Citation Nr: 1801963	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-00 774	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to an increased evaluation for degenerative arthritis and disc disease of the cervical spine, rated 10 percent disabling prior to March 31, 2011, and over 20 percent thereafter.

3.  Entitlement to an increased evaluation for left lower extremity radiculopathy, currently rated at 20 percent.

4.  Entitlement to an increased evaluation for left upper extremity radiculopathy, currently rated at 30 percent.

5.  Entitlement to an increased evaluation for right lower extremity radiculopathy, currently rated at 20 percent.

6.  Entitlement to an increased evaluation for degenerative arthritis and disc disease of the lumbar spine currently rated at 20 percent. 

7.  Entitlement to an increased evaluation for boxer knuckles with ankylosis of fingers, right hand, rated at 10 percent prior to July 29, 2015 and 40 percent thereafter.

8.  Entitlement to service connection for bilateral ankle condition.

9.  Entitlement to service connection for a dental condition.

10.  Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Veteran represented by: Christopher J. Boudi, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

The Veteran served on active duty from December 1976 to December 1998.

This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, then Chicago, Illinois. Jurisdiction remained with the RO in Chicago. 

During the course of the appeal, additional rating actions have awarded further compensation for service-connected disabilities of the cervical and lumbar spine and right hand, reflected in the incremental increased ratings indicated. The appeals continue for higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise).

In February 2016, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). 

These issues were previously remanded by the Board in November 2016 for further development. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.

The petition to reopen a claim of service connection for bilateral hearing loss based on new and material evidence is granted herein; the remaining issues are addressed in the REMAND section of this decision and are REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. 
 

FINDINGS OF FACT

1. A May 2003 rating decision denied entitlement to service connection for bilateral sensorineural hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of the May 2003 rating decision. 

2. Some of the evidence received since May 2003, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the clam of service connection for bilateral sensorineural hearing loss.


CONCLUSIONS OF LAW

1. The May 2003 rating decision which denied the Veteran's claim of entitlement to service connection for bilateral sensorineural hearing loss is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 

2. The evidence received since the May 2003 rating decision is new and material, and the claim of entitlement to service connection for bilateral sensorineural hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

In view of the reopening of the claim, further discussion of the VA's duty to provide notice and assist in developing a claim is not needed. See 38 U.S.C.A. §§ 5103, 5103A, 5107.

New and material evidence

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).

In a May 2003 rating decision, the RO denied the claim of entitlement to service connection for bilateral sensorineural hearing loss based on the determination that the Veteran was found to have normal hearing and therefore did not meet the current disability requirement for entitlement to disability compensation under 38 C.F.R. § 3.385. 

The Veteran did not submit a notice of disagreement with the May 2003 rating decision and no new and material evidence was received by VA within one year of the issuance of the rating decision. As such, the May 2003 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

At the Veteran's February 2016 Board hearing, he testified that his hearing loss had worsened since the time of the more recent examination.  This evidence is new and material evidence because it was not of record at the time of the final RO decision in May 2003, and indicates the Veteran may have current bilateral sensorineural hearing loss in accordance with 38 C.F.R. § 3.385. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral sensorineural hearing loss. See Shade, 24 Vet. App. 110.



ORDER

New and material evidence having been received; the claim of entitlement to service connection for bilateral sensorineural hearing loss is reopened.


REMAND

Remand is necessary to comply with the Board's November 2016 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled, as a matter of law, to compliance with remand directives).  It appears that this matter has been returned to the Board prematurely, as most of the requested development has not been accomplished.

In the November 2016 Board remand, the Board directed the AOJ to afford the Veteran VA examinations to assess the severity of his musculoskeletal disabilities.  To date, no examinations have been completed.  Therefore, remand is necessary to comply with the Board's remand directives.  

Furthermore, the November 2016 Board remand directed the AOJ to clarify with the Veteran whether he was seeking service connection for a dental condition for treatment.  In a January 2017 statement, the Veteran acknowledged that he was seeking service connection for a dental condition for VA outpatient treatment service.  To date, he has not been afforded a VA examination as per the remand directives.  Therefore, remand is necessary to comply with the Board's remand directive.  

Additionally, the Board has presently reopened the Veteran's claim of service connection for bilateral hearing loss.  A VA examination is necessary to determine if the Veteran's hearing loss meets the criteria for VA disability purposes and whether any hearing loss is due to the Veteran's active service.  Therefore, remand is necessary to provide the Veteran with a VA examination prior to adjudication. 

Finally, the AOJ was directed to obtain all outstanding treatment records, review them, and provide the Veteran with a Supplemental Statement of the Case (SSOC), if benefits were not granted.  This action has not been undertaken. 

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding, relevant treatment records and associate them records with the VBMS file.  All attempts to obtain records should be documented in the claims folder.

2. Then schedule the Veteran for VA examination to determine the severity of his service-connected lumbar and cervical spine disorders. The electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail.

The VA examiner is requested to indicate all present symptoms and manifestations from the Veteran's service-connected back and neck disorders. The examiner should report complete range of motion findings for the thoracolumbar spine. Range of motion measurement must be provided in active motion, passive motion, weight-bearing and nonweight-bearing positions (as appropriate). Additionally, the examiner must document all functional loss of the thoracolumbar and cervical spine, including due to pain on use, weakness, repetitive motion, flare-ups, fatigue, and incoordination. Any functional loss must be documented in terms of additional lost degrees of range of motion.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

Further, identify and describe the frequency and severity of all incapacitating episodes of intervertebral disc syndrome (IVDS) of the thoracolumbar and/or cervical spine, if any, (an "incapacitating episode" being defined as requiring physician-prescribed bedrest).

3. The examiner, or another appropriate examiner, must also conduct an examination assessing any neurological manifestations of the Veteran's musculoskeletal disorders, specifically including the radiculopathies of the bilateral lower extremities and the left upper extremity.  The examiner must opine as to whether the radiculopathies cause mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the relevant nerve group. 

4. Afford the Veteran a dental examination regarding his claim for a dental condition for VA treatment purposes.  The electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail.  Referral of this issue to the appropriate medical center should also be undertaken.

5. Afford the Veteran a VA audiological examination to determine if he has hearing loss pursuant to 38 C.F.R. § 3.385.  The electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. 

If compensable hearing loss is found under 38 C.F.R. § 3.385, the examiner must provide an opinion as to whether the Veteran's hearing loss was incurred during or as a result of service.  The absence of hearing loss at discharge is not a bar to service connection.  

The examiner must consider the Veteran's lay statements in forming an opinion.  

6. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. 

7. Thereafter, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted furnish a Supplemental Statement of the Case (SSOC) and afford an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).

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).


______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs