Citation Nr: 1612240 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 11-26 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas 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 bilateral hearing loss. 3. Entitlement to an increased rating for left knee chondromalacia (left knee disability), currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to June 1987, August 2004 to January 2006, and August 2008 to October 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter came before the Board in February 2014, at which time the Board remanded for the RO to schedule a video conference hearing before a Veterans Law Judge. The matter has been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the February 2014 Board remand. In November 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of this proceeding is associated with the claims file. Thus, no further action is required. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to an increased rating for the left knee disability and entitlement to service connection for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The RO denied the Veteran's claim for bilateral hearing loss in January 2007. 2. The Veteran filed a notice of disagreement in July 2007. 3. The RO mailed the Veteran a statement of the case in October 2007. 4. Because the Veteran did not file a substantive appeal to the October 2007 statement of the case, the January 2007 rating decision is final. 5. New and material evidence has since been received for the Veteran's service connection claim for bilateral hearing loss. CONCLUSIONS OF LAW 1. The January 2007 rating decision, which denied service connection for bilateral hearing loss, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received and the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§3.104(a), 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening Service Connection for Bilateral Hearing Loss The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a). The issue of whether new and material evidence has been received to reopen service connection for a bilateral hearing loss has been considered with respect to VA's duties to notify and assist. Given the favorable outcome with respect to this issue, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The RO reopened the Veteran's claim for service connection for bilateral hearing loss in its May 2010 rating decision. The preliminary question of whether a previously denied claim should be reopened, however, is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of how the RO characterized the issue, the initial question before the Board is whether new and material evidence has been received. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1100, 20.1103, 20.1104 (2015). If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The Veteran's claim for service connection for bilateral hearing loss was previously considered and denied by the RO in a January 2007 rating decision because the RO found that the Veteran did not have hearing loss for VA compensation purposes. The Veteran was notified of that decision and of his appellate rights and filed a timely notice of disagreement in July 2007. The RO issued a statement of the case in October 2007, but the Veteran did not file a substantive appeal and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since the January 2007 VA examination, the Veteran served another tour in Iraq. He testified before the Board in November 2015 that he went out on daily missions on M1 tanks that have very loud engines and guns. In January 2010, the Veteran was afforded a VA examination to assist in determining the level of his hearing disability. Although that VA examination did not show hearing loss for VA compensation purposes, the Veteran testified before the Board that his hearing loss has worsened. The Veteran testified at the hearing that his wife, oldest son, and mother have to repeat themselves so that he can hear them speak. The Veteran's wife submitted a lay statement attesting to the Veteran's worsened hearing. Specifically, she reported that the Veteran does not hear her speak and that the volume at which he can hear the television or car radio is so loud that it bothers her. Moreover, the Veteran was granted service connection for tinnitus in a July 2008 rating decision, effective June 29, 2006. In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When credibility is presumed, the aforementioned evidence suggests that the Veteran's hearing loss has worsened since the January 2007 rating decision. Because this evidence was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claims, the Board finds that the additional evidence is new and material to reopen service connection for bilateral hearing loss. ORDER New and material evidence having been submitted, the Veteran's request to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. REMAND In the November 2015 Board hearing, the Veteran testified that his hearing loss has worsened. Specifically, the Veteran contended that his hearing has worsened since his last VA examination in January 2010 and that he cannot hear his family members when they speak to him. Additionally, the Veteran contends that his left knee disability has worsened since his last VA examination in July 2012. At the Board hearing, the Veteran's wife contended that his knee gives out often and that the family has had to limit activities that require prolonged walking, such as going to an amusement park. Moreover, the Veteran cannot fulfill normal chores, like mowing, taking out the trash, and changing oil in the car. The Veteran also testified that he experiences a popping sensation in his knee, that it hurts constantly, and that he occasionally wears a knee brace for the pain. In light of the evidence above, the Board finds that a remand is required to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran which takes into account the records of prior examinations and treatment as well as to provide a medical examination or, to obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.326 (2013); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board finds that VA examinations are necessary to render a decision on the merits of these issues. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA and private treatment records and associate them with the record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hearing loss. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion with supporting rationale as to the following: a. Does the Veteran have a current hearing loss disability? b. If a current hearing loss disability is found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hearing loss disability had its onset in service or is otherwise etiologically related to active service? A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Schedule Veteran for a VA knee examination to assess the current severity of his left knee disability. Any and all indicated evaluations, studies and tests deemed necessary, including range of motion testing, should be conducted. The relevant documents in the electronic claims file should be reviewed by the VA examiner in connection with the examination. The examiner should address the Veteran's contentions regarding his left knee disability from the November 2015 Board hearing, including that he experiences his left knee giving out and a popping sensation. 4. After completion of the above and compliance with the requested actions has been ensured, readjudicate the issues on appeal on the basis of the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs