Citation Nr: 19132002 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 18-01 442 DATE: April 24, 2019 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded for additional development. Entitlement to service connection for a left leg disability is remanded for additional development. Entitlement to a compensable rating for residuals of a left knee disability is remanded for additional development. Entitlement to an increased rating in excess of 30 percent for post-traumatic stress disorder is remanded for additional development. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for bilateral hearing loss was most recently denied in a May 2006 rating decision. The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the May 2006 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The criteria for reopening the claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1960 to February 1977. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Roanoke, Virginia. The Board notes that there is an outstanding claim for apportionment that has been filed by the Veteran’s wife; as that claim is a distinct and more recent appeal stream involving a different appellant, it will be addressed by the Board in a separate decision at a later date. Claim to Reopen The Veteran’s claim for entitlement to service connection for bilateral hearing loss was initially denied in a May 2006 rating decision, as the RO determined that the evidence did not show that the Veteran was currently diagnosed with bilateral hearing loss. The record reflects that the Veteran neither timely filed a Notice of Disagreement in response to either decision, nor submitted new evidence during the 1-year period following the issuance of this decision. Accordingly, the May 2006 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). The Veteran subsequently filed to reopen his claim for entitlement to service connection for bilateal hearing loss in April 2015, noting that he had not been able to attend any VA examinations due to his incarceration. He also notified the RO of where he was incarcerated and submitted multiple lay statements describing his combat experiences while in service. Prior to making a determination with respect to the Veteran’s claim of service connection for bilateral hearing loss, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claims. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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(a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, 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). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the new lay statements generated after the issuance of the May 2006 rating decision to constitute “new” evidence, as they were not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as there is a suggestion that there may be a connection between the Veteran’s claimed bilateral hearing loss and his active service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for bilateral hearing loss. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss and for a left leg disability, as well as entitlement a compensable rating for residuals of a left knee disability as well as entitlement to an increased rating in excess of 30 percent for post-traumatic stress disorder are all remanded. The Veteran, who is currently incarcerated, has asserted that he has sustained bilateral hearing loss as well as a left leg wound as a result of his active service. Specifically, he has asserted that his bilateral hearing loss is associated with noise exposure as well as a left leg wound due to an enemy attack with a punji stick during combat while deployed to Vietnam. He further maintains that higher ratings are warranted for his service-connected residuals of a left knee disability, currently assigned a noncompensable rating, and for his service-connected post-traumatic stress disorder (PTSD), currently assigned a 30 percent evaluation. In conjunction with these four claims, the RO sent the Veteran a letter in June 2015 attempting to schedule VA examinations; in August 2015, the RO sent the Veteran another letter requesting his inmate number as well as the location of the correctional facility where he was currently incarcerated in order to schedule examinations for him at that location. In August 2015, the Veteran complied, submitting his inmate number and the address of the correctional facility where he was incarcerated as well as a treatment record from his facility that also contained this information. However, in a decision generated that same month, the RO denied the Veteran’s claims for increased evaluations for his service-connected PTSD and residuals of a left knee disability on the grounds that the Veteran’s response “did not include the information we requested;” his claim for service connection for a left leg wound was denied on the grounds that “the medical evidence of record fails to show that this disability has been clinically diagnosed;” and declined to reopen the Veteran’s claim for bilateral hearing loss. As previously discussed earlier above, on the basis of new and material evidence, the Board has reopened this last claim. In response to the August 2015 rating decision, the Veteran filed a timely Notice of Disagreement in October 2015, where he again provided the address of the correctional facility where he was incarcerated; a review of this piece of evidence reflects that the envelope associated with the Veteran’s Notice of Disagreement lists his inmate number as well as the address of the correctional facility where he is currently incarcerated. Further, in conjunction with his Notice of Disagreement, the Veteran also submitted a lay statement where he again provided the address of the correctional facility where he was incarcerated as well as his inmate number; a review of this piece of evidence reflects that he wrote his inmate number next to the address of the correctional facility printed on the front of the envelope and circled both for emphasis. In November 2016, the Veteran submitted another lay statement in which he again provided the address of the correctional facility where he was incarcerated. In December 2017, the RO issued a Statement of the Case again denying the Veteran’s claims for entitlement to service connection for a left leg disability on the grounds that “the medical evidence of record fails to show that this disability has been clinically diagnosed;” the Veteran’s claims for entitlement to an increased evaluation for service-connected PTSD and residuals of a service-connected left knee disability were denied because the Veteran “was unable to attend a VA examination;” in addition to declining to reopen the Veteran’s claim for entitlement to service connection for bilateral hearing loss, the RO further stated that the Veteran “[had] not provided your inmate number or a point of contact for us at the correctional institution” and as a result, the RO was “unable to reschedule the exams at this time.” In January 2018, the Veteran timely filed a Form 9; a review of this piece of evidence reflects that he again wrote his inmate number next to the address of the correctional facility where he was incarcerated, which was printed on the envelope. The evidence of record reflects that the Veteran has provided his inmate number and the address of the correctional facility where he was incarcerated at least four times to the RO between August 2015 and January 2018. The United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated Veterans are entitled to the same care and consideration given their fellow Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (noting that if VBA cannot arrange for an examination, it must document efforts to do so in the claims file and concluding that the Court could not “lightly infer that the duty to assist a Veteran in developing his [sic] claim applies any less to an incarcerated veteran than to a non-incarcerated veteran”). VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Id. at 191. In light of the Veteran’s multiple efforts to provide the requested information regarding his inmate number and the address of the correctional facility where he was located between 2015 and 2018, upon remand, the AOJ should take all appropriate steps and make documented attempts to schedule the Veteran for VA examinations in support of his claims for entitlement to service connection for bilateral hearing loss; entitlement to service connection for a left leg disability; entitlement to an compensable rating for residuals of a service-connected left knee disability; and entitlement to an increased evaluation for service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records for the Veteran from the correctional facility where he is currently incarcerated. All attempts to obtain these records must be documented and associated with the claims file. 2. Contact the Veteran to determine if there are any previous correctional facilities where he was incarcerated, and obtain any medical records for the Veteran from those facilities. All attempts to obtain this information from the Veteran as well as to obtain the corresponding records must be documented and associated with the claims file. 3. After the preceding development in paragraphs 1 and 2 is completed, schedule the Veteran for VA examinations in the appropriate specialties to determine the nature and etiology of 1) any bilateral hearing loss disability and 2) any left leg disability that may be present, as well as the current severity of his 3) service-connected PTSD and 4) service-connected left knee disability. The examinations should include any diagnostic testing or evaluation deemed necessary for each claimed disability. The claims file must be made available for the examiner to review in conjunction with each examination. If the Veteran remains incarcerated, the AOJ should take all reasonable measures to schedule the Veteran for the examination requested and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. The AOJ should determine which option is the most feasible and document all attempts taken under Bolton to schedule the Veteran for a VA examination related to his claim. In particular, the AOJ should make documented attempts to verify the Veteran’s inmate number and correctional facility, as most recently provided on the January 2018 Form 9 with associated envelope listing the address of the Veteran’s correctional facility as well as his inmate number. All documented attempts should be associated with the claims file. The examiner is asked to provide an answer to the following questions: (a.) With respect to any identified hearing loss disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. (b.) With respect to any identified left leg disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. A complete rationale must be provided for any opinion offered. 4. Thereafter, the AOJ should readjudicate the claims for 1) entitlement to service connection for a bilateral hearing loss disability, 2) entitlement to service connection for a left leg disability, 3) entitlement to a compensable rating for residuals of a service-connected left leg disability, and 4) entitlement to an increased rating in excess of 30 percent for service-connected PTSD. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his representative, if any, and allow them an opportunity to respond. Then, return the case to the Board. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel