Citation Nr: 20021819 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-20 745 DATE: March 27, 2020 ORDER New and material evidence having been received, the previously denied service connection claim for left ear hearing loss is reopened. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent for chronic low back strain with degenerative changes is remanded. Entitlement to a rating in excess of 10 percent for status post patellar fracture with degenerative arthritis, right knee, is remanded. Entitlement to a compensable rating for hypertension is remanded. Entitlement to a compensable rating for right ear hearing loss is remanded. FINDINGS OF FACT 1. An unappealed January 1998 rating decision denied service connection including for left ear hearing loss. 2. Evidence added to the record since the January 1998 rating decision raises a reasonable possibility of substantiating the previously denied service connection claim. CONCLUSIONS OF LAW 1. A January 1998 rating decision denying entitlement to service connection for left ear hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. New and material evidence was received and the service connection claim for left ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1977 to April 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision on behalf of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2019, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. A July 2019 rating decision established a temporary 100 percent rating for the Veteran’s service-connected right knee disability effective from April 16, 2019, with a 30 percent rating to be assigned effective June 1, 2020. The rating decision also established 10 percent ratings for right and left lower extremity radiculopathy effective March 26, 2019. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen a previously denied service connection claim for left ear hearing loss is reopened. A January 1998 rating decision denied service connection for bilateral hearing loss. The RO determined, in pertinent part, that left ear hearing loss for VA compensation purposes was not shown. The Veteran did not appeal the decision and new and material evidence was not added to the record within one year of the determination. Accordingly, the rating decision as to the matter became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence added to the record since the January 1998 rating decision includes the Veteran’s statements and testimony asserting that his hearing impairment had increased in severity. Treatment records were also obtained noting complaints of decreased hearing acuity and noting audiology studies had been completed. This evidence raises a reasonable possibility of substantiating the claim. The previously denied service connection claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. 2. Entitlement to service connection for type II diabetes mellitus is remanded. 3. Entitlement to service connection for GERD is remanded. 4. Entitlement to a rating in excess of 10 percent for chronic low back strain with degenerative changes is remanded. 5. Entitlement to a rating in excess of 10 percent for status post patellar fracture with degenerative arthritis, right knee, is remanded. 6. Entitlement to a compensable rating for hypertension is remanded. 7. Entitlement to a compensable rating for right ear hearing loss is remanded. At his March 2019 hearing, the Veteran testified that his hearing loss had worsened since he was last examined. He expressed the belief that a compensable rating was warranted for his hearing loss. He stated that he was also experiencing flare-ups of hypertension. These statements are sufficient to warrant new examinations. The Veteran also maintained that he received testing for diabetes mellitus in service, and that he was told he had the disease. He added that he had symptoms related to GERD in service for which he was provided Zantac which he had used continuously since his retirement from active service. The diabetes mellitus and GERD claims have not been addressed by VA examination. Service department medical facility reports, including dated in May 2015, indicate that audiograms had been completed. The findings of such studies, however, were not included in the records provided. Reference is also made to private treatment reports noting the Veteran underwent a right total knee arthroplasty in April 2019 and VA examination reports dated in June 2019 and July 2019 indicating an increase in low back disability symptoms. Such is suggestive of a change of symptomatology. The matters are REMANDED for the following action: 1. Appropriate action should be taken to obtain copies of pertinent audiogram reports maintained by the 412th MED GRP–EDWARDS. The Veteran should be asked to complete a VA Form 21-4142, if necessary. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diabetes mellitus disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as demonstrated by testing conducted during active service. The findings of any in-service testing should be discussed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any GERD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including consideration of the Veteran’s reports of having used Zantac continuously since active service. 4. Schedule the Veteran for an audiological examination. After reviewing the claims file and examining the Veteran, the examiner should address the following: a. State whether left ear hearing loss for VA purposes is present or has been present at any time during the appeal period. b. If left ear hearing loss for VA purposes is shown, state whether it is as likely as not that the disability is related to the Veteran’s active service, to include in-service noise exposure. c. Determine the current severity of the Veteran’s service-connected right ear hearing loss or, if warranted, bilateral hearing loss. The examiner should provide a full description of the service-connected disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must provide rationale. The examiner is also asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. 6. Schedule the Veteran for an examination, as soon as medically feasible, by an appropriate clinician to determine the current severity of his service-connected right knee disability. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must provide rationale. The examiner is also asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.