Citation Nr: 1625686 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 03-31 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Whether new and material evidence has been presented to reopen the claim of service connection for back disability. 3. Whether new and material evidence has been presented to reopen the claim of service connection for a left knee disability. 4. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Hugh D. Cox, Attorney WITNESSES AT HEARING ON APPEAL Appellant and J.B. ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 2003 (bilateral hearing loss), in May 2010 (new and material evidence claims), and in February 2012 (claim for increase) of a Department of Veterans Affairs (VA) Regional Office (RO). In a decision in June 2004, the Board denied service connection for a bilateral hearing loss disability, a back disability, and a left knee disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2006 Order, the Court vacated the Board's decision and remanded the claims for further proceedings consistent with the Court's Order. In January 2008, the U. S. Court of Appeals for the Federal Circuit affirmed the Veterans Court ruling. In October 2008, the Board remanded the claims for action necessary to comply with the Veterans Court's Order. In a rating decision in May 2009, the RO continued the denial of the claims and returned the claims to the Board. In a decision dated in September 2009, the Board denied the claims of entitlement to service connection for a back disability and a left knee disability. In September 2009 and in December 2010, the Board again remanded the claim of service connection for a bilateral hearing loss disability. In December 2010, the Board also remanded the new and material evidence claims. In July 2012, the Veteran appeared at hearing before a Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In December 2012, the Board again remanded this appeal. In his October 2013 substantive appeal, the Veteran requested a Travel Board hearing relating to his right knee increased rating appeal. However, he withdrew that hearing request in a February 2016 statement. 38 C.F.R. § 20.704(e). In a March 2016 letter, the Board informed the Veteran that the Veterans Law Judge who conducted his July 2012 hearing is unavailable to participate in a decision in this appeal and that the Veteran has the right to another Board hearing. The Veteran responded that he does not wish to appear at another Board hearing. See 38 C.F.R. §§ 19.3(b), 20.707. The Board notes that, regardless of the determination reached by the RO in May 2010 with respect to whether new and material evidence has been received, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claims. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In its prior December 2012 decision, the Board referred to the RO the issues of entitlement to an earlier effective date for service connection for a right knee sprain and a new and material evidence claim for a right hand disability, both raised by the Veteran during his July 2012 hearing. As it does not appear that any action has yet been taken on those matters, they are again referred to the RO for appropriate action. The claims for service connection for bilateral hearing loss and low back disabilities, and the claim for increase for the right knee are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A September 2009 Board decision that denied service connection for low back and left knee disabilities was not appealed, nor was reconsideration requested; that decision is final. 2. Some of the evidence received since the September 2009 Board decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for low back and left knee disabilities. 3. Resolving all doubt in the Veteran's favor, his left knee disability was incurred during his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims for service connection for low back and left knee disabilities. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014); 38 C.F.R. § 3.156 (2015). 2. The criteria for establishing service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board is reopening and remanding the claim for service connection for a low back disability and reopening and granting the claim for service connection for a left knee disability, no discussion of VCAA compliance is necessary as to those issues. I. New and Material Evidence The Veteran's claims of entitlement to service connection for low back and left knee disabilities were previously denied in a September 2009 Board decision. Because the Veteran did not appeal the decision to the U.S. Court of Appeals for Veterans Claims (Court) or request reconsideration, the decision is final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. 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). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the September 2009 rating decision included the Veteran's service treatment records, post-service treatment records, the Veteran's lay statements, and a VA examination. The claims for service connection for low back and left knee disabilities were denied because there was no evidence of a low back injury in service, and no evidence that a current low back or left knee disability was caused by service. Evidence added to the record since the September 2009 Board decision consists of additional post-service treatment records, VA examination reports and Disability Benefits Questionnaires, and the Veteran's additional lay statements and hearing testimony. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material, as it relates to unestablished facts necessary to substantiate the claims; namely, a nexus between the Veteran's left knee disability and service, and a nexus between the Veteran's low back disability and service or his service-connected knee disability. Accordingly, the claims for service connection for low back and left knee disabilities are reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). II. Service Connection With respect to the left knee disability, the Board finds that adjudication on the merits is proper at this time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, a claimant must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA law provides that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §1111; 38 C.F.R. § 3.304. Only conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). On examination in April 1966, prior to entrance into service, the Veteran reported a history of bilateral knee problems since childhood. Physical examination at that time, however, failed to substantiate any current knee problems. The Veteran was assigned a limited profile for his lower extremities, but the basis for the limited profile is unclear. As the reason for the limited profile is unclear, and there is no other evidence of record which clearly and unmistakably demonstrates a pre-existing left knee disability, the Board finds that there is insufficient evidence to rebut the presumption of soundness. Current ongoing treatment records show a left knee disability. Early osteoarthritis was shown on VA imaging as early as January 2004, and VA treatment notes as recent as February 2015 show complaints of knee pain and prescription of a hinged knee brace for the left knee. Accordingly, the first element of service connection is met. Turning to an in-service incurrence, the Veteran's STRs show that he was treated for knee complaints of pain and weakness. Additionally, June 1966 records show indicate that training and activities had aggravated his knee pain. In light of these findings, the Board finds that the second element of service connection is met. Turning next to the final element of service connection, a causal relationship between the present disability and the injury incurred or aggravated in service, the record contains a December 2013 opinion from a private clinician relating the current disability to the disability for which the Veteran was treated in service. This opinion was based on physical examination of the Veteran and a review of medical records, including the Veteran's service treatment records. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the current left knee disability was incurred coincident with his service and the third element of service connection is met. The Board acknowledges an April 2009 VA opinion in which the examiner determined that it was less likely than not that the Veteran's current left knee disability was related to his active service. The Board affords this opinion less weight because it is premised upon the Veteran having a left knee disability that pre-existed his entrance into service, and, as explained above, the Board has in this decision determined otherwise. Because each of the three elements for service connection has been met, service connection for a left knee disability is warranted. ORDER New and material evidence having been submitted, the claim for service connection for a low back disability is reopened. To that extent only, the appeal is granted. New and material evidence having been submitted, the claim for service connection for a left knee disability is reopened. Service connection for a left knee disability is granted. REMAND Having reopened the low back claim, the Board finds that remand of that claim, as well as the bilateral hearing loss claim, is necessary for further development. Regarding the low back, the Veteran asserts in-service back injury or treatment, which is not supported by the service treatment records. However, he has also reported chiropractic treatment for his back since leaving service in 1968. That statement is supported by a March 1997 private treatment record documenting a history of chiropractic treatment since 1968. As discussed above, that report was made prior to any claim for benefits and in furtherance of treatment, and is therefore considered highly probative. It is also supported by a September 2003 statement from a different private chiropractor indicating treatment of the Veteran since February 1979, prior to which the Veteran was treated by a different chiropractor who died in 1978. Given the credible evidence of chiropractic treatment within a year of the Veteran leaving service, a new examination and opinion are warranted. That opinion should also address the theory of aggravation, as there is evidence that the Veteran's current low back disability may be aggravated by his service-connected knee disabilities. For example, a VA physician indicated in March 2007 that the Veteran's belief that his history of knee pain contributed to his back pain "is certainly conceivable." Thus, a secondary opinion should also be obtained. Next, regarding hearing loss, a new opinion is necessary. The Board previously remanded the issue for an opinion from an otolaryngologist. However, the opinion obtained in April 2014 was provided by an audiologist. Thus, it is noncompliant with the prior remand directives. Additionally, the April 2014 VA examiner did not reconcile the basis of the opinion offered - namely, the audiometric findings of improved hearing acuity in the service treatment records - with a prior August 2011 examiner's statement that a sensorineural hearing loss does not improve once damaged. The Board also notes that the induction audiometry was performed prior to October 31, 1967, and is presumed to have been conducted using ASA units, while the January 1968 audiometry is presumed to have been conducted using ISO-ANSI standards. If true, when the earlier findings are converted to ISO-ANSI standards, there appears to be even greater disparity between the Veteran's hearing acuity at entrance and separation. However, given the proximity to October 31, 1967, it is possible that the January 1968 separation examination was also conducted using ASA standards, though it is unclear to the Board whether there are any indicators as to the type of standards used. On remand, the examiner should indicate the likelihood that ASA units were still being used in January 1968. The Board notes that the Veteran has asserted that the audiometric findings on the separation examination are questionable, and the Board has reason to agree. In this regard, the January 1968 separation examination report shows no physical profiles despite evidence that the Veteran was given a permanent upper extremity profile for his right hand in April 1967. Thus, it does not appear that the separation examination report is entirely accurate. However, the Board also notes that the August 2011 examiner noted that the audiometric findings in June 1966 could have been the result of a conductive hearing loss due to a temporary etiology such as cerumen or Eustachian tube dysfunction. And, while clinical evaluation of the ears was normal during separation examination, in a June 1966 letter to his wife, the Veteran wrote that he had a high fever and may be hospitalized. Given the foregoing, the examiner is asked to address the validity of the audiometric findings during entrance and separation examinations. Next, regarding the right knee increased rating claim, the Veteran has not been afforded a VA examination since December 2011, over 4 years ago. Since that time, there is evidence of a worsening condition, including a December 2014 private MRI showing a meniscal tear, and a February 2015 VA treatment note showing that surgical intervention was recommended. As such, a new examination should be provided. Finally, updated treatment records should be obtained, and, given the Veteran's assertions of missing records, any outstanding service treatment records should be requested. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and private providers who have treated him recently for the conditions on appeal. After securing any necessary releases, request any relevant records identified. If any requested records cannot be obtained, the claims file should be annotated to reflect such and the Veteran and his representative notified of such. 2. Request from official sources the Veteran's complete service treatment and personnel records. 3. Then, schedule the Veteran for a VA knee examination to determine the current severity of his right knee disability. The claims file should be made available to and be reviewed by the examiner. All tests and studies deemed necessary should be conducted, including range of motion testing. 4. Then, schedule the Veteran for a VA back examination. The examiner should complete all tests and studies deemed necessary. The examiner should then offer an opinion as to whether the Veteran's back disability is at least as likely as not (50 percent probability or greater) related to service, to include training activities and a claimed "duck walk" performed therein. In issuing the opinion, the examiner should discuss the significance of the Veteran's lengthy history of chiropractic treatment, beginning in 1968. If the foregoing response is negative, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability was caused or permanently worsened by the Veteran's service-connected knee disabilities. The examiner must provide a complete rationale for all opinions and conclusions reached. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided. 5. Send the claims file to a VA ENT for review. If the ENT determines a new examination is needed to respond to the question posed, one should be scheduled. The ENT should address whether conversion from ASA to ISO-ANSI is necessary for the Veteran's June 1966 audiogram and the January 1968 audiogram or, whether there is evidence that the Veteran's January 1968 audiogram was done using ASA standards. Following review of the claims file, the ENT should provide an opinion as to whether the Veteran's current bilateral hearing loss is at least as likely as not (50 percent or greater probability) related to his period of active duty service, to include his claimed noise exposure from learning Morse code, using a headset, and then working in a carpenter shop with power tools without hearing protection in service. In rendering the opinion, the ENT is asked to comment on the apparent inconsistencies at 4000 Hertz in each ear on the entrance audiogram and the separation audiogram, to include the validity of those findings. If the findings are deemed valid, the examiner should account for the evidence of improvement in hearing acuity, with consideration of the August 2011 VA examiner's statements that sensorineural hearing loss does not improve and that the findings at entrance could be the result of a temporary etiology, as well as the Veteran's June 1966 letter to his wife indicating that he was ill, apparently mailed on the same date as his audiogram. If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the opinion cannot rendered because there are several potential etiologies, when the Veteran's noise exposure in service is not more likely than any other etiology related to the current hearing loss disability and that an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. 6. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs