Citation Nr: 22005652 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 17-61 097 DATE: February 2, 2022 ORDER Reopening of service connection for a left knee disorder, to include as secondary to the service-connected right knee disability, is granted. For the rating period on appeal from January 5, 2016, an increased (compensable) disability rating for the service-connected bilateral sensorineural hearing loss is denied. REMANDED Service connection for a neck disorder, to include as secondary to the service-connected back disability, is remanded. Service connection for a left knee disorder, to include as secondary to the service-connected right knee disability, is remanded. FINDINGS OF FACT 1. An October 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied service connection for a left knee disorder, finding no in-service left knee disorder and no relationship to the service-connected right knee disability. No new and material evidence nor Notice of Disagreement was received within a year. 2. Evidence received since the October 2014 rating decision pertains to a possible relationship between the service-connected right knee disability and the left knee disorder. 3. For the rating period on appeal from January 5, 2016, the service-connected bilateral hearing loss is manifested by no worse than Level II in the right ear and Level IV in the left ear pursuant to Table VI with speech recognition of 88 percent in the right ear and 80 percent in the left ear. CONCLUSIONS OF LAW 1. The October 2014 rating decision denying service connection for a left knee disorder became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the October 2014 rating decision is new and material to reopen service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. For the rating period on appeal from January 5, 2016, the criteria for an increased (compensable) disability rating for the service-connected 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from September 1971 to March 1975 and from June 1975 to December 1992. The instant case is on appeal from an April 2016 VA RO rating decision that, in pertinent part, denied service connection for a neck disorder, found new and material evidence had been submitted for a left knee disorder and denied the claim for service connection for a left knee disorder on the merits, and denied an increased (compensable) disability rating for left ear sensorineural hearing loss while continuing to deny service connection for right ear sensorineural hearing loss. During the pendency of the appeal, service connection for right ear sensorineural hearing loss was granted and the increased rating issue became that of bilateral sensorineural hearing loss. The Veteran testified at a July 2021 Board of Veterans' Appeals (Board) hearing. A copy of the hearing transcript has been associated with the claims file. Reopening Legal Criteria Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. Accordingly, the first determination is whether a final decision has been reached. 38 U.S.C. § 7105. If there is a final decision, then the question becomes whether new and material evidence has been presented or secured with respect to a claim that has been disallowed. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). When the veteran seeks to reopen a claim based on new evidence, VA must first determine whether the evidence is "new" and "material." Evidence must be both new and material. See Smith v. West, 12 Vet. App. 312 (1999). 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. It must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the received evidence is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to credibility no longer applies. Id. at 513. 1. Reopening of Service Connection for a Left Knee Disorder is Granted. An October 2014 VA RO rating decision denied service connection for a left knee disorder, finding no evidence of an in-service left knee disorder and no relationship to the service-connected right knee disability. No Notice of Disagreement nor new and material evidence was received within one year, so the rating decision became final. 38 U.S.C. § 7105. Evidence received since the October 2014 rating decision pertains to a possible secondary relationship between the service-connected right knee disability and the left knee disorder. The evidence reflects a June 2016 letter from a VA treating physician that states that the Veteran has disabling right knee pain due to degenerative changes or osteoarthritis that has required him to overuse his left knee, resulting in similar degenerative changes to the left knee. The evidence is new, in that it was not before previous adjudicators. It is material, in that it pertains to the possible existence of a secondary relationship between the left knee disorder and the service-connected right knee disability. See 38 C.F.R. § 3.156(a). Accordingly, new and material evidence has been received to reopen service connection for a left knee disorder. Rating Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of ratings with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85; Diagnostic Code 6100. Hearing tests will be conducted without hearing aids and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived from the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations of Level I through XI are assigned by application of Table VI, in which the percentage of speech discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII for a percentage rating. A puretone threshold average, as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86 (patterns of exceptional hearing loss), to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA (38 C.F.R. § 4.85(d)). Where puretone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a) (describing an exceptional pattern of hearing impairment). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher number of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b) (describing another exceptional pattern of hearing impairment). 2. An Increased (Compensable) Disability Rating for the Bilateral Hearing Loss is Denied. On January 5, 2016, the Veteran filed a claim for an increased rating for hearing loss (from a noncompensable rating). At that time, the left ear hearing loss was service connected but the right ear hearing loss was not. During the pendency of the claim, in a May 2018 rating decision, the RO granted service connection for the right ear hearing loss and assigned the bilateral sensorineural hearing loss disability a 0 percent (noncompensable) rating. The Veteran appeals for a higher (compensable) disability rating. At a July 2021 Board hearing, the Veteran stated that without hearing aids it is challenging to hear, particularly in crowded places, that if he is in a crowded place like the grocery store or a mall he just hears the background noise, and that he does not hear someone who is coming up from behind him. The record reflects three audiometric test results during the rating period on appeal. In January 2016, the Veteran participated in a VA examination to help determine the current level of hearing impairment. The January 2016 audiometric test results are as follows: January 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 25 35 30 26 96 LEFT 20 45 50 50 41 100 Applying the test 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 designations to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. The criteria for rating hearing loss based on an exceptional hearing pattern (38 C.F.R. § 4.86) have not been met. In February 2018, the Veteran participated in another VA examination, which had the following audiometric test results: February 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 35 45 55 39 88 LEFT 35 60 65 70 58 80 Applying the test results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. The criteria for rating hearing loss based on an exceptional hearing pattern (38 C.F.R. § 4.86) have not been met. The Veteran has provided a VA treatment record from August 2021 that yields the following results: August 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 45 45 35 *** LEFT 20 45 55 60 45 *** The "***" reflects the fact that the VA treatment record did not use the Maryland CNC word list; accordingly, the speech recognition thresholds from that VA treatment record cannot be used. Instead, the Board will read forward the Maryland CNC results that are the most favorable to the Veteran, which are those from the February 2018 examination. Applying the test results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. The criteria for rating hearing loss based on an exceptional hearing pattern have not been met. As the weight of the evidence is against a higher (compensable) disability rating for the service-connected bilateral hearing loss, the appeal for a higher rating must be denied. REASONS FOR REMAND 3. Service Connection for a Neck Disorder is Remanded. 4. Service Connection for a Left Knee Disorder is Remanded. The instant appeal contains the issues of service connection for a neck disorder, including as secondary to the service-connected back disability, and service connection for a left knee disorder, including as secondary to the service-connected right knee disability. The file contains a June 2014 letter from the Social Security Administration (SSA) that grants disability compensation with an onset date of November 26, 2012. The SSA records could be relevant to the issues on appeal. The US Court of Appeals for Veterans Claims has held that, where a veteran receives SSA benefits that are based on the determination of disability, those records are potentially relevant and should be obtained. SSA records are relevant to a claim and VA must obtain them where either (1) there is an SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations giving rise to a reasonable belief that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 323 (Fed. Cir. 2010). (Continued on the next page) The issues of service connection for neck and left knee disorders are REMANDED for the following action: Request all SSA records and any supporting documentation. If no records exist, document that in the claims file. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.