Citation Nr: 18140670 Decision Date: 10/05/18 Archive Date: 10/04/18 DOCKET NO. 15-08 781 DATE: October 5, 2018 ORDER New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for right hip degenerative joint disease (right hip condition), secondary to degenerative disc and joint disease of the lumbosacral spine. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for left knee degenerative joint disease (claimed as left leg condition), secondary to degenerative disc and joint disease of the lumbosacral spine. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for right knee strain (claimed as right leg condition), secondary to degenerative disc and joint disease of the lumbosacral spine. REMANDED Entitlement to an increased disability rating for bilateral hearing loss, currently rated as noncompensable, is remanded. FINDINGS OF FACT 1. An April 2008 decision denied the Veteran’s entitlement claim for service connection for right hip replacement (right hip condition), secondary to a service-connected lumbosacral spine disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the April 2008 rating decision, for the Veteran’s entitlement claim for service connection for right hip replacement (right hip condition), is cumulative or repetitive of facts that were previously considered. 3. An April 2008 decision denied the Veteran’s entitlement claim for service connection for a left leg condition, secondary to a service-connected lumbosacral spine disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 4. The evidence received since the April 2008 rating decision, for the Veteran’s entitlement claim for service connection for a left leg condition, is cumulative or repetitive of facts that were previously considered. 5. An April 2008 decision denied the Veteran’s entitlement claim for service connection for a right leg condition, secondary to a service-connected lumbosacral spine disability; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 6. The evidence received since the April 2008 rating decision, for the Veteran’s entitlement claim for service connection for a right leg condition, is cumulative or repetitive of facts that were previously considered. CONCLUSIONS OF LAW 1. The April 2008 rating decision that denied the Veteran’s claim for entitlement to service connection for right hip replacement (right hip condition), secondary to a service-connected lumbosacral spine disability, is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2017). 2. Following the April 2008 rating decision, there has been no additional relevant evidence received that is new and material for the purpose of reopening the Veteran’s claim for entitlement to service connection for right hip replacement (right hip condition), secondary to a service-connected lumbosacral spine disability. 38 U.S.C. 5108 (West 2014); 38 C.F.R. 3.156 (a)(2017). 3. The April 2008 rating decision that denied the Veteran’s claim for entitlement to service connection for a left leg condition, secondary to a service-connected lumbosacral spine disability, is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2017). 4. Following the April 2008 rating decision, there has been no additional relevant evidence received that is new and material for the purpose of reopening the Veteran’s claim for entitlement to service connection for a left leg condition, secondary to a service-connected lumbosacral spine disability. 38 U.S.C. 5108 (West 2014); 38 C.F.R. 3.156 (a)(2017). 5. The April 2008 rating decision that denied the Veteran’s claim for entitlement to service connection for a right leg condition, secondary to a service-connected lumbosacral spine disability, is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2017). 6. Following the April 2008 rating decision, there has been no additional relevant evidence received that is new and material for the purpose of reopening the Veteran’s claim for entitlement to service connection for a right leg condition, secondary to a service-connected lumbosacral spine disability. 38 U.S.C. 5108 (West 2014); 38 C.F.R. 3.156 (a)(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 1961 to October 1964, and from May 1973 to December 1984. In March 2015, the Veteran submitted his VA Form 9 for the four issues listed on the title page. Therein, the Veteran requested a Board hearing, via videoconference technology. The Veteran also posited that, “I have provided all pertinent information: medical, military, VA and private doctors, diagnosis and treatment records.” In December 2017, VA received the Veteran’s correspondence. Therein, the Veteran posited that, “(d)ue to my multiple disabilities and medical issues, I am unable at any time, present or future, able to travel no more than short distances. I am requesting that you make a decision based on the information on record.” In August 2018, VA received the Veteran’s signed withdrawal of his request for a Board hearing. Consequently, the Board has not received testimony regarding the issues addressed below. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Secondary Service Connection, Generally Service connection may granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §5107 (b). Claims to Reopen Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156 (a) (2017). To warrant reopening, the new evidence must not be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a “low threshold” for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for right hip degenerative joint disease (right hip condition), secondary to degenerative disc and joint disease of the lumbosacral spine. In an April 2008 rating decision, the AOJ denied the Veteran’s entitlement claim for service connection for right total hip replacement (right hip condition), secondary to his service-connected lumbosacral spine disability. The AOJ provided the following rationale for the denial: “the evidence does not show that right total hip replacement is related to the service-connected condition of degenerative disc and joint disease of the lumbsacral spine, nor is there any evidence of this disability during military service. Also, as the medical evidence fails to show a diagnosis of degenerative joint disease of the right hip within one year after military discharge, service connection on a presumptive basis must be denied.” In short, the AOJ concluded that there was no nexus between the Veteran’s current right hip condition and his service-connected lumbosacral spine disability and, therefore, the third requisite element of a secondary service connection claim was not substantiated. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In September 2011, the Veteran submitted his VA Form 21-526b. Therein, the Veteran again sought service connection for a right hip condition, secondary to a service-connected back injury. In September 2011, the Veteran submitted his VA Form 21-4138. Therein, the Veteran posited that, “I had to have . . . a right hip replacement. I had surgery on my hip 8/29/2007 . . .. I am claiming this as secondary to my back injury.” In September 2011, VA received the Veteran’s treatment records from multiple non-government medical facilities. The Board observes that there is an August 21, 2007 reference to lumbosacral spinal problems made by Dr. Henry. However, Dr. Henry’s reference was among the evidence considered by the AOJ in the April 2008 denial of the Veteran’s entitlement claim for service connection for a right hip condition. Again, “new evidence” means evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a) (2017). After careful and deliberate review of these treatment records, the Board does not identify any new and material evidence sufficient to reopen the Veteran’s entitlement claim for a right hip condition. In July 2012, the Veteran underwent a VA examination that considered his current right hip condition. Therein, a 2003 diagnosis for degenerative joint disease was reported. At that time, Dr. MAL noted that the Veteran began to have right hip pain in 2005, which led to right hip replacement in 2007. Ultimately, Dr. MAL opined that, “the Veteran’s right hip DJD, S/P right hip arthroplasty, is not caused by, a result of, or aggravated by his service connected lumbosacral spine DDD/DJD.” In his supporting rationale, Dr. MAL observed that, “(b)ased on review of the medical records, medical literature and my clinical experience there is no relationship between these two conditions and nothing to suggest that lumbosacral spine degenerative disease causes or aggravates hip problems. A nexus cannot be made.” The medical opinion rendered during this examination is essentially duplicative of the opinion reached in a January 2008 examination report considered at the time of the prior final denial. As it does not suggest a link between the Veteran’s right hip disability and his service connected low back disability is not material. It does not relates to an unestablished fact necessary to substantiate the claim. After prolonged and careful review of the Veteran’s claims file, the Board has not identified any new evidence that would support a nexus between the Veteran’s right hip condition and his service-connected lumbosacral spine disability. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Ultimately, the Board concludes that new and material evidence has not been provided sufficient to reopen the Veteran’s claim for entitlement to secondary service connection for his right hip condition. Ultimately, the Board concludes that the record before it contains essentially the same evidence the AOJ considered in April 2008. The Board finds that the evidence added to the claims file, after the April 2008 AOJ decision, relates to and confirms an already established service-connection element, which is a current disability. Consequently, the Board finds that new and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. New and material evidence has not been received; therefore, the claim for service connection for a right hip condition, secondary to service-connected lumbosacral spine disability, is not reopened.   2. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for left knee degenerative joint disease (claimed as left leg condition), secondary to degenerative disc and joint disease of the lumbosacral spine. In an April 2008 rating decision, the AOJ denied the Veteran’s entitlement claim for service connection for a left leg condition, secondary to his service-connected lumbosacral spine disability. The AOJ provided the following rationale for the denial: “(t)he evidence does not show that left knee condition (claimed as left leg condition) is related to the service-connected condition of degenerative disc and joint disease of the lumbosacral spine, nor is there any evidence of this disability during military service.” In short, the AOJ concluded that there was no nexus between the Veteran’s current left leg condition and his service-connected lumbosacral spine disability and, therefore, the third requisite element of a secondary service connection claim was not substantiated. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In September 2011, the Veteran submitted his VA Form 21-526b. Therein, the Veteran again sought service connection for a left leg condition, secondary to a service-connected back injury. In September 2011, the Veteran submitted his VA Form 21-4138. Therein, the Veteran posited that, “I had to have a total knee replacement (left) . . .. My left knee surgery I had it on March 02, 2011. I am claiming this as secondary to my back injury.” In September 2011, VA received the Veteran’s treatment records from multiple non-government medical facilities. Therein, in November 2010, the Veteran underwent an office visit with Dr. Henry. At that time, Dr. Henry diagnosed left knee degenerative arthritis. Within the history portion, Dr. Henry noted that, “(h)e does not remember a specific injury but he had fairly sudden onset of pain three days ago and the pain has persisted, especially with weight bearing. He denies numbness or tingling . . .. He takes Mobic for unrelated back pain.” In February 2011, the Veteran was seen at FirstCoastOrthopedics. At that time, the Veteran was diagnosed with degenerative arthritis of the left knee, and he expressed his willingness to undergo left knee replacement. In March 2011, the Veteran was seen at the Orange Park Medical Center for degenerative arthritis of the left knee. At that time, the Veteran received a left femoral nerve block for his knee pain. In July 2012, the Veteran underwent a VA examination that considered his current left leg condition. Therein, a 2010 diagnosis for left knee degenerative joint disease was reported. At that time, Dr. MAL noted that the Veteran had suffered a left knee meniscal tear. Ultimately, Dr. MAL opined that, “(t)he Veteran’s . . . left knee conditions are not caused by, a result of, or aggravated by his service connected lumbosacral spine DDD/DJD.” In his supporting rationale, Dr. MAL observed that, “(b)ased on review of the medical records, medical literature and my clinical experience there is no relationship between his lumbosacral spine and his knees, and nothing to suggest that lumbosacral spine degenerative disease causes or aggravates knee problems. A nexus cannot be made.” Again, “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. 38 C.F.R. § 3.156 (a) (2017). To warrant reopening, the new evidence must not be cumulative or 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. Id. After careful and deliberate review of the pertinent new treatment records within the Veteran’s claim file and July 2012 VA examination report, the Board does not identify any new and material evidence sufficient to reopen the Veteran’s entitlement claim for a left leg condition. Although the additional treatment records constitute new evidence, they are not material in that they are not probative of a nexus between the service-connected lumbosacral spine disability and the Veteran’s current left leg condition. The information contained in these records is essentially cumulative of evidence considered at the time of the prior final denial. As it does not suggest a link between a left leg disability and the Veteran’s service connected low back disability is not material. It does not relate to an unestablished fact necessary to substantiate the claim. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Ultimately, the Board concludes that new and material evidence has not been provided for the Veteran’s claim to entitlement for secondary service connection for a current left leg condition. The Board finds that the evidence added to the claims file, after the April 2008 AOJ decision, relates to and confirms an already established service-connection element, which is a current disability. Consequently, the Board finds that new and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. The Veteran’s desire to reopen the claim for service connection for a left leg condition, secondary to service-connected lumbosacral spine disability, is denied. New and material evidence has not been received; therefore, the claim for service connection for a left leg condition, secondary to service-connected lumbosacral spine disability, is not reopened. 3. New and material evidence has not been submitted sufficient to reopen a claim for entitlement to service connection for right knee strain (claimed as right leg condition), secondary to degenerative disc and joint disease of the lumbosacral spine. In an April 2008 rating decision, the AOJ denied the Veteran’s entitlement claim for service connection for a right leg condition, secondary to his service-connected lumbosacral spine disability. The AOJ provided the following rationale for the denial: “(t)he evidence does not show that right knee condition (claimed as right leg condition) is related to the service-connected condition of degenerative disc and joint disease of the lumbosacral spine, nor is there any evidence of this disability during military service.” In short, the AOJ concluded that there was no nexus between the Veteran’s current right leg condition and his service-connected lumbosacral spine disability and, therefore, the third requisite element of a secondary service connection claim was not substantiated. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In December 2011, the Veteran submitted his VA Form 21-4138. Therein, the Veteran again sought service connection for a right leg condition, secondary to a service-connected back injury. In September 2011, VA received the Veteran’s treatment records from multiple non-government medical facilities. After careful and deliberated review, the Board does not identify any new and material evidence sufficient to reopen the Veteran’s entitlement claim for service connection for a right leg condition. Specifically, the supplied treatment records do not identify a nexus between the Veteran’s service-connected lumbosacral spine disability and his current right leg condition. In July 2012, the Veteran underwent a VA examination that considered his current right leg condition. Therein, a 2012 diagnosis for right strain was reported. At that time, Dr. MAL reported 120 degrees of right knee flexion with no objective evidence of painful motion. Ultimately, Dr. MAL opined that, “(t)he Veteran’s right . . . knee conditions are not caused by, a result of, or aggravated by his service connected lumbosacral spine DDD/DJD.” In his supporting rationale, Dr. MAL observed that, “(b)ased on review of the medical records, medical literature and my clinical experience there is no relationship between his lumbosacral spine and his knees, and nothing to suggest that lumbosacral spine degenerative disease causes or aggravates knee problems. A nexus cannot be made.” Again, “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. 38 C.F.R. § 3.156 (a) (2017). To warrant reopening, the new evidence must not be cumulative or 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. Id. After careful and deliberate review of the pertinent new treatment records within the Veteran’s claim file, and the July 2012 VA examination report, the Board does not identify any new and material evidence sufficient to reopen the Veteran’s entitlement claim for a right leg condition. Although the additional treatment records and VA examination report constitute new evidence, they are not material in that they are not probative of a nexus between the service-connected lumbosacral spine disability and the Veteran’s current right leg condition. They are essentially cumulative of information previously considered at the time of the prior denial. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Ultimately, the Board concludes that new and material evidence has not been provided for the Veteran’s claim to entitlement for secondary service connection for a current right leg condition. The Board finds that the evidence added to the claims file, after the April 2008 AOJ decision, relates to and confirms an already established service-connection element, which is a current disability. Consequently, the Board finds that new and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. The Veteran’s desire to reopen the claim for service connection for a right leg condition, secondary to service-connected lumbosacral spine disability, is denied. New and material evidence has not been received; therefore, the claim for service connection for a right leg condition, secondary to service-connected lumbosacral spine disability, is not reopened. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 1. Entitlement to an increased disability rating for bilateral hearing loss, currently rated as noncompensable, is remanded. In August 2012, the Veteran submitted his notice of disagreement (NOD). Therein, the Veteran posited that, “I disagree with VA letter . . . dated 30 July 2012 that denied me an evaluation greater than 0% for bilateral hearing.” In July 2012, the Veteran underwent a VA examination to address the severity of his hearing loss disability. At that time, VA audiologist SMD reported the following speech discrimination scores: 96 percent for right ear, and 84 percent for the left. Audiologist SMD also reported the following audiometric values: HERTZ Average JUL ‘12 500 1000 2000 3000 4000 RIGHT 20 25 30 55 65 44 LEFT 25 30 65 70 65 58 These audiometric findings equate to Level I hearing loss in the right ear and Level III hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a non-compensable (0 percent) evaluation reflects the Veteran’s bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. In July 2012, the agency of original jurisdiction (AOJ) rendered a decision, regarding the Veteran’s service-connected bilateral hearing loss disability. Therein, the AOJ continued the Veteran’s noncompensable rating based on the above VA examination report from audiologist SMD. In May 2018, the Veteran submitted his Appellant’s Brief. Therein, the Veteran posited that, “he is entitled to a higher evaluation tha(n) the 0 percent assigned because he believes his hearing loss is a lot worse.” Thus, it appears that the Veteran is reported an increase in the severity of his hearing loss disability since the 2012 examination. The Board observes that the most recent VA examination in connection with the Veteran’s service-connected hearing loss was conducted over six years ago. Given the Veteran’s report of increased symptomatology, as well as the length of time since the last VA examination, a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Consequently, the matter is REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran or his representative to determine if there are any new and/or outstanding VA or private medical records, with regard to his hearing loss claim. If so, the AOJ should obtain any outstanding medical records from the treatment facilities identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. The VA examiner must measure and supply puretone threshold scores bilaterally. In addition, the VA examiner must supply speech discrimination scores, using the Maryland CNC. The claims folder, including a copy of this Remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that record review took place should be included in the examination report. All indicated studies should be performed. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examination(s) and to cooperate with the development of his claims; failure to report without good cause may result in denial of his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel