Citation Nr: 20007841 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 11-26 414 DATE: January 30, 2020 ORDER As new and material evidence has been received, the claims for service connection for cervical spine and left knee arthritis are reopened. To this extent only, the appeals are granted. REMANDED The appeals for service connection for cervical spine, right and left knee, right and left hand, back, right and left foot arthritis, COPD, asthma, and bilateral hearing loss disability are remanded. FINDINGS OF FACT 1. The RO last denied service connection for cervical spine arthritis in November 2002. The Veteran did not perfect an appeal of that decision after the statement of the case was issued in January 2006, nor was new and material evidence received prior to the expiration of the appeal period. 2. Since the final November 2002 decision denying service connection for cervical spine arthritis, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 3. The RO last denied service connection for left knee arthritis in May 2006. The Veteran did not perfect an appeal of that decision after the statement of the case was issued in March 2007, nor was new and material evidence received prior to the expiration of the appeal period. 4. Since the final May 2006 decision denying service connection for left knee arthritis, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. CONCLUSIONS OF LAW 1. The November 2002 RO decision denying service connection for cervical spine arthritis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim for service connection for cervical spine arthritis based on new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The May 2006 RO decision denying service connection for left knee arthritis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria to reopen the claim for service connection for left knee arthritis based on new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969, with service in the Republic of Vietnam from May 1968 to January 1969. He was awarded the Combat Infantryman’s Badge, the Purple Heart, and the Soldier’s Medal for risking his life to save the life of one soldier who was drowning and attempting to save another drowning soldier’s life. The Board thanks him for his honorable, courageous, and heroic service to our country. Prior unappealed RO rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. Applicable 38 C.F.R. § 3.156 provides that 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. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). The RO last denied service connection for cervical spine arthritis in November 2002 and notified the Veteran of its decision and of his right to appeal it within 1 year at the time. An appeal was not perfected after the statement of the case was issued in January 2006, and no new and material evidence was received prior to the expiration of the appeal period. Accordingly, the RO decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The basis of the decision is that service treatment records showed a sore neck with a headache and mild cough, but not a chronic neck condition. There was no evidence of a neck condition until years post-service, and no indication of it being related to service. To the contrary, evidence indicated that the Veteran had a cervical laminectomy in 1995 due to an on the job injury to his neck in 1993. The RO also last denied service connection for left knee arthritis in May 2006 and notified the Veteran of its decision and of his right to appeal it within 1 year at the time. An appeal was not perfected on this issue after the statement of the case was issued in March 2007, and no new and material evidence was received prior to the expiration of the appeal period. Accordingly, the RO decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The basis of the decision is that service treatment records did not show complaints, findings, or treatment for a left knee condition. VA treatment records from August 2004 indicated that the Veteran related that his knees had been giving out. During 2003, he had his first episode, with his right knee giving out. He reported that his left knee began to give out about 1 ½ months prior to the examination. He denied any injuries and was not sure why his knees were giving out. August 2004 VA treatment records showed that the Veteran reported that 25 years ago, he had cut his left leg above the knee with a chain saw, and had it stitched up. X-rays then and in 2004 showed a needle in his left knee. The RO concluded that the evidence did not show that the Veteran’s left knee condition is related to his service. Since the last final decisions, new and material evidence has been received for both of the claims. See Shade, supra. The Veteran is service-connected for diabetes mellitus type II and in March 2016, he submitted medical literature which states that diabetes and arthritis have plenty in common and that diabetes causes musculoskeletal changes that lead to symptoms such as joint pain, stiffness, and swelling; and that after having diabetes for several years, joint damage called diabetic arthropathy can occur. Accordingly, the claims are reopened. Action is being ordered on these and the other issues in the remand section below. REASONS FOR REMAND The Veteran is service-connected for diabetes mellitus and appeals for service connection for cervical spine, right and left knee, right and left hand, back, and right and left foot arthritis, and for service connection for COPD and asthma. In October 2016, the Veteran submitted an article indicating that diabetes and arthritis have plenty in common. It states that diabetes causes musculoskeletal changes that lead to symptoms such as joint pain, stiffness, and swelling; and that after having diabetes for several years, joint pain called diabetic arthropathy can occur. He also submitted a report of a study which found that the incidence of asthma and COPD is greater with those with a diagnosis of diabetes than in those without diabetes. This literature is sufficient to trigger VA’s duty to assist him with his claims by providing him with VA examinations for them as indicated below. As the appeals are being remanded, on remand, any additional relevant medical records should be obtained. Next, the Board remanded the matter of service connection for bilateral hearing loss disability to the AOJ in February 2018. The remand orders included having a VA examiner render an addendum medical opinion on the matter of whether the Veteran's hearing loss is caused or aggravated by his service connected diabetes mellitus, because the Veteran had submitted an article in September 2017 from angieslist.com entitled How Diabetes and Hearing Loss Are Connected, discussing NIH research; a page from cheatsheet.com entitled Truly Dreadful Things That Diabetes Does to Your Body that cites to a 2013 article in the Journal of Clinic Endocrinology and Metabolism that found that diabetics have a higher incidence of hearing impairment than non-diabetics, and a 2009 article in Otology and Neurotology that found that cardiovascular risk generated by smoking and diabetes was associated with both high- and low-frequency hearing loss. It is unclear why, but for some reason, perhaps accidentally, this issue has been placed back on the Board's docket without the action ordered on remand being completed. The Board is not implying that there was any error on the AOJs part in creating this problem. The Board is remanding this issue again in order to ensure that the action ordered in February 2018 is completed as ordered at that time. The matters are REMANDED for the following action: 1. Make arrangements to obtain any additional relevant medical records, including all VA medical records of relevant treatment the Veteran has received which are not of record. 2. After completion of the action in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any current arthritis of his cervical spine, back, hands, knees, and feet. All testing deemed necessary by the examiner should be performed and the results reported in detail. The virtual file must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current cervical spine, back, hand, knee, or foot arthritis disorder is related to service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any currently cervical spine, back, hand, knee, or foot arthritis disorder is caused by the Veteran's service-connected diabetes mellitus disability? (c) Is it at least as likely as not that any currently diagnosed cervical spine, back, hand, knee, or foot arthritis disorder is aggravated by the Veteran’s service-connected diabetes mellitus disability? If aggravation is found, the examiner should quantify the degree of aggravation, if possible. The examiner should answer questions (a), (b), and (c) separately, to help ensure that each is fully, clearly, and adequately answered, and should furnish detailed reasons for each opinion, specifically discussing the relevant evidence and medical principles, to the extent appropriate. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the action in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his current COPD and asthma. All testing deemed necessary by the examiner should be performed and the results reported in detail. The virtual file must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed COPD and asthma is related to service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed COPD and asthma is caused by the Veteran's service-connected diabetes mellitus disability? (c) Is it at least as likely as not that any currently diagnosed COPD and asthma is aggravated by the Veteran’s service-connected diabetes mellitus disability? If aggravation is found, the examiner should quantify the degree of aggravation, if possible. The examiner should answer questions (a), (b), and (c) separately, to help ensure that each is fully, clearly, and adequately answered, and should furnish detailed reasons for each opinion, specifically discussing the relevant evidence and medical principles, to the extent appropriate. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Arrange for an addendum VA medical opinion to be obtained from the VA examiner who provided the July 2017 opinion as to the etiology of the Veteran’s hearing loss, or if that examiner is unavailable, from another suitably qualified examiner. The examiner should review the additional evidence provided by the Veteran, including the articles submitted in September 2017, and opine whether it is at least as likely as not that the Veteran’s hearing loss is (a) caused or (b) aggravated by his service-connected diabetes mellitus. The examiner should note review of and specifically address the medical articles submitted by the Veteran in offering CONTINUED ON NEXT PAGE  a rationale for her opinion. A new examination is not required unless the VA examiner feels one is necessary. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson, 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.