Citation Nr: 18160651
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-14 426A
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the claim for entitlement to service connection for low back problem, now claimed as back pain is reopened.
Entitlement to a rating in excess of 10 percent for service-connected tinnitus, to include on an extra schedular basis is denied.
Entitlement to a compensable rating for service-connected bilateral hearing loss from February 2, 2012 to April 6, 2015 is denied.
Entitlement to a rating in excess of 20 percent for service-connected bilateral hearing loss from April 6, 2015, is denied.
Entitlement to a revision of the September 2013 rating decision based on clear and unmistakable error (CUE) is denied.
REMANDED
Entitlement to service connection for low back pain is remanded.
Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded.
FINDINGS OF FACT
1. An April 1981 rating decision denied the claim of entitlement to service connection for a low back condition.
2. Evidence received since the April 1981 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 
3. The Veteran’s service-connected tinnitus is assigned the maximum rating authorized under the applicable diagnostic code and does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted.
4. The evidence fails to demonstrate that from February 29, 2012 to April 6, 2015, the Veteran’s service-connected bilateral hearing loss has been manifested by more than auditory acuity Level I in the right ear and auditory acuity Level II in the left ear.
5. The evidence fails to demonstrate that from April 6, 2015, the Veteran’s service-connected bilateral hearing loss has been manifested by more than auditory acuity Level V in the right ear and auditory acuity Level VI in the left ear.
6. The September 2013 rating decision did not become final as it is currently on appeal. 
CONCLUSIONS OF LAW
1. The criteria for reopening the claim for service connection for low back pain have been met.  38 U.S.C. §§ 5108, 7103(a) (2012); 38 C.F.R. § 3.156 (2017).
2. The criteria for a rating in excess of 10 percent for service-connected tinnitus, to include on an extra schedular basis have not been met.  38 U.S.C. §1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
3. The criteria for an initial compensable rating for service-connected bilateral hearing loss from February 29, 2012, to April 6, 2015, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2017).
4. The criteria for a rating in excess of 20 percent for service-connected bilateral hearing loss from April 6, 2015, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2017).
5. The criteria for entitlement to a revision of the September 2013 rating decision on the basis of CUE have not been met.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Navy from November 1967 to October 1969.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).
Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for low back problem, now claimed as low back pain.
The Veteran previously submitted a claim of entitlement to service connection for low back pain which was denied in an April 1981 rating decision on the basis that the evidence failed to show that this condition, which pre-existed military service was made permanently worse due to service.  The April 1981 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period.  See 38 C.F.R. § 3.156(b).  The Board notes that the notification letter informing the Veteran of the April 1981 rating decision was returned as undeliverable; however, there is no indication in the record that the Veteran informed VA of a new address and the notification letter was sent to his last known address of record. Hyson v. Brown, 5 Vet. App. 262 (1993) (discussing a claimant’s duty to inform VA of his or her current address).  
In connection with the Veteran’s claim to reopen, the Veteran submitted additional post-service treatment records regarding his low back condition indicating that he may have an additional low back disorder that is separate from the disorder noted at entry into service.  See private treatment records from September 2005 to January 2011 and July 2011 to May 2012.  The Veteran’s service records show that he complained of back pain in service.  Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Increased Rating
Entitlement to a rating in excess of 10 percent for service-connected tinnitus, to include on an extra schedular basis
The Veteran seeks an increased rating for his service-connected tinnitus, for which he is currently receiving a 10 percent rating under DC 6260.  This Diagnostic Code allows for a single 10 percent disability rating for tinnitus regardless of whether it is unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  No higher disability rating is available under the Rating Schedule.  Accordingly, as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or otherwise increase the Veteran’s total compensation for his service-connected tinnitus, his claim for an increased rating must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 
Additionally, the evidence shows that the Veteran’s symptomatology does not warrant referral for an extraschedular rating.  See 38 C.F.R. § 3.321 (b)(1). The threshold element for an extraschedular rating, “an exceptional disability picture,” is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a claimant’s service-connected disabilities. Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Here, the schedular rating criteria reasonably contemplate the Veteran’s symptom of ringing in the ears.  Therefore, the Board finds that he does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted.
Entitlement to a compensable rating for service-connected bilateral hearing loss from February 29, 2012 to April 6, 2015. 
In general, disability ratings are based on the average impairment of earning capacity, and are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. § 4.1. In rating hearing loss specifically, the rating schedule requires a mechanical application of the Rating Schedule, using numeric designations based upon the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  See 38 C.F.R. § 4.85; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  By applying the tables in the Rating Schedule to the veteran’s test results, a Roman numeral designation is assigned, ranging from Level I for essentially normal acuity to Level XI for profound deafness.  See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI and Table VIA.  These Roman numeral designations are then used to determine the percentage evaluation for hearing impairment by applying Table VII.  See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII.  
The current rating criteria include alternate methods of rating exceptional patterns of hearing loss, as defined in 38 C.F.R. § 4.86.  The Veteran’s audiological findings discussed below do not support application of the provisions of 38 C.F.R. § 4.86 in either ear.  As such, the Veteran’s bilateral hearing loss will be rated using the criteria set forth in 38 C.F.R. § 4.85.
The Veteran asserts that he is entitled to a compensable rating for his service-connected bilateral hearing loss from February 29, 2012 to April 6, 2015.
During his March 2013 VA audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:

			HERTZ		
	500	1000	2000	3000	4000
RIGHT	20	25	30	70	65
LEFT	25	40	55	85	90

The average pure tone threshold from 1000 to 4000 Hertz was 48 decibels in the right ear and 68 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.  During the March 2013 VA examination, the Veteran reported difficulty hearing in background noise.  
The results of the aforementioned VA examination correspond to Level I hearing loss for the right ear and Level II hearing loss under Table VI.  In turn, these results correspond to a noncompensable (zero percent) evaluation under Table VII.  
A compensable rating is not warranted because in mechanically applying the Rating Schedule tables to the March 2013 audiometric test results set forth above, the Veteran’s level of hearing impairment produces no higher than a 0 percent rating.  See 38 C.F.R. § 4.85, Table VI.  Thus, even considering the Veteran’s reports as to the effects of his hearing loss on his daily life, the relevant evidence shows that the criteria for a compensable rating are not met for the period prior to April 6, 2015.
  
Entitlement to a rating in excess of 20 percent for service-connected bilateral hearing loss from April 6, 2015.
In April 2015, the Veteran was provided a VA audiological examination.  The Veteran exhibited pure tone thresholds, in decibels, as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	30	30	55	75	80
LEFT	40	50	65	90	85

The average pure tone threshold from 1000 to 4000 Hertz was 60 decibels in the right ear and 72.5 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 68 percent in the left ear.  During the April 2015 VA examination, the Veteran reported missing a lot in conversations, diminished comprehension with background noise and that his wife complains that the television is too loud.  
The results of the aforementioned VA examination correspond to Level V hearing loss for the right ear and Level VI hearing loss under VI.  In turn, these results correspond to a 20 percent evaluation under Table VII. 
A rating in excess of 20 percent is not warranted because in mechanically applying the Rating Schedule tables to the April 2015 audiometric test results set forth above, the Veteran’s level of hearing impairment produces no higher than a 20 percent rating.  See 38 C.F.R. § 4.85, Table VI.  The audiometric thresholds do not meet the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86.  Additionally, the examiner did not certify that the use of the speech discrimination test is not appropriate for the Veteran.  Therefore, the Veteran’s audio threshold and speech recognition scores will be applied to Table VI and not Table VIA.  See 38 C.F.R. § 4.85(c).  
Although the Veteran is competent to report symptoms such as difficulty hearing, he is not competent to report that his hearing acuity is sufficient to warrant a compensable rating under VA’s tables for rating hearing loss disabilities.  Such an opinion requires medical expertise and testing which has not been shown.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Moreover, as stated above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule.  Lendenmann, 3 Vet. App. at 349.  Thus, the relevant evidence shows that the criteria for rating in excess of 20 percent are not met for the period beginning April 6, 2015.  
Whether there was clear and unmistakable error in the September 2013 rating decision.
The Veteran asserts that the September 2013 rating decision contained clear and unmistakable error because VA failed to adjudicate claims that may have been raised by the record or the claimant.  The Veteran contends that VA failed to sympathetically read the Veteran’s pleadings and properly construe pleadings as a claim for VA benefits when the pleadings (or the record) reasonably raised such a claim.
Only a final decision may be revised on the basis of CUE.  38 C.F.R. §§ 3.104, 3.105.  In this case, the September 2013 rating decision did not become final as the Veteran submitted a timely Notice of Disagreement.  The Veteran has not identified any specific claim that he contends was raised by his submission or the record and that remain unadjudicated.  Thus, revision of the September 2013 rating decision based on CUE is denied.
REASONS FOR REMAND
Entitlement to service connection for low back pain.
The Veteran asserts that he is entitled to service connection for low a back condition, now claimed as low back pain.  
The Veteran’s October 1967 enlistment examination shows a normal physical examination, but notes in the “summary of defect and diagnoses” section “transitional LS vertebra, NCD [not considered disqualifying].”  The Veteran was found fit for service.  A November 1967 x-ray report shows an impression of “congenital left thoracic scoliosis.”  A December 1967 STR notes pain in the right leg and back and a diagnosis of “back trouble”- “crooked Spine”.
As noted above, the Veteran’s post-service medical records show that he may have an additional low back disorder that is separate from the disorder noted at entry into service.  An examination has not been provided regarding the Veteran’s back condition.  He contends he has had low back pain since service.  Under these circumstances, the Board finds a VA examination is warranted to determine the etiology of the Veteran’s low back disability.
Entitlement to service connection for an acquired psychiatric condition, to include PTSD is remanded.
The claim for service for an acquired psychiatric disability, to include PTSD is remanded for a new VA examination.  
The Veteran asserts that during service, while working on the “crash crew” fire truck he experienced the worst moths of his life as a result of multiple traumas.  His August 2015 correspondence, he states that the fighter pilots would try to scare them by flying their planes directly toward the fire trucks.  He reports that this impacted him mentally and he is afraid he might hurt himself or worse yet, hurt someone else.  
Additionally, the Veteran reported that while on duty, he witnessed crew members picking up the pilots’ remains from a serious plane crash site.  He stated it was the most traumatizing thing he had ever seen and that he still has nightmares of the crash site.  The Veteran indicates that continues to avoid airports, flyover events, loud noises, airplanes and helicopters.
In April 2018, the Veteran’s ex-partner submitted a statement indicating the Veteran attempted suicide at her home, when she was not there, at the end of their relationship.  She added, that his behavior was understandable after finding out what happened to him in Vietnam.  
The Board notes, that in August 2013, a VA examiner found the Veteran did not have a mental disorder under DSM-IV and did not meet the criteria for PTSD under DSM-IV.  There were also no entries showing a diagnosis of or treatment for an acquired psychiatric disorder in the service treatment records, to include the separation examination.  The examiner reasoned that the Veteran’s reported psychiatric symptoms did not meet the criteria for PTSD or a psychiatric disorder.  Despite the foregoing, the buddy statement submitted by the Veteran’s ex-partner indicates a worsening of symptoms.  Thus, a new examination should be provided.
The matter is REMANDED for the following action:
1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal.
2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back pain and psychiatric symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.
3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed low back disorder.  All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed.    Thereafter, the examiner must respond to the following:
a.	The examiner should diagnose all low back conditions.
b.	 The examiner should state the likelihood the Veteran’s low back pain, which pre-existed service, worsened during service.
The examiner should address the January 1968 service treatment report of the Veteran’s sore back and the Veteran’s October 1967 enlistment examination that indicates the Veteran claims low back pain sometimes aggravated by lifting.
If the examiner diagnoses any low back conditions that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not the condition is related to or had its onset during service.
The examiner should give a reasoned explanation for all opinions provided.   
4. Schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any psychiatric condition found to be present.  The examiner should review the claims file and note such review in the report.  Thereafter, the examiner must respond to the following:
a.	Identify all psychiatric disabilities found to be present.  
b.	With respect to each diagnosed psychiatric disability, state whether it is at least as likely as not each condition had its onset in service or is related to service.  
The examiner should discuss the Veteran’s report of in-service accounts of traumatic experiences incurred while working on the “crash crew” fire truck, as well as the April 2018 buddy statement regarding the Veteran’s suicide attempt reported by his ex-partner.    
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jacquelynn M. Jordan, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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