Citation Nr: 18144178 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 14-24 688 DATE: October 24, 2018 ORDER 1. New and material evidence has been received to reopen the claim for entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a left knee disability is granted. 3. Entitlement to service connection for a right knee disability is granted. REMANDED 1. The issue of entitlement to service connection for right ear hearing loss is remanded. 2. The issue of entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. A final May 2000 rating decision denied the Veteran’s claim for service connection for right ear hearing loss because the evidence failed to demonstrate that the Veteran had a current disability for VA purposes; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of that decision. 2. Additional evidence associated with the claims file since the May 2000 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for right ear hearing loss, and it raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence shows that the Veteran’s left knee disability is related to his military service. 4. The preponderance of the evidence shows that the Veteran’s right knee disability is related to his military service. CONCLUSIONS OF LAW 1. The May 2000 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the May 2000 rating decision is new and material, the criteria for reopening the Veteran’s claim for service connection for right ear hearing loss are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 4. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to September 1985. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from January 2012, December 2012, and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A January 2012 rating decision first denied the claim for service connection for a right knee disability, which was reconsidered and continued in the December 2012 rating decision. The December 2012 rating decision also denied service connection for a left knee disability and bilateral hearing loss. A June 2013 rating decision granted service connection for left ear hearing loss and assigned a noncompensable rating effective May 25, 2012. In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence has been received to reopen the claim for entitlement to service connection for right ear hearing loss. The Veteran’s claim for service connection for right ear hearing loss was denied in a May 2000 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran had right ear hearing loss for VA purposes. At the time of the May 2000 rating decision, the evidence of record included service treatment records. The Veteran was notified of the decision and his appellate rights in May 2000. However, he did not file a notice of disagreement in response to the rating decision. No further communication regarding his claim was received until May 2012, when VA received his petition to reopen. Therefore, the May 2000 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the May 2000 rating decision includes the Veteran’s testimony from the September 2017 Board hearing; the September 2011 VA examination report; the September 2012 addendum opinion; service treatment records; VA treatment records; and a private medical opinion submitted by Dr. J. B in June 2013. Notably, the June 2013 private medical opinion indicates that the Veteran had hearing loss due to his military service. As Dr. J. B. did not specify the current degree of hearing loss of the right ear, this evidence suggests that there is a possibility that the Veteran may, in fact, have current right ear hearing loss for VA purposes. The Board finds that such evidence is new because it was not before the RO at the time of the May 2000 rating decision. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection; namely that he currently has hearing loss of the right ear for VA purposes. Thus, the Board finds that the evidence submitted is both new and material, and the claim for entitlement to service connection for right ear hearing loss is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a bilateral knee disability is granted. The Veteran has been diagnosed with mild degenerative joint disease of the bilateral knees. See March 2013 Private Opinion Letter. At the September 2017 Board hearing, the Veteran testified that he injured his knees during service due to climbing ladders, crawling, and ducking while working in engineering. See September 2017 Hearing Testimony p. 13. The Veteran’s DD 214 reflects that he served in the gunnery unit, as well as in damage control and as a ship electrical officer during service. In March 2013, the Veteran submitted a medical opinion letter from Dr. B. H., who opined that the bilateral knee disability was more likely than not caused by his military service. She specifically attributed the degenerative joint disease to the Veteran’s in-service duties, including working in gunnery and engineering units, as well as climbing ladders and steps. Dr. B. H. explained that her opinion was based on radiographic evidence, as well as the Veteran’s work history, which resulted in chronic overuse. The Board is persuaded by the March 2013 medical opinion letter, which indicates that the current bilateral knee disability is related to the Veteran’s military service and finds it to be the only probative medical opinion of record. Thus, the evidence demonstrates that the Veteran’s bilateral knee disability was at least as likely as not related to his military service. The benefit sought on appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. REASONS FOR REMAND 1. The issue of entitlement to service connection for right ear hearing loss is remanded. As discussed above, the Veteran has submitted evidence indicating that he may currently have a diagnosis of right ear hearing loss for VA purposes. Thus, the Board finds that a new VA audiological examination is warranted to determine the severity of the Veteran’s claimed right ear hearing loss. 2. The issue of entitlement to an initial compensable rating for left ear hearing loss is remanded. At the September 2017 Board hearing, the Veteran testified that his service-connected left ear hearing loss had worsened in severity. Specifically, he stated that he had trouble hearing other people during conversations. See September 2017 Board Hearing Transcript p. 3. Additionally, post-service VA treatment records reflect that the Veteran reported gradual changes in his hearing since his VA examination in September 2011. See VA Treatment Record dated September 6, 2017. Based on the Veteran’s testimony of worsening symptomatology, the medical evidence of record, and the fact that his last VA examination related to his hearing loss took place in September 2011, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected left ear hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the complete results of the audiological evaluation from September 6, 2017 have not been associated with the record. Therefore, on remand, efforts must be made to obtain these outstanding records. The matters are REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to his hearing loss, with the claims file, to include the VA audiological evaluation dated September 6, 2017. 2. Schedule the Veteran for a VA examination with an appropriate medical professional for an opinion as to the existence and etiology of the claimed right ear hearing loss disability, as well as the severity and extent of his service-connected left ear hearing loss. The record should be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to review all pertinent records associated with the claims file, particularly the post-service treatment records, the June 2013 private opinion letter, and the Veteran’s lay statements. The VA examiner should use diagnostic testing to determine the extent to which the Veteran suffers from current hearing loss of the right ear. The VA examiner should provide a medical opinion addressing whether it is at least as likely as not that any diagnosed right ear hearing loss had its onset in service or is otherwise related to an in-service disease or injury. The VA examiner should also opine as to the current level of severity of the service-connected left ear hearing loss. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s left ear hearing loss. The examiner should specifically indicate the reasons and bases for the conclusions expressed. If the examiner is unable to offer the requested opinion, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel