Citation Nr: 18160015 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-49 572 DATE: December 20, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a back condition is granted. REMANDED Entitlement to service connection for a back disability, to include spondylolisthesis with bilateral spondylolysis and degenerative disc disease of the lumbosacral spine, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. FINDINGS OF FACT 1. In a final January 2005 rating decision, the regional office (RO) declined to reopen the Veteran’s claim of entitlement to service connection for a back condition. 2. Evidence received since the January 2005 rating decision relates to previously unestablished elements of the claim for service connection for a back condition and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a back condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1974 to May 1976. The matter of entitlement to service connection for a back disability, to include spondylolisthesis with bilateral spondylolysis and degenerative disc disease of the lumbosacral spine, comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision that declined to reopen the Veteran’s claim on the basis that evidence submitted since the last final decision was not new and material. The Veteran originally filed his claim for service connection for a back condition in August 1981 and it was denied in a January 1982 rating decision. The Veteran did not appeal this decision. In November 2004, the Veteran filed a claim for service connection for “lumbar herniated discs at L-4 and L-5.” The RO interpreted the claim as a petition to reopen the previous claim for a back condition and, in the January 2005 rating decision that followed, the RO declined to reopen the claim on the basis that the evidence submitted since January 1982 was not new and material. The Veteran did not appeal this decision. Finally, the Veteran filed a claim for service connection for chronic lower back pain in December 2010. In April 2013, the RO appears to have reopened the Veteran’s claim for a back condition, but it denied this claim on the merits because there was no evidence of a link between the Veteran’s back condition and his military service. The Veteran filed a Notice of Disagreement in May 2013. After no action was taken on this claim, the Veteran refiled his claim for a back condition (now characterized as spondylolisthesis with bilateral spondylolysis and degenerative disc disease of the lumbosacral spine). The RO interpreted this claim as a petition to reopen the 1982 claim for a back condition and, in a June 2016 decision, it declined to reopen the matter on the basis that any evidence submitted was not new and material. Although the RO declined to reopen the claim, the Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 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 the 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 prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA does not limit its consideration to whether the new evidence relates specifically to the reason why the claim was last denied. Instead, it asks whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. As noted above, the Veteran’s back claim was most recently, finally denied in the January 2005 rating decision. At that time, the RO declined to reopen the Veteran’s claim for service connection for a back disability, indicating the Veteran failed to present new and material evidence showing that his current back pain was related to his period of active service. The Veteran filed his present claim for service connection in December 2010. Evidence received since the January 2005 denial includes a March 2013 VA examination report noting that the Veteran has spina bifida which clearly and unmistakably pre-existed his active service. Additionally, the Veteran submitted a claim in May 2017 indicating that his back condition is secondary to his left knee disability. This evidence is new, as it was not before the RO when the prior final decision was rendered. This evidence is presumed credible and explores alternate theories of entitlement to service connection. When considered with the remaining evidence of record, including complaints of ongoing back pain and treatment since service and the April 2013 rating decision granting service connection for the Veteran’s left knee degenerative joint disease, this evidence is considered material to the Veteran’s claim. For these reasons, the Board finds that new and material evidence sufficient to reopen the Veteran’s claim for service connection has been received, and this claim is reopened. See 38 C.F.R. § 3.156. The Board finds, however, that a remand for additional development is necessary prior to rendering a decision on this matter. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include spondylolisthesis with bilateral spondylolysis and degenerative disc disease of the lumbosacral spine, is remanded. Initially, the Board notes that in 2004, the Veteran reported that he received treatment for back pain at “John Sealy Hospital / Clinic in Galveston” in the 1970s and 1980s; however, these records are not associated with the claims file. While on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (stating [i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records). If the additional treatment records are obtained, an addendum opinion should be requested from the February 2017 VA examiner regarding whether it is at least as likely as not that the Veteran’s claimed back disability had its onset in or is otherwise related to his period of active service in light of this medical evidence. Additionally, the RO obtained a medical opinion in June 2017 addressing whether the Veteran’s low back disability is secondary to his service-connected left knee disability. The examiner found that the back disability was less likely than not proximately due to or the result of the Veteran’s service-connected left knee disability. Specifically, the examiner indicated that there is no medical literature to suggest that degenerative knee disease can cause spondylolisthesis with bilateral spondylosis and degenerative disc disease. Unfortunately, there is no discussion with respect to aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, the opinion is found inadequate to adjudicate the Veteran’s claim and an addendum opinion should be obtained. Finally, the claims file contains VA treatment records only as recent as September 2017. On remand, updated VA treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA and, as such, should be obtained and included in the record). 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. These matters come to the Board on appeal from a September 2015 rating decision. The Veteran was afforded a VA examination in August 2015, at which he was diagnosed with bilateral hearing loss and tinnitus. However, in finding that the Veteran’s conditions were less likely than not related to service, the examiner provided an inadequate rationale. Specifically, in finding no nexus between service and hearing loss, he relied only on the fact that the Veteran’s enlistment and separation audiograms revealed normal hearing acuity bilaterally with no significant threshold shifts. It is well established that normal hearing at separation does not necessarily indicate that the Veteran did not experience in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for 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. Id. Thus, the fact there was no disability in service does not generally serve as a sufficient basis to determine no nexus exists. Accordingly, the August 2015 opinion is found inadequate and an addendum opinion should be obtained. Additionally, regarding tinnitus, the examiner found that the Veteran’s tinnitus is etiologically related to his hearing loss. As such, this claim is intertwined with the underlying hearing loss claim and must be remanded. 4. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. This matter comes to the Board on appeal from a March 2015 rating decision that continued the Veteran’s 10 percent disability rating for this condition. Unfortunately, this matter must also be remanded for a new examination because the Veteran’s most recent VA examination, in September 2017, failed to generate useful data upon which the Board can base a decision. The Veteran’s knee disability is currently rated under Diagnostic Codes (DC) 5260 and 5010. 38 C.F.R. § 4.71a. DC 5010 (arthritis, due to trauma, substantiated by x-ray findings) is rated as degenerative arthritis under DC 5003 which provides that ratings are to be based on limitation of motion for the specific joint involved. In this case, the Veteran is currently rated under DC 5260 that measures limitation of flexion of the leg. At the Veteran’s September 2017 VA examination, the examiner noted that the Veteran’s flexion was 0 to 30 degrees and that his extension was 30 to 0 degrees. However, the examiner remarked that the “Veteran refuses to move knee secondary to pain to hip and back pain.” He added that any determination of the functional impact of the Veteran’s knee disability is “obscured since the Veteran was uncooperative in movement of knee in either supine or standing position secondary to back pain.” This is in contrast to the Veteran’s previous VA examination that took place only a few months prior, in February 2017, at which his flexion was measured at 0 to 90 degrees and his extension was measured at 90 to 0 degrees. Given the vast discrepancy in examination results observed only months apart coupled with the Veteran’s unwillingness to move his knee due to pain at his most recent examination, the Board finds that a new examination is warranted to ensure that a decision on this matter is based on an accurate assessment of the Veteran’s condition. The examination must also comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and provide range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records pertinent to his claims, to include treatment for his back condition at “John Sealy Hospital / Clinic in Galveston” in the 1970s and 1980s and associate all records with the claims file. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Thereafter, request an addendum opinion from the February 2017 VA examiner or another appropriate examiner. The claims folder should be made available to the examiner for review. If an additional examination is deemed warranted, one should be arranged. Any indicated studies, including imaging studies, should be performed. The examiner should provide an opinion on the following: (a.) Whether the Veteran’s claimed low back disability is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including the Veteran’s repeated complaints of back pain during service, in light of any newly obtained medical evidence. The examiner’s attention is drawn to the Veteran’s reports of ongoing back pain since service and his reported treatment in the 1970s and 1980s for back complaints. (b.) Whether the Veteran’s claimed low back disability was at least as likely as not (50 percent or greater probability) caused by his service-connected left knee disability. (c.) Whether the Veteran’s claimed low back disability was at least as likely as not (50 percent or greater probability) aggravated by his service-connected left knee disability. A complete rationale must be given for all opinions and conclusions expressed. 4. After completing directives (1) and (2), request an addendum opinion from the August 2015 VA examiner or another appropriate examiner regarding the nature and etiology of the Veteran’s bilateral hearing loss. The claims folder should be made available to the examiner for review. If an additional examination is deemed warranted, one should be arranged. Any indicated studies should be performed. The examiner should opine whether the Veteran’s bilateral hearing loss is at least as likely as not (50 percent or greater probability) related to the Veteran’s in-service noise exposure. The examiner is asked to specifically consider the Veteran’s military occupational specialty of Vulcan Crewman (16RI0) and the Veteran’s multiple lay statements setting out his exposure to tank fire, gun fire, and loud explosions without adequate hearing protection. The examiner must consider that the absence of hearing loss at the time of service separation is not fatal to a claim for service connection, unless a late onset of hearing loss is not medically plausible. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A complete rationale must be given for all opinions and conclusions expressed. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease of the left knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. As part of the examination, the examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios, and, if applicable, with the range of the opposite undamaged joint. The examiner must specifically identify the points, if any, at which pain begins. If any such test is not conducted, the examiner must explain why such test was not necessary. (Continued on the next page)   The examiner must also note whether there are further functional limitations of the left knee due to pain, weakness, fatigue or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel