Citation Nr: 1612585 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 14-24 531A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for right ear hearing loss disability and if so whether the reopened claim should be granted. 2. Entitlement to a disability rating in excess of 20 percent for residuals, right ankle fracture. 3. Entitlement to a disability rating in excess of 10 percent for a low back strain. 4. Entitlement to a disability rating in excess of 10 percent for hiatal hernia, with gastroesophageal reflux disease (GERD). 5. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee. 6. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, left knee. 7. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, left hip. 8. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1988 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. The Board notes the issue of entitlement to service connection for Osler-Weber-Rendu Syndrome was addressed in the June 2014 statement of the case; however, in his July 2014 VA Form 9, the Veteran excluded the issue from his appeal. The Board will limit its consideration accordingly. All issues other than entitlement to service-connection for right ear hearing loss are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Entitlement to service connection for right ear hearing loss disability was denied in a November 1992 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. The evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's current right ear hearing loss disability originated during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for right ear hearing loss disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 2. The criteria for the establishment of service connection for right ear hearing loss disability are met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Legal Criteria Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran was denied entitlement to service connection for right ear hearing loss disability in a November 1992 rating decision based on the RO's determination that the evidence failed to show the Veteran had a right ear hearing loss disability for VA purposes. The Veteran was informed of the decision and his appellate rights but did not appeal the decision or submit any pertinent evidence during the appeal period. The evidence received after the expiration of the appeal period includes the reports of three VA examinations, which all indicate the Veteran has sufficient hearing impairment in his right ear to qualify as a disability under 38 C.F.R. § 3.385. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim is in order. Reopened Claim Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for right ear hearing loss, which he contends originated in service. The medical evidence confirms the Veteran currently has a right ear hearing loss disability. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran's service treatment records (STRs) show his right ear hearing was within normal limits on entrance into active duty. Though his STRs do not appear to show significant right ear puretone threshold shifts, they do indicate the Veteran was exposed to significant damaging noise in service, which was sufficient to cause a left ear hearing loss therein. Additionally, the Veteran's naval occupational specialty was Electronic Warfare Technician. The United States Navy has acknowledged this occupational specialty has a sufficient probability for exposure to hazardous noise to concede damaging noise exposure in service. On VA examination in April 2011, the Veteran's puretone threshold testing revealed evidence of a current right ear hearing loss disability in accordance with 38 C.F.R. § 3.385. However, the examiner did not provide an opinion relative to the etiology of this disability. In a subsequent October 2011 VA examination, the examiner concluded the Veteran's current right ear hearing loss was not as likely as not caused by or the result of his naval service. The examiner indicated the Veteran's audiogram following separation from service showed normal hearing in the right ear. She went on to explain that a 2005 Institute of Medicine (IOM) study found no scientific support for delayed onset hearing loss. However, the Board notes the examiner did not state the current scientific evidence conclusively rules out the possibility of delayed onset hearing loss. Notwithstanding the medical opinion provided by the October 2011VA examiner, the Board notes the Veteran underwent a third VA examination in December 2012. Following this examination, and review of the Veteran's medical records, the examiner concluded the Veteran's current hearing loss is at least as likely as not caused by his naval service. This examiner explained the Veteran's naval occupation necessitated his use of equipment such as needle guns to chip paint. In addition, the examiner stated the Veteran was also designated as a damage control petty officer, where he was exposed to weapons firing. Although STRs do not evidence right ear puretone threshold loss in service, and there is a medical opinion indicating there is a less than 50 percent likelihood the Veteran's current right ear hearing loss occurred in service, the Veteran has reported he was exposed to significant noise exposure during his period of active duty. This is clearly supported by his left ear hearing loss onset therein. Additionally, a favorable medical opinion has been provided by the December 2012 VA examiner. In this case, both the October 2011 and December 2012 clinicians are certified audiologists, who provided plausible rationales to support their opinions. In the Board's opinion, the evidence supporting the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for right ear hearing loss disability. ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for right ear hearing loss disability is granted. Entitlement to service connection for right ear hearing loss disability is granted. REMAND The Veteran most recently underwent VA examinations to determine the current degree of severity of his service-connected bilateral knee and left hip disabilities in October 2012. He most recently underwent examinations of his service-connected right ankle and back disabilities in July 2012. Further, he most recently underwent an examination of his service-connected gastrointestinal disability, hiatal hernia with GERD, in May 2011. Since that time, the Veteran's attorney has intimated these examinations were not sufficient for rating purposes, because his disabilities were quiescent at the time his examinations were performed. Additionally, the Veteran sought entitlement to a TDIU in February 2012. Following a rating decision in February 2013, additional records were obtained from the Social Security Administration. These records indicate the Veteran was found unable to obtain or maintain substantially gainful, in part, as a result of his service-connected disabilities noted above. Where the evidence indicates a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Based on the foregoing, the Board has determined new examinations are warranted. On remand, all relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination or examinations by an examiner or examiners with sufficient expertise to accurately assess his service-connected bilateral knee, left hip, back, right ankle, and gastrointestinal disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner(s). Any indicated studies should be performed. The RO or the AMC must ensure that all information required for rating purposes, to include, to the extent feasible, an assessment of the extent of any additional limitation of motion during flare-ups and on repeated use, is provided by the examiner(s). 3. In addition, an examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities are sufficiently disabling by themselves to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. A rationale for the opinion also must be provided. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities. Such impairments might include, but not be limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran's competent lay statements. 4. The RO or the AMC should undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs