Citation Nr: 18156523 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-30 929 DATE: December 11, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for bilateral hearing loss is granted. New and material evidence having been received, the petition to reopen a claim of service connection for tinnitus is granted. Entitlement to an increased rating for degenerative joint disease of the right knee, currently rated as 10 percent disabling is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In January 2008, the RO denied the Veteran’s petition to reopen a claim of service connection for hearing loss. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision’s issuance, 2. Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. In January 2008, the RO denied the Veteran’s petition to reopen a claim of service connection for tinnitus. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision’s issuance. 4. Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 5. The Veteran’s degenerative joint disease of the right knee is not manifested by flexion limited to 30 degrees; limitation of extension; or recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The January 2008 RO rating decision denying the Veteran’s application to reopen a service connection claim for hearing loss is final. 38 U.S.C. § 7105. 2. Evidence received since the January 2008 RO rating decision is new and material; accordingly, the claim for service connection for hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2008 RO rating decision denying the Veteran’s application to reopen a service connection claim for tinnitus is final. 38 U.S.C. § 7105. 4. Evidence received since the January 2008 RO rating decision is new and material; accordingly, the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran’s service-connected degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5256-5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is “new and material.” See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define “new and material evidence”) provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran’s claims of service connection for hearing loss and tinnitus were originally denied in an October 1995 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). Subsequent applications to reopen these claims were denied by the RO in February 2003, March 2005, and January 2008. Following each decision, the Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decisions. As such, the decisions became final. The January 2008 rating decision represents the most recent final denial. The evidence on record at the time of the January 2008 denial included service treatment records (from active duty service, reserve duty, and National Guard duty); and audiology examinations dated May 1986 through September 2007. The RO has consistently denied the claims on the basis that hearing loss was not documented until 1986 (more than 20 years following active duty service). Evidence received since the January 2008 rating decision includes a May 1986 report from Salem Audiology Clinic reflecting the Veteran’s report of gradual hearing loss “over many years.” It also includes testimony rendered at a February 2018 Board hearing. At the hearing, the Veteran testified that he reported hearing loss when he entered the Reserves in 1969 (just two years after service). He also testified that tinnitus is not noted in the record because he does not have “ringing” in his ears. Instead, he describes his symptoms as “wind noise” in his ears. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the Salem Audiology Clinic report and the Veteran’s testimony meets the low threshold of 38 C.F.R. § 3.156(a) and is new and material evidence to reopen the Veteran’s claims. It indicates that the Veteran experienced hearing loss much earlier that 1986 (thereby putting its onset closer to service) and that he may have had tinnitus much earlier than documented because he describes his symptoms as something other than “ringing.” Consequently, the onset of symptoms may be much earlier than 1986. This thereby addresses the basis for the prior denials. As new and material evidence has been received to reopen the claims, the claims for entitlement to service connection are reopened.   Entitlement to an increased rating for degenerative joint disease of the right knee, currently rated as 10 percent disabling Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s service-connected degenerative joint disease of the right knee has been rated by the RO under the provisions of Diagnostic Code 5260. Pursuant to this Diagnostic Code, a 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. To warrant a rating greater than 10 percent, the Veteran’s disability would need to be manifested by leg flexion limited to 30 degrees. The Veteran underwent a VA examination in April 2017. He achieved right knee flexion to 80 degrees. Decreased motion was due to pain on flexion. The examiner also noted evidence of pain on weight-bearing, as well as objective evidence of moderate tenderness on palpation of the joint line and patellar regions. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional limitation of motion following repetitive use testing. The Veteran reported that he also experienced flare-ups. He stated that all standing and walking hurts. He stated that he could not bend the knee due to pain. The examiner acknowledged that the examination was not taking place a flare-up. He estimated that weakness, fatigability and/or incoordination would additionally limit functionality. He estimated that flexion would be limited to 75 degrees. The Board notes that this amount of flexion would not satisfy the criteria for a rating in excess of 10 percent. At his February 2018 Board hearing, the Veteran testified that he thought the examination was inadequate and that the range of motion reported was not accurate. In this case, the Board has reviewed the VA examination report and finds no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. The examination provided range-of-motion measurements in degrees, and included other findings relevant to assessing the severity of the Veteran’s service-connected right knee disability. Since the examination report shows specific numerical measurements of right knee flexion and extension, the Veteran’s assertions alone do not represent clear evidence that the examiner did not properly perform the examination in measuring the range of motion. Indeed, the law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). The presumption of regularity is not absolute and may be rebutted by the submission of “clear evidence to the contrary.” Warfield v. Gober, 10 Vet. App. 483, 486 (1997). Evidence meeting such standard for rebutting the presumption has not been presented here. The Board recognizes that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. §4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent rating is warranted for leg extension limited to 15 degrees. A 30 percent rating is warranted for leg extension limited to 20 degrees. A 40 percent rating is warranted for leg extension limited to 30 degrees. A 50 percent rating is warranted for leg extension limited to 45 degrees. In this case, the Veteran was shown to have extension to 0 degrees at his April 2017 VA examination. Even when the examiner considered additional limitation due to flare-ups, he estimated that the Veteran would still be able to achieve full extension (to 0 degrees). Consequently, a separate rating under Diagnostic Code 5261 is not warranted. Additionally, the Board notes that the law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Pursuant to 38 C.F.R. § 4.71a (Diagnostic Code 5257), a rating of 10 percent is warranted when the Veteran experiences slight subluxation or lateral instability. A rating of 20 percent is warranted when the Veteran experiences moderate subluxation or lateral instability. A rating of 30 percent is warranted when the Veteran experiences severe subluxation or lateral instability. The April 2017 VA examination report reflects that the Veteran used a cane and a brace. However, the April 2017 VA examiner performed joint stability tests and found that there was no instability or subluxation. Based on the objective findings of the April 2017 VA examinations, the Board finds that a separate rating for instability is not warranted. Finally, the Board acknowledges that Diagnostic Codes 5262 allows for a higher rating for ankylosis. No such increased rating is warranted in so far as ankylosis has not been shown. To the contrary, the April 2017 VA examiner specifically found that there was no ankylosis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 degrees for the Veteran’s right knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). REASONS FOR REMAND Entitlement to service connection for hearing loss and tinnitus At the outset, the Board notes that audiology testing standards were set by the American Standards Association (ASA) prior to 1967. After that date, audiometric testing was generally conducted using ISO (International Standards Organization) or ANSI (American National Standards Institute) measurements. Current VA regulations which define hearing loss for VA purposes are based on decibel (dB) measurements recorded in ISO-ANSI units. See 38 C.F.R. § 3.385. Accordingly, VA uses a system to convert ASA units to ISO units that adds 15 dB to 500 Hz, 10 dB to 1000, 2000, and 3000 Hz, and 5 dB at 4000 Hz. At the Veteran’s March 1963 enlistment examination, puretone thresholds for the ears were as follows (after converting from ASA to ISO units):   HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 10 LEFT 15 5 0 10 0 At his June 1967 separation examination, the Veteran only underwent a whisper voice test (which yielded normal findings). However, in a June 1969 Report of Medical History, the Veteran checked “yes” when asked if he had hearing loss. In a May 1973 Report of Medical History, he checked “Don’t Know” when asked if he had hearing loss. He underwent a May 1973 examination and puretone thresholds for the ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 4 3 2 LEFT 7 4 3 2 2 The May 1973 examination does not reveal a hearing loss disability (even when adjusted via the conversion from ASA to ISO units). However, it does show a decrease in hearing when compared to the March 1963 enlistment examination. The Veteran underwent an audiologic examination in June 1977. Puretone thresholds for the ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 0 40 75 LEFT 15 10 5 10 25 The June 1977 examination report reflects a hearing loss disability in the right ear. The Veteran underwent a VA examination in November 2015. The examiner rendered a negative nexus opinion based largely on the belief that there was no hearing loss until 1986. The Board notes that the examiner failed to note the right ear hearing loss disability in June 1977; the fact that only a whisper voice test was administered upon separation from active duty in June 1967; the fact that first audiogram following service (May 1973) reflects a threshold shift at some thresholds compared to the Veteran’s March 1963 enlistment examination; and the fact that the Veteran reported hearing loss in June 1969 (but was once again only provided with a whisper voice test). Finally, the Board notes that the examiner did not have access to the May 1986 report from Salem Audiology Clinic in which the Veteran reported gradual hearing loss “over many years.” Consequently, the Board finds that the November 2015 examination report is inadequate and that a new VA examination is warranted. With regards to tinnitus, the Board finds that it is inextricably intertwined with the issue of entitlement to service connection for hearing loss. Additionally, the Board notes that the November 2015 examiner rendered a negative nexus opinion with regards to the Veteran’s tinnitus on the basis that it was not reported during service; and the fact that he specifically denied it in a 1987 audiological report. The Veteran provided testimony that he denied tinnitus because he does not have “ringing” in his ears. Instead, he has a “wind noise.” This testimony should be considered when rendering a nexus opinion. Entitlement to an increased rating for degenerative joint disease on the right knee, currently rated as 10 percent disabling. The Veteran underwent a VA examination in April 2017. He testified that he thought the examination was inadequate and that the range of motion reported was not accurate. The matters are REMANDED for the following action: Schedule the Veteran for an audiologic examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hearing loss and tinnitus. The examiner must opine whether it is at least as likely as not that they are related to an in-service injury, event, or disease, including excessive noise exposure that has been conceded. (Continued on the next page)   About tinnitus, the examiner must also opine whether it is at least as likely as not (1) proximately due to hearing loss, or (2) aggravated beyond its natural progression by hearing loss. The examiner should note that the Veteran reported hearing loss in June 1969; that the May 1973 and June 1977 audiological examinations reflect a gradual loss of hearing (including a hearing loss disability in the right ear in June 1977); and that in May 1986, the Veteran reported a gradual loss of hearing “over many years. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel