Citation Nr: 18143104 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-26 698 DATE: October 18, 2018 ORDER The issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a back disorder, is reconsidered. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Relevant service department records that were available at the time of the July 1990 rating decision denying service connection for a back disorder and were associated with the claims file thereafter. CONCLUSION OF LAW The criteria for reconsideration of the claim of entitlement to service connection for a back disorder have been met. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.156(c) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from August 1982 until June 1986 with subsequent service in the Army Reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issues of entitlement to service connection for bilateral hearing loss, a back disorder, left knee disorder, and right knee disorder are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (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). 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). In a July 1990 rating decision, the RO denied service connection because there was no evidence of in-service disability or current disability. The RO noted the were unable to obtain the Veteran’s service treatment records. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 1990 rating decision included the Veteran’s DD-214 and enlistment examination. Evidence submitted after the July 1990 rating decision included the Veteran’s service personnel records (SPRs), STRs, lay statements, VA treatment records and a VA audiological examination. In December 2013, VA received STRs and in July 2015 received SPRs. The records included relevant information regarding the Veteran’s reserve status after active duty discharge and relevant clinical STRs. Thus, the record showed that additional and relevant service department records were added after the July 1990 rating decision. Those records existed at the time the Veteran’s claim was previously denied and had not yet been associated with the claims file. Accordingly, the Veteran’s claims are reconsidered and new and material evidence is not necessary. 38 C.F.R. § 3.156(c). REASONS FOR REMAND First, remand is required to verify periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). The Veteran indicated she was injured during her reserve service. The Veteran’s SPRs indicated she served in the Army Reserves after discharge. The records do indicate whether it was full- time duty. Accordingly, remand is required to determine if this period of service was ACDUTRA or INACDUTRA. Second, remand is required to ensure the STRs are complete. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). The Veteran’s claims file does not appear to contain her complete STRs for her period of service in the Army Reserve. Because these records may include evidence of an in-service injury, remand is required. Third, remand is required to attempt to obtain private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In her April 2014 notice of disagreement (NOD) the Veteran stated she was treated for injuries during reserve service after jumping out of a helicopter. In her substantive appeal the Veteran indicated she tried to obtain the records that may have been destroyed. The VA has not made any efforts to obtain these records. Accordingly, remand is required to attempt to obtain the private treatment records. Lastly, remand is required to secure an adequate audiological examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Examiner should consider and directly address any shifts of acuity thresholds found in the STRs even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran alleges she began to lose her hearing during active duty and the hearing loss worsened during her reserve service. The Veteran was afforded a VA audiological examination in February 2014. The examiner provided a negative nexus opinion, relying on the fact of normal hearing at discharge. But the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the examiner did not discuss the threshold shift from the February 1983 audio examination to the August 1988 and March 1993 audio examinations, which occurred during the Veteran’s reserve service. Accordingly, a new examination is required. The matters are REMANDED for the following action: 1. Verify all periods of ACDUTRA or INACDUTRA, through all appropriate sources. A retirement points summary is not enough, the specific dates must be verified and records obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact Army Reserves or any other appropriate entity to obtain all service personnel and treatment records from all periods of service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 4. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hearing had onset in, or is otherwise related to, active military service. The examiner must specifically address 1) the Veteran’s assertions of an in-service hearing loss and continuity of symptoms during reserve service and 2) the threshold shift from the February 1983 audio examination to the August 1988 and March 1993 audio examinations contained in the Veteran’s STRs. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a back disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service injury. The examiner must also specifically address the statement in the March 1993 report of medical history noting recurrent back pain. 7. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel