Citation Nr: 1603080 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 13-12 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. During the hearing he was granted a 30-day abeyance period for the submission of additional evidence. That time period lapsed; no additional evidence was received. The issues of service connection for bilateral hearing loss, on de novo review, and service connection for left and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed November 2008 rating decision denied the Veteran service connection for bilateral hearing loss based essentially on a finding that he did not have such disability. 2. Evidence received since the November 2008 rating decision suggests that the Veteran may now have a hearing loss disability and that such disability may be related to his service, relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, an unappealed rating decision is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 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). 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). A November 2008 rating decision denied the Veteran's claim of service connection for bilateral hearing loss based essentially on a finding that he did not have such disability. The Veteran was advised of the denial; he did not appeal it, and additional evidence was not received within a year following. Hence, the November 2008 rating decision is final. See 38 U.S.C.A. § 7105. Evidence received since the November 2008 rating decision includes the Veteran's November 2015 hearing testimony to the effect that his bilateral hearing loss began in service and has persisted. He asserted that his wife has observed a decrease in his hearing acuity since the most recent VA examination in October 2008. Such evidence suggests that the Veteran may now have a hearing loss disability and that such disability may be related to his service. Moreover, such evidence relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss and raises a reasonable possibility of substantiating such claim. Accordingly, particularly in light of the "low threshold" standard for reopening (see Shade v. Shinseki, 24 Vet. App. 110 (2010)), the Board finds that the evidence is both new and material, and that the claim of service connection for bilateral hearing loss must be reopened. De novo consideration of the claim is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is granted. REMAND The analysis proceeds to de novo review of the claim of service connection for bilateral hearing loss. It is not in dispute that the Veteran sustained noise trauma in service, as the November 2008 rating decision (which granted service connection for tinnitus) conceded in-service noise trauma. However, an October 2008 VA examination report notes that the Veteran had normal hearing in each ear by VA standards. At the November 2015 hearing, the Veteran testified that his wife observed that his hearing acuity has decreased since the October 2008 VA examination. The Veteran and his wife are competent to observe a decrease in the Veteran's hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, a remand for a VA examination to ascertain whether the Veteran now has a hearing loss disability is necessary. It is not in dispute that the Veteran has a left and right knee disability. His service treatment records, including a December 1968 service separation examination report, are silent for complaints, treatment, findings, or diagnosis related to either knee. During the November 2015 hearing, the Veteran testified that his duties in service involved frequent crouching and working on his knees, and that he has had recurrent pain in both knees since service. He asserted that he initially sought treatment for the knee pain in the late 1980s or 1990s, initially from a private provider and then from VA. The Board notes that the Veteran is competent to report his observable symptoms such as recurrent knee pain. See Jandreau, 492 F.3d 1372. As the Veteran has not been provided a VA examination for his left and right knee disabilities (and in light of the low threshold standard as to when a VA nexus examination is necessary, endorsed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006)), a VA examination to secure a medical nexus opinion regarding the nature and etiology of the left and right knee disabilities is necessary. Additionally, the record does not reflect that VA has sought records of private treatment the Veteran received for his knees in the late 1980s or 1990s. Such private treatment records and any updated records of VA evaluations and treatment the Veteran has received for his hearing loss and knees may contain potentially relevant evidence (and VA records are constructively of record), and must be secured. Accordingly, the case is REMANDED for the following: 1. 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 knee symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Ask the Veteran to identify the provider(s) of all private evaluations and treatment he has received for his knee disabilities since service and to provide any releases necessary for VA to secure records of such evaluations and/or treatment. The AOJ must secure records of all such evaluations and/or treatment from the provider(s) identified by the Veteran. If any private provider does not respond to an AOJ request, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that the private records are received. The AOJ should also secure for the record complete updated (i.e., those not already in the record) clinical records of all VA evaluations and/or treatment the Veteran has received for his hearing loss and knees since January 2013. 3. After instructions 1 and 2 are completed, the AOJ should arrange for a VA examination of the Veteran to establish the presence, and determine the onset and etiology of any hearing loss disability. Based on a review of the entire record, and examination of the Veteran, the examiner should provide opinions that respond to the following: Does the Veteran have a hearing loss disability of either ear? If so, is it at least as likely as not that such is related to the Veteran's service/noise trauma therein? If not, please identify the etiology considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. 4. After instructions 1 and 2 are completed, the AOJ should arrange for an appropriate VA examination of the Veteran to determine the onset and etiology of his left and right knee disabilities. Based on a review of the entire record, and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each left and right knee disability found. (b) Please identify the likely etiology of each left and right knee disability entity diagnosed. Specifically, is it at least as likely as not that such is related to the Veteran's service (to include as due to frequent crouching and working on his knees during service)? The rationale should include comment on the Veteran's report that he has had recurrent right knee pain since service. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. 5. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs