Citation Nr: 20005166 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-10 254 DATE: January 22, 2020 ORDER The petition to reopen the previously denied claim for service connection for sensorineural hearing loss of the left ear is denied. The petition to reopen the previously denied claim for service connection for degenerative arthritis of the lumbar spine is denied. REMANDED Entitlement to a compensable rating for sensorineural hearing loss of the right ear is remanded. Entitlement to a rating higher than 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to service connection for right hip disorder, to include as secondary to service-connected patellofemoral pain syndrome of the right knee, is remanded. Entitlement to service connection for left knee disorder, to include as secondary to service-connected patellofemoral pain syndrome of the right knee, is remanded. FINDINGS OF FACT 1. The December 1998 Regional Office (RO) decision denying service connection for left ear hearing loss is final; evidence received since the prior final disallowance includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen a claim for left ear hearing loss. 2. The September 2002 RO decision denying service connection for a back condition is final; evidence received since the prior final disallowance includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen a claim for lumbar spine disability. CONCLUSIONS OF LAW 1. The December 1998 rating decision denying the claim for service connection for left ear hearing loss is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 2. The September 2002 rating decision denying the claim for service connection for a back condition is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1994 to November 1998. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a May 2015 rating decision by the Department of Veterans Affairs (VA) RO. The Veteran testified at an October 2019 hearing before the undersigned acting Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Reopening Previously Denied Claims A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Reopening the previously denied claim for service connection for left ear hearing loss A December 1998 rating decision denied the claim for service connection for left ear hearing loss as it existed prior to service without evidence of aggravation during service. The RO found that the left ear hearing loss existed prior to service and the minor degradation in service was considered to be normal progression. Evidence considered included service treatment records, lay statements, and a July 1998 VA examination. An August 1994 service entrance examination documented discrimination of 50 decibels at 4000 Hertz; discrimination at the 500 to 3000 thresholds were within normal limits and a June 1995 audiological evaluation reflected identical findings. A June 1998 reference audiogram reflected discrimination of 55 decibels at 4000 Hertz. The Veteran waived an examination on separation. A December 1998 letter notified the Veteran of this decision and how to appeal. VA received no appeal and no new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). In November 2014, VA received a claim for hearing loss. As the Veteran was already service connected for right ear hearing loss and entitlement to service connection for left ear hearing loss had been previously denied, the RO construed the claim as requests for an increased rating for right ear hearing loss and a petition to reopen the previously denied claim for service connection for left ear hearing loss. In a May 2015 rating decision, the RO denied the petition to reopen because VA examination report found “no clinically significant threshold shifts in [the left] ear during your active duty service.” The Veteran appeals this decision to the Board. Evidence received since the December 1998 rating decision does not cure any prior evidentiary defect. The evidence submitted since the prior final denial consists of lay statements and an April 2015 VA examination, which chronicle a history of increased left ear hearing loss. The April 2015 VA examination report shows a diagnosis of left ear hearing loss which preexisted military service. The recent evidentiary submissions do not tend to show that the Veteran’s left ear hearing loss had its onset in service or permanently worsened as a result of service. Hence, while it was not considered by adjudicators at the time of the prior final disallowance, it is not new and material evidence. Accordingly, the petition to reopen is denied. 2. The petition to reopen the previously denied claim for service connection for degenerative arthritis of the lumbar spine. A September 2002 rating decision denied the claim for service connection for a back condition because the evidence did not show that the disability occurred in nor was caused by service. Notably, the Veteran had no diagnosed medical condition, and pain reported in service was considered to be an acute condition with no residuals. Evidence considered included the service treatment records, private medical records, February 2002 VA examination, and the Veteran’s lay statements. A July 1996 service treatment note reflected the Veteran’s reports of lower back pain for six months; he was instructed to stretch, apply moist heat, use Motrin, and return to the clinic if needed or symptoms increased. No further treatment for back pain is documented in the record. A September 2002 letter notified the Veteran of this decision and how to appeal. VA received no appeal and no new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). In November 2014, VA received a claim for a back condition. As the claim for entitlement to service connection for a back condition had been previously denied, the RO construed the claim as a petition to reopen the previously denied claim for service connection for a back condition. In a May 2015 rating decision, the RO denied the petition to reopen because the evidence did not show that the condition was continuous in service or developed to a compensable degree within one year of separation from service. Evidence received since the September 2002 rating decision does not cure any prior evidentiary defect. The evidence submitted since the prior final denial consists of lay statements, private treatment records, and a March 2015 VA examination, which do not tend to show that a back disability developed in service. The May 2015 VA examination report diagnosed degenerative arthritis of the lumbar spine and reflects the Veteran’s reports that he had had no treatment for back pain since service. None of the recent evidentiary submissions tend to show that the Veteran has a back disability that either had its onset in service or is otherwise related to in-service injury or disease. Moreover, while the Veteran has more recently asserted that his lumbar spine disability is due to his service-connected right knee disability, he has not presented any new and material evidence to support that theory of entitlement. It is noted that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009). Further, a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b) unless the evidence supporting a new theory of entitlement constitutes new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Identifying the etiology of degenerative arthritis of the lumbar spine is beyond the competence of the Veteran as he is not a medical professional. See Justus. In this case, no new and material evidence has been presented. Given the above, the Board concludes that new and material evidence has not been received to reopen the claim. Accordingly, the petition to reopen is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for sensorineural hearing loss of the right ear. At his October 2019 hearing, the Veteran testified that right ear hearing loss has increased in severity since the Veteran was last examined by VA. The Veteran reported that his hearing loss makes it harder to hear and he has to look at people to better understand what is being said. He endorsed added difficulty at different frequencies and with certain pronunciations. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of right ear hearing loss. 2. Entitlement to rating higher than 10 percent for patellofemoral pain syndrome of the right knee. At his hearing, the Veteran testified that his right knee disability had worsened. He reported problems with locking, swelling due to standing on the job, stiffness, and pain. He noted clicking and indicated that he experienced the same symptoms as before when his meniscus was “going bad.” The Veteran was not currently seeing a physician for knee treatment. At a January 2019 VA examination, the Veteran reported a history of frequent joint effusion but could not remember the last time the joint was drained. Under meniscal conditions, the examination report noted the Veteran had frequent episodes of joint effusion. However, a right knee meniscal condition was not documented. Based on the Veteran’s testimony and the January 2019 VA examination report, a VA examination is needed to determine whether the Veteran has a right knee meniscal condition causing his reported symptoms. 3. Entitlement to service connection for right hip disorder. 4. Entitlement to service connection for left knee disorder. The Veteran believes that his right hip and left knee disorders are due to his service-connected right knee patellofemoral pain syndrome. See Hearing Transcript. He testified that he put all of his weight on his left knee to compensate for his right knee patellofemoral pain syndrome caused the left knee to go out over time with some clicking and popping. Id at 9. The Veteran reported that there was no specific injury to the left knee that he could remember. Id at 10. Additionally, the Veteran indicated that there had been no traumatic event to precipitate the right hip disability – only limping and standing in awkward positions over time. Id. A June 2001 private treatment note reflects that the Veteran twisted his left knee and had experienced popping, giving way, and swelling since. At an April 2015 VA examination, the Veteran reported that right knee pain radiated up to his right hip. The Board cannot make a fully-informed decision on the issues of service connection for right hip and/or left knee disorder because no VA examiner has opined whether right hip and/or left knee disorder is caused and/or aggravated by the Veteran’s right knee patellofemoral pain syndrome. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sensorineural hearing loss of the right ear. 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected patellofemoral pain syndrome of the right 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. Necessary testing should be done to determine whether the Veteran has a right knee meniscal condition. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected patellofemoral pain syndrome of the right knee. The examiner’s attention is drawn to: (a.) The June 13, 2001, treatment note reflecting that the Veteran twisted his left knee about a week before and experienced popping, giving way, and swelling as a result; (b.) The Veteran’s occupation as a bloodhound trainer who runs with the bloodhounds; (c.) Private treatment records and VA examinations. All opinions expressed should be accompanied by supporting rationale. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right hip disorder. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected patellofemoral pain syndrome of the right knee, or (2) aggravated beyond its natural progression by service-connected patellofemoral pain syndrome of the right knee. All opinions expressed should be accompanied by supporting rationale. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.