Citation Nr: 18106901 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-21 063A DATE: June 1, 2018 ORDER Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss is granted. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Whether new and material evidence has been received to reopen a claim for service connection for a back disability is remanded. Whether new and material evidence has been received to reopen a claim of service connection for a left hip disability is remanded. Whether new and material evidence has been received to reopen a claim of service connection for basal cell carcinoma is remanded. Entitlement to an initial evaluation in excess of 10 percent for diabetes mellitus is remanded. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for amputation, s/p neuropathic ulcer, big toe, left foot is remanded. Entitlement to service connection for a stomach condition is remanded. Entitlement to service connection for sores, left leg is remanded. Entitlement to an evaluation in excess of 20 percent for status post medial meniscectomy, left knee, prior to August 17, 2015 is remanded. Entitlement to an evaluation in excess of 10 percent for status post total left knee arthoplasty (previously rated as degenerative joint disease (DJD) and medial meniscectomy of the left knee) prior to August 17, 2015, and in excess of 30 percent from October 1, 2016 is remanded. Entitlement to an evaluation in excess of 10 percent for DJD of the right knee is remanded. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 6, 2015 is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 2004 rating decision denied entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus; the Veteran initiated an appeal of these denials but did not timely perfect his appeal. 2. Evidence added to the record since the June 2004 rating decision is not cumulative and redundant; not previously considered by agency decision makers; relates to an unestablished fact necessary to substantiate the claims seeking service connection for bilateral hearing loss and tinnitus; and raises a reasonable possibility of substantiating the claims. 3. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is the result of in-service noise exposure. 4. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is attributable to in-service noise exposure. CONCLUSIONS OF LAW 1. The June 2004 rating decision denying claims of service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to November 1973. These matters are on appeal from April 2010, January 2011, and January 2012 decisions. Regarding the claim for an increased rating for PTSD, the Board notes that in a September 2017 decision, the Regional Office (RO) granted an increased rating to 100 percent effective November 6, 2015. As the 100 percent rating is the maximum available, the period from November 6, 2015 is not on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Also, in the September 2017 decision, the RO awarded a 100 percent rating for status post total left knee arthoplasty (previously rated as DJD and medial meniscectomy of the left knee) from August 17, 2015 to September 30, 2016, and awarded a 30 percent rating from October 1, 2016. The issues have been recharacterized above. In his June 2014 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested to appear at a hearing before the Board. The Veteran was scheduled for such a hearing in November 2017. Prior to the date of the hearing, the Veteran requested to cancel the hearing and have his case proceed without a hearing. As such, the Veteran’s request for a hearing before the Board is considered to be withdrawn. 38 C.F.R. § 20.704(e). New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing 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). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. A claim for service connection for bilateral hearing loss was originally denied in a June 2004 rating decision on the basis that the service treatment records showed normal hearing at enlistment and separation and that bilateral hearing loss was not related to service. The RO notified the Veteran of its decision, and the Veteran filed a notice of disagreement (NOD) in August 2004. A statement of the case (SOC) was issued in October 2005, but the Veteran did not timely perfect an appeal. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Here, the evidence received since the June 2004 rating decision includes a May 2009 opinion from an ear, nose, and throat (ENT) physician that the Veteran’s hearing loss was most commonly associated with noise trauma experienced during his military service. This evidence was not before adjudicators when the Veteran’s claim was last denied in June 2004, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. A claim for service connection for tinnitus was originally denied in a June 2004 rating decision on the basis that a VA examiner could not relate the Veteran’s tinnitus to his military service. The RO notified the Veteran of its decision, and the Veteran filed an NOD in August 2004. An SOC was issued in October 2005, but the Veteran did not perfect his appeal. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Here, the evidence received since the June 2004 rating decision includes a May 2009 private audiological evaluation, in which a private audiologist noted the Veteran’s noise exposure during service and that he had not worn hearing protection. Based on the history provided and the Veteran’s reports of constant tinnitus, the audiologist opined that the etiology of his auditory dysfunction was more likely than not due to his service. This evidence was not before adjudicators when the Veteran’s claim was last denied in June 2004, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service connection for bilateral hearing loss and tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus, which he contends is due to noise exposure from working on the flight line, from the use of firearms and machine guns in the firing range, and from being exposed to rocket and mortar fire during service with the Air Force. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus and sensorineural hearing loss are “organic diseases of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or during the presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the Board finds that the Veteran currently has bilateral hearing loss and tinnitus. VA examination results from April 2004 and private audiometry results from May 2009 reflect puretone thresholds of 26 decibels or greater at 2000, 3000, and 4000 Hz in each ear. Therefore, the evidence reflects that the Veteran currently has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms of ringing in the ears that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has competently stated that he has ringing in the ears and the Board finds his statements to be credible. As such, the first element of service connection, a current disability, has been met. The Board finds that the Veteran has provided competent and credible reports regarding his noise exposure during active service. Service personnel records note that the Veteran’s military occupational specialty (MOS) was that of an aircraft radio repairman which indicates at least moderate in-service exposure to noise. See Duty MOS Noise Exposure Listing Spreadsheet, M-21.III.iv.4.B.4.e. The Veteran’s reports are also supported by a May 2009 letter from the Veteran’s brother, who indicated that the Veteran wrote him while in service, describing the jet noise from being on the flight line, the mortar and rocket noises hitting the base, and the inadequate hearing protection that he was issued. The Veteran’s brother also stated that when the Veteran returned home, he could tell that the Veteran had difficulty hearing and understanding. The Board finds that the Veteran had in-service noise exposure as it is consistent with the circumstances of the Veteran’s service. 38 U.S.C. § 1154(b). Regarding a relationship to service, an April 2004 VA examiner found that the Veteran’s tinnitus could not be related to his military service, as there was normal hearing shown on separation from service and that the Veteran did not provide a specific date of onset and had noise exposure in construction, welding, and heavy equipment repair as a civilian. The examiner also found that the Veteran’s hearing loss was not a result of his military experience, because his hearing was normal at enlistment in 1969 and normal at separation in 1973. A May 2009 private ENT physician, Dr. B.H., noted that the Veteran presented with a demonstrable hearing loss in both ears, slightly asymmetric in higher frequencies. The sloping mild to severe sensorineural hearing loss in both ears was consistent with significant noise injury from military service. Dr. B.H. indicated that it was his professional opinion that the Veteran’s hearing loss was most commonly associated with noise trauma experienced during service. A concomitant history of noise exposure outside of the military was not a feature of the Veteran’s history. During a May 2009 private audiological evaluation, a private audiologist noted the Veteran’s noise exposure during service and that he had not worn hearing protection. The audiologist did note the Veteran’s post-service employment as a heavy equipment mechanic and pipeline welder. Based on the history provided and the Veteran’s reports of constant tinnitus and bilateral hearing loss, the audiologist opined that the etiology of his auditory dysfunction was more likely than not due to his service. In an August 2009 statement, the Veteran stated that he suffered from hearing loss in service. He worked as a mechanic post service but did not run equipment. As a pipefitter and welder, he drew patterns on pipe where it was to be cut and welded pipe. He also indicated he did not work in a shipyard, foundry, or fabrication shop. He also used a chainsaw to cut occasional tree limbs around his house and used a power mower to mow his lawn. He also indicated he had no idea what tinnitus was until 2004, and all he knew was that he had great difficulty hearing and understanding. Regarding bilateral hearing loss, the April 2004 VA examiner’s opinion is of limited probative weight because it was essentially based solely on a lack of medical evidence of hearing problems in the service treatment records. While the May 2009 private opinion from the ENT physician did not acknowledge the Veteran’s post-service employment, the May 2009 opinion from the private audiologist acknowledged that the Veteran had post-service employment as a mechanic and pipeline welder, but found that his hearing loss was more likely than not due to the Veteran’s service. The Veteran has also provided competent and credible statements as to decreased hearing during service and his lack of exposure to hazardous noise while performing post-service job duties. His statements are also supported by the May 2009 letter from his brother, who indicated that when the Veteran returned home, he could tell that the Veteran had difficulty hearing and understanding. As such, the Board resolves any reasonable doubt in the Veteran’s favor and finds that service connection for bilateral hearing loss is warranted. Regarding tinnitus, while the April 2004 VA examiner could not relate the tinnitus to service, the Veteran indicated that he was unaware of what tinnitus was until 2004, and his job duties did not require him to operate heavy equipment. Both the April 2004 opinion and the May 2009 private audiologist opinion are not particularly thorough and neither opinion warrants significantly more probative value than the other. Therefore, the evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his service. Affording the Veteran the benefit of the doubt, service connection for tinnitus is granted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for amputation, status post neuropathic ulcer, big toe, left foot VA treatment records from January 2016 and January 2017 note that the Veteran has been seeing a private podiatrist, Dr. Shearer, for treatment. There are no records from this provider in the claims file. As treatment records would be relevant to the issue on appeal, remand is required to allow VA to obtain authorization and request these records. Service connection for a stomach condition In a November 2013 VA treatment record, it was noted that the Veteran had a recent endoscopy with a private provider, Dr. Malladi, and an ulcerated mass was found in his duodenum. He was referred to Dr. Duncan, a gastroenterology (GI) specialist. VA treatment records from January 2016 and January 2017 also note that the Veteran has been seeing GI physicians, Dr. Duncan and Dr. Malladi for treatment. There are no records from these providers in the claims file. As treatment records from these providers are relevant to the issue on appeal, remand is required to allow VA to obtain authorization and request these records. New and material evidence-back disability, new and material evidence-left hip disability, new and material evidence-basal cell carcinoma, service connection for left leg sores, and increased rating for PTSD The Veteran has indicated that he receives continuing VA treatment for his disabilities including his back, left hip, and skin. The most recent VA treatment records are from August 2017. Because VA treatment records are in VA’s constructive possession, remand is necessary to obtain all missing records, even if such records may pertain to unrelated issues. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The claims file contains treatment records from the Veteran’s private primary care provider, Dr. C.L., which include treatment for numerous disabilities. However these records are only up to November 2009. A remand is required to allow VA to obtain authorization and request complete treatment records as such records could contain records of treatment pertinent to multiple of the Veteran’s claims. Increased ratings for left knee disability and right knee DJD VA treatment records from January 2016, January 2017, and March 2017 note that the Veteran was receiving treatment from a private orthopedist, Dr. G.D., for his knee disabilities. However, a review of the record reveals that there are only records from 2015 in the claims file. A remand is required to allow VA to obtain authorization and request these records. Also, the Veteran’s last VA examination of his left knee was in April 2015. Private treatment records from August 2015 indicate that the Veteran underwent a total left knee arthoplasty. VA treatment records from January 2017 note that the Veteran complained of popping, pain, and falling a lot due to weakness and instability in the left leg. Based on the increasing severity of his symptoms, the Veteran should be provided a contemporaneous VA examination to ascertain the current severity and manifestations of his service-connected left knee disabiltiy. Increased rating for diabetes mellitus, left upper extremity peripheral neuropathy, right upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy In a September 2017 rating decision, the RO severed service connection for diabetes mellitus, left upper extremity peripheral neuropathy, right upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, all effective December 1, 2017. While it does not appear from the record thus far that the Veteran has initiated an appeal of the September 2017 severance decision by filing an NOD, the appeal period has not yet expired. In this regard, the Veteran and his representative have until one year after notice of the September 2017 decision has been mailed to the Veteran to file a NOD on a proper form. 38 C.F.R. §§ 20.201, 20302. The impact of the September 2017 severance determination to these pending claims is of particular significance when considering that a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1). Accordingly, the Veteran’s increased rating claims as they pertain to his diabetes mellitus and peripheral neuropathy of the upper and lower extremities must be deferred until either a timely NOD is filed regarding the September 2017 severance determination or until the appeal period expires. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Entitlement to TDIU Finally, because a decision on the issues remanded could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Dr. Shearer (podiatrist), Dr. Duncan and Dr. Malladi (GI), Dr. C.L. (primary care), and Dr. G.D. (orthopedic). After receipt of any completed VA Form 21-4142 from the Veteran, make two requests for the authorized records from these treatment providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 3. Schedule the Veteran for an examination of the current severity of his status post total left knee arthoplasty (previously rated as DJD and medial meniscectomy 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. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. At the expiration of the one-year appeal period of the September 2017 severance determination regarding service connection for diabetes mellitus, left upper extremity peripheral neuropathy, right upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, or after taking appropriate action in the event that the September 2017 determination is timely appealed; the case should be reviewed with consideration of the additional evidence and after any additional development that is deemed appropriate is undertaken. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel