Citation Nr: 1328286 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-44 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left ankle disability. 2. Entitlement to service connection for right ear hearing loss. 3. Whether new and material evidence has been received to reopen a claim of service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1972 to June 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) in April 2008 (that denied service connection for a right knee disability) and in March 2009 (that denied service connection for right ear hearing loss, and declined to reopen a claim of service connection for left ear hearing loss). The Veteran requested a Travel Board hearing; he failed to report (without providing cause) for such hearing scheduled for May 11, 2011. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). In June 2013, the Board obtained a Veterans Health Administration (VHA) medical advisory opinion in the matter of service connection for hearing loss. Although the RO reopened the Veteran's claim for service connection for left ear hearing loss in the September 2009 statement of the case, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The claim of service connection for right knee disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. An unappealed November 1974 rating decision denied service connection for left ear hearing loss, based essentially on a finding that such disability was not shown. 2. Evidence received since the November 1974 rating decision includes evidence not of record at the time of that decision, shows a diagnosis of left ear hearing loss; relates to an unestablished fact necessary to substantiate the claim of service connection for left ear hearing loss; and raises a reasonably possibility of substantiating the claim. 3. It is reasonably shown that the Veteran's bilateral hearing loss disability is related to his exposure to noise trauma in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for left ear hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants that portion of the appellant's claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. New and Material Evidence - Left Ear Hearing Loss A November 1974 rating decision denied the Veteran service connection for left ear hearing loss based on a finding that such disability was not found on October 1974 VA examination, and was not shown. He was notified of the rating decision and of his appellate rights. He did not file a notice of disagreement with that decision (or submit new and material evidence in the year following), and it is final based on the evidence then of record. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss (SNHL)) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence of record in November 1974 included: * The Veteran's DD-214 which shows he was an aircraft and engine mechanic in service. * The Veteran's service treatment records (STRs), which include May 1974 service Medical Board audiometry showing elevated puretone thresholds in all frequencies for the left ear, and a May 1974 physical evaluation board findings of impairment of auditory acuity; discharge was recommended. * An October 1974 report of VA examination which found that the Veteran's hearing was within normal limits. Evidence received subsequent to the November 1974 rating decision includes: * August and October 2008 statements from the Veteran describing a head injury that occurred while he was working as a jet engine mechanic in service, causing hearing problems, and reporting that both his ear drums burst while descending on a flight in service. * Postservice VA treatment records including a March 2008 audiology record noting hearing loss, and a July 2008 audiology note, when the Veteran was fitted for hearing aids. * A March 2009 VA audiological evaluation which found left ear SNHL. * A July 2013 VHA expert opinion concluding that the Veteran's hearing loss is at least as likely as not caused by or a result of noise trauma in service. The evidence received since the November 1974 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses the unestablished fact necessary to substantiate the Veteran's claim of service connection for bilateral hearing loss. Specifically, the claim was previously denied based on a finding that the Veteran did not have a left ear hearing loss disability. Evidence received since the November 1974 rating decision includes a VA diagnosis of left ear SNHL, and an opinion that relates the disability to service. Therefore, the additional evidence addresses the unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the Veteran's claim. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Accordingly, the claim of service connection for left ear hearing loss may be reopened. .De novo review of the claim is discussed below. Service Connection - Bilateral Hearing Loss It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. See March 2009 VA examination report. Based on his service as an aircraft and jet engine mechanic, it is also reasonably shown that he likely was exposed to hazardous level noises in service. What he still must show to establish service connection for his bilateral hearing loss is that it is related to his service/noise trauma therein. The competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's hearing loss and his service consists of the March 2009 VA examiner's opinion and that by the VHA expert in July 2013. The Board had found the March 2009 opinion inadequate because it was not accompanied by a sufficient explanation of rationale (i.e., it did not account for/explain that service separation audiometry was abnormal, and that the Veteran was "boarded out" from service for disabilities including impaired hearing). In contrast, the VHA expert, a licensed audiologist with 16 years of experience, related the Veteran's hearing loss disability to noise exposure in service. The opinion is accompanied by explanation of rationale with citation to factual data, and the Board finds it persuasive. In summary, pertinent and probative evidence shows that the Veteran has a bilateral hearing loss disability; that he was exposed to noise trauma in service; and that competent evidence (a VA expert's opinion) relates the hearing loss to his service. All of the requirements for establishing service connection are met. Service connection for bilateral hearing loss disability is warranted. ORDER The appeal to reopen a claim of service connection for left ear hearing loss is granted. Service connection for bilateral hearing loss is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to these claims. See 38 C.F.R. § 3.159. The Veteran seeks service connection for a right knee disability, as secondary to his service-connected left ankle disability (residuals left ankle ligament tear and fracture). He asserts that "because of the injury to my left ankle, I had to rely more on my right side and in 2007 I went to an orthopedic surgeon and found out I needed a knee brace because my ligaments and tendons were damaged." He further contends that "common sense dictates that the damage to my right knee was a result of my left ankle instability..." See November 2009 statement. On July 2008 VA examination, the examiner opined that the Veteran's current right knee strain is less likely than not caused by, a result of, or aggravated by his residuals of left ankle ligament tear and fracture with limitation of motion. The examiner stated that "the right knee condition has been present since the early 2000's and is not likely to be related to his left ankle condition." Because the December 2008 examiner did not adequately explain the rationale for his opinion that the left ankle disability did not cause or aggravate the right knee strain, the examination report (nexus opinion) is inadequate for rating purposes; and a remand to secure another medical advisory opinion in the matter is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of complete updated (i.e., any not already associated with the record) clinical records of treatment the Veteran has received for his right knee. 2. The RO should thereafter arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right knee disability. The examiner must review the entire record in conjunction with the examination, and any studies indicated should be completed. Based on review of the record and examination of the Veteran (to include any diagnostic studies indicated), the examiner should provide an opinion that responds to the following: (a) What is the likely etiology for the Veteran's right knee disability? Specifically, is it at least as likely as not (a 50 percent or greater probability) that any right knee disability was either caused or aggravated by (increased in severity due to) his service-connected left ankle disability? (b) If the right knee disability is found to not be related to the left ankle disability, please identify the etiology considered more likely. (c) If the opinion is to the effect that the left ankle disability did not cause, but aggravated, the right knee disability, the examiner should identify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature, as deemed indicated. 3. The RO should then review the record and readjudicate the claim of service connection for a right knee disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs