Citation Nr: 22017134 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-50 075 DATE: March 24, 2022 ORDER New and material evidence not having been received, the petition to reopen a claim for service connection for a lumbar spine disorder is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. An unappealed December 2015 rating decision denied the claim for service connection for a lumbar spine disorder. 2. The evidence associated with the claims file subsequent to the December 2015 rating decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disorder. 3. Throughout the period on appeal, the Veteran's bilateral hearing loss was manifest by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. The December 2015 rating decision that denied entitlement to service connection for a lumbar spine disorder is final; new and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to May 1980. This appeal to the Board of Veterans' Appeals (Board) is from October 2016 and August 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). On his September 2017 and June 2018 VA Form 9s, Substantive Appeal to this Board, the Veteran requested a hearing before a Veterans Law Judge of this Board. The Veteran was notified of his scheduled hearing but failed to appear for his hearing without providing any justifiable reason or explanation ("good cause"). As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Claim to Reopen Lumbar Spine Disorder The Veteran seeks reopening the previously denied claim of entitlement to service connection for a lumbar spine disorder. Specific argument in support of this appeal has not been provided. As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision 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. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's original claim for entitlement to service connection for a lumbar spine disorder was originally denied in a rating decision decided in December 2015. Specifically, the December 2015 rating decision indicated that the lumbar spine disorder was denied based on a finding that the condition was not incurred in or aggravated by his military service. In this regard, the AOJ indicated that there was no evidence of the condition in his service treatment records which linked a current condition to his military duty; in the absence of medical evidence showing a disease or injury while on active duty and a current chronic condition, entitlement to service connection was not warranted. As a result, his claim was denied. Evidence considered in the December 2015 rating decision included service treatment records, post-service treatment records, the claim, a September 2015 VA Form 21-4138 Statement in Support of Claim, and correspondence from VA. In December 2015, the Veteran was advised of the decision and his appellate rights. The Veteran timely submitted a Notice of Disagreement (NOD) in May 2016. VA issued a Statement of the Case (SOC) in September 2016; however the Veteran did not perfect his appeal to the Board and the December 2015 rating decision became final. Therefore, the December 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from February 2007 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran filed the instant petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disorder that was received by VA in July 2017. Additional evidence received since the December 2015 rating decision includes continuing post-service VA treatment records and Social Security Administration (SSA) records, inclusive of private treatment records. The Board finds that while some of the newly received evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claim was previously denied. Specifically, the evidence does not show that the Veteran's lumbar spine disorder is etiologically related to his active service. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement service connection for a lumbar spine disorder. Accordingly, reopening of such claim is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Increased Rating Bilateral Hearing Loss The Veteran asserts that his hearing loss is more severe than contemplated by his current 0-percent, or noncompensable, rating. At the outset, the Board notes that in January 2020 while this appeal was pending before the Board, the Veteran submitted a claim for entitlement to a total disability rating based on individual unemployability (TDIU). On his TDIU application, the Veteran indicated that each of his service connected disabilities, so including his hearing loss, contributed to his inability to work. The RO interpreted this as a claim for a TDIU, as well as a claim for an increased rating for hearing loss. The Veteran was then afforded a VA audiology examination in March 2020. In an April 2020 rating decision, the RO denied entitlement to a compensable rating for hearing loss. The April 2020 rating decision indicated that the RO had reviewed all the relevant evidence in the record to date, including the March 2020 VA audiology examination as well as the Veteran's SSA records and updated VA treatment records. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). However, that issue will not be adjudicated as part of this appeal stream, as it is part of a separate AMA appeal. Accordingly, the Board will not assert jurisdiction over the issue of entitlement to a TDIU and it will be the subject of a separate decision. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A June 2015 VA examination reveals that the Veteran stated that he has to ask people to repeat themselves when speaking to him. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). While this examination occurred prior to the Veteran's filing of this claim, it falls within the one-year "look back" period prior to the April 29, 2016 increased rating claim. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 60 70 43.75 100% LEFT 25 25 65 75 47.5 100% Applying the 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 designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0-percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran then underwent a VA audiology examination in October 2016 at which time he again reported that he has to ask people to repeat themselves. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 30 60 60 41.25 96% LEFT 20 35 60 70 46.25 96% Again, applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear, equating to a 0-percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran's next VA audiology examination was on February 23, 2018, at which time he stated that the functional impact of his hearing loss is that his wife often cannot hear him. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 80 70 80 77.5 88% LEFT 55 60 80 80 68.75 88% Unfortunately, these testing results were found to be invalid for rating purposes by the examiner. While an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears, the examiner noted that the pure tone threshold test results were not valid for rating purposes. The examiner explained that the Veteran's speech scores do not coincide with the pure tone scores, and a positive Stenger test in the Veteran's right ear at 1000Hz and 2000Hz indicates elevated thresholds. As such, these test results cannot be used to support a higher rating based on a showing of an exceptional pattern of hearing loss. Most recently, the Veteran underwent a VA audiology examination in March 2020. At this examination, he continued to report that his hearing loss causes him to ask people to repeat themselves. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 70 75 80 67.5 86% LEFT 50 75 80 85 72.5 84% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0-percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The valid VA examinations support that the Veteran's hearing loss has worsened over time, but not to a level that warrants a higher, compensable rating. As noted above, the Veteran's hearing loss was shown to be, at worse, Level III in each ear. Those results fall within the schedular criteria for a noncompensable rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran requests that people repeat themselves when speaking to him. The Veteran is competent to report difficulty with his hearing; 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In assessing the severity of the bilateral hearing loss, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra. However, the criteria needed to support a rating higher than what was assigned here as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether a staged rating under Hart v. Mansfield, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra. Accordingly, the Board finds that a compensable rating for bilateral hearing loss is not warranted and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.