rating is assigned under Table VII. The Board acknowledges that the Veteran believes that at all relevant times, the severity of his hearing loss is worse than the assigned ratings. Neither the VA examinations nor other evidence of record give rise to any audiological findings that would entitle him to higher ratings for his bilateral hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86 than those just discussed. The Veteran’s statements have been considered, including a pre-claim February 2016 report of some issues with communication. 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). As the assigned noncompensable evaluation reflects the actual degree of impairment shown since the date of the grant of service connection for the Veteran’s bilateral hearing loss, the preponderance of the evidence is against a compensable rating for hearing loss. In this case, the testing shows noncompensable hearing loss. As such, the claim is denied. ERIC MINE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.