Citation Nr: 1800609 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-20 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle condition. 2. Entitlement to service connection for a left ankle condition. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for bilateral hearing loss. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran; Veteran's Wife ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to May 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A hearing before the undersigned was held in October 2017; a transcript of the hearing is of record. The issues of entitlement to service connection a left ankle condition, bilateral hearing loss, and hepatitis were previously denied in a June 2008 rating decision. The Board acknowledges that the RO implicitly reopened and adjudicated these issues on the merits in the May 2014 Statement of the Case (SOC). Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran's claim with respect to these issues. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a left ankle condition and bilateral hearing loss and whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 2008 rating decision, the RO denied a claim of entitlement to service connection for a left ankle condition. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO's June 2008 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for a left ankle condition and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left ankle condition. 3. In a June 2008 rating decision, the RO denied a claim of entitlement to service connection for bilateral hearing loss. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 4. Additional evidence received since the RO's June 2008 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The June 2008 rating decision is final as to the claim of entitlement to service connection for a left ankle condition. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a left ankle condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 3. The June 2008 rating decision is final as to the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2017). 4. New and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims of entitlement to service connection for a left ankle condition and bilateral hearing loss were previously denied, and the Veteran seeks to reopen these claims. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 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 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Left Ankle Condition The Veteran initially filed a claim of entitlement to service connection for a left ankle condition in June 2006. In a June 2008 rating decision, the RO denied the claim on the basis the evidence did not show that a pre-existing left ankle condition was permanently aggravated in service. The Veteran was notified of the decision and his appellate rights by a letter dated later that month. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The June 2008 rating decision therefore became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO's June 2008 rating decision included the Veteran's service treatment records, private treatment records, and VA treatment records. Based on this evidence, the RO concluded that the Veteran did not have a left ankle condition that was aggravated by service and denied the Veteran's claim for service connection. In December 2011, the Veteran requested that his claim of entitlement to service connection for a left ankle condition be reopened. Relevant additional evidence received since the RO's June 2008 rating decision includes the Veteran's testimony that he experienced left ankle symptoms in service. This evidence was not previously on file at the time of the RO's June 2008 decision; thus, it is new. The evidence is also material because the additional lay statements suggest that the Veteran experienced relevant symptoms in service. Specifically, when the claim was previously denied by the RO, the determination was that the Veteran's left ankle condition was not aggravated by service, in part, because there was no evidence of treatment in service. The newly received evidence shows that the Veteran experienced problems with his left ankle in service, at least when the credibility of the evidence is presumed. See Justus, 3 Vet. App. at 512-13. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a left ankle condition, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim set forth in Shade. See Shade v. Shinseki, 24 Vet. App. At 110. Moreover, when viewed as a whole, the new evidence contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's current left ankle condition. Accordingly, the claim of entitlement to service connection for a left ankle condition is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Bilateral Hearing Loss The Veteran initially filed a claim of entitlement to service connection for bilateral hearing loss in June 2006. In a June 2008 rating decision, the RO denied the claim on the basis the evidence did not show that bilateral hearing loss was incurred in service. The Veteran was notified of the decision and his appellate rights by a letter dated later that month. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The June 2008 rating decision therefore became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO's June 2008 rating decision included the Veteran's service treatment records and a May 2008 VA examination report. Based on this evidence, the RO concluded that the Veteran did not have bilateral hearing loss that was incurred in or caused by service and denied the Veteran's claim for service connection. In December 2011, the Veteran requested that his claim of entitlement to service connection for bilateral hearing loss be reopened. Relevant additional evidence received since the RO's June 2008 rating decision includes lay statements of the Veteran elaborating on his in-service noise exposure, as well as his assertions that the May 2008 VA examiner based his negative nexus opinion, in part, on inaccurate information regarding a family history of deafness. See October 2017 Hearing Transcript. This evidence was not previously on file at the time of the RO's June 2008 decision; thus, it is new. The evidence is also material because, when considered with the existing evidence, it would at least trigger the Secretary's duty to assist by obtaining an addendum nexus opinion. See Shade v. Shinseki, 24 Vet. App. At 110; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Moreover, when viewed as a whole, the new evidence contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's bilateral hearing loss. Accordingly, the claim of entitlement to service connection for bilateral hearing loss is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER The previously denied claim of entitlement to service connection for a left ankle condition is reopened. The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. REMAND After a careful review of the Veteran's claims file the Board finds that further development is required prior to adjudicating the remaining issues on appeal. With regard to the issue of entitlement to service connection for a left ankle condition, a remand is required to afford the Veteran with a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran contends that his current left ankle condition was caused or aggravated by the strenuous physical activity he performed during his active service. During his December 1954 enlistment examination, the Veteran reported that he broke his ankle three years previously. However, on the resultant examination report, the Veteran's lower extremities were evaluated as clinically normal. A November 1957 service treatment record shows that the Veteran reported left ankle tenderness, and he requested that the ankle be x-rayed. An x-ray report lists the pertinent clinical history as old fracture and possible reinjury. Although this is the only treatment for a left ankle condition in the service treatment records, the Veteran testified that his ankle would hurt during service due to heavy lifting. He further testified that he would report to sick bay and they would give him pain pills and that his left ankle continued to hurt after service. Every veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on entrance into service, or where clear and unmistakable (i.e., obvious and manifest) evidence demonstrates that the defect, infirmity, or disorder (1) existed prior to service and (2) was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A mere "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1). Here, the Veteran reported on his enlistment examination that he previously broke his ankle. No ankle condition was diagnosed upon the Veteran's entry into service, although a scar on the ankle was observed. Given these facts together with the in-service complaints and findings, and post-service treatment records showing a current left ankle disability, a medical opinion should be sought to address whether current disability is related to the in-service findings, as well as any preexistence and, possibly, aggravation of an ankle disability. With regard to the issue of entitlement to service connection for bilateral hearing loss, the Veteran testified at the October 2017 hearing that the May 2008 VA examiner relied on inaccurate information in proffering a negative nexus opinion. Specifically, the VA examiner noted in the examination report that the Veteran had five brothers born deaf and three brothers born with hearing loss. The VA examiner then based the negative nexus opinion, in part, on the Veteran's "familial history of hearing loss." During the October 2017 Board hearing, the Veteran testified that this information was inaccurate because he only had four brothers and none of them had hearing problems at birth. Under these circumstances, and in light of the fact that the May 2008 VA examiner did not have access to the Veteran's claims file and the length of time since that examination, the Board finds that the Veteran should be afforded a new VA examination in order to determine the nature and etiology of his bilateral hearing loss. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"). With regard to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis, the Board is unable to determine whether new and material evidence has been received at the present time because the record reflects that there are outstanding VA treatment records not associated with the claims file. In this regard, the July 2013 rating decision on appeal reflects that the RO reviewed VA treatment records dated from October 2005 to February 2013. However, a review of the claims file reflects that it contains no VA treatment records dated after 2008. Because the basis of the RO's June 2008 denial of entitlement to service connection for hepatitis, in part, was that the Veteran did not have a current diagnosis of hepatitis, these missing treatment records are important to the Board's determination. 38 C.F.R. § 3.156 (b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); see also See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Finally, a remand is required to obtain outstanding VA treatment records. In addition to the outstanding VA treatment records discussed above, the Veteran testified during the Board hearing that he first started going to the VAMC in the late 1960s or early 1970s. An attempt to procure any such records should be made on remand. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be afforded the opportunity to submit any outstanding private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records, particularly including records from the Houston VAMC and Central Texas HCS reviewed by the RO as indicated in the July 2013 rating decision on appeal, as well as any other records dated from 1960 to the present documenting treatment for the issues on appeal. If no such records are located, that fact should be documented in the claims file. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claim. 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of his left ankle condition. The entire claims file should be made available to the examiner and the examiner should indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner should address the following: (a) The examiner should identify all diagnoses related to the Veteran's left ankle. (b) For each diagnosed left ankle disability, the examiner should opine as to whether that disability is related to, or a progression of, the left ankle findings and complaints noted in service. If not, the examiner should explain the reasons for that conclusion and the inquiry may end. If any current disability is related to, or a progression of, the in-service complaints and findings, the examiner should opine whether disability clearly and unmistakably (i.e., highest degree of medical certainty) pre-existed military service. (c) If pre-existence is demonstrated clearly and unmistakably, the examiner should then opine whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during military service. A fully articulated medical rationale for each opinion expressed should be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical sciences as applicable to this case, which may reasonably explain the study of this case. 3. After all available records have been associated with the claims file, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of his bilateral hearing loss. The entire claims file should be made available to the examiner and the examiner should indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is causally or etiologically due to in-service noise exposure. For purposes of this opinion, the Board notes that there is a factual basis in the record to support the Veteran's account of his exposure to the sounds of ships gunfire during training exercises. A fully articulated medical rationale for each opinion expressed should be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant sciences as applicable to this case, which may reasonably explain the medical guidance in this study of this case. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs