Citation Nr: 21000558 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-00 071 DATE: January 5, 2021 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for cervical spine arthritis is remanded. Entitlement to service connection for bilateral shoulder arthritis is remanded. Entitlement to service connection for lumbar spine arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed decision, dated April 2016, the AOJ denied the claim of service connection for bilateral hearing loss. 2. Evidence associated with the claims file after the April 2016 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim on appeal. CONCLUSIONS OF LAW 1. The April 2016 rating decision that denied entitlement to service connection for bilateral hearing loss was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 2. New and material evidence has been received since the April 2016 rating decision, thus the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Marine Corps from October 1974 to October 1978. This matter comes before the Board on appeal of rating decisions from April 2018 and January 2019. New and Material Evidence Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and re-adjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may 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). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss At the outset, the April 2016 rating decision, which denied the Veteran’s claim of service connection for bilateral hearing loss was final. The Veteran failed to file a timely notice of disagreement (NOD) after the April 2016 notification letter. Thus, the rating decision became final. At the time of the April 2016 rating decision, the evidence of record consisted of the Veteran’s service treatment records (STRs), military personnel records, a VA audio examination, and VA treatment records. In the April 2016 rating decision, the AOJ explained that there was no evidence that the Veteran suffered from bilateral hearing loss for VA purposes. Specifically, the March 2016 VA examination showed that the Veteran had normal hearing bilaterally, as his puretone thresholds did not meet the criteria of hearing loss under 38 C.F.R. § 3.385. Moreover, there was no evidence that the Veteran had bilateral hearing loss that manifested to a compensable degree within a year of discharge. Thus, the claim was denied. However, since the April 2016 rating decision, evidence has been associated with the record which raises a reasonable possibility of substantiating the claim on appeal. Specifically, VA treatment records from March and August 2018, the Veteran complained of decreased hearing in his left ear with tinnitus. He was diagnosed with left ear otitis externa with probable sensorineural hearing loss. Then, in an August 2018 record, the examiner noted that the Veteran had problems with hearing which was a barrier to learning. Moreover, the Board notes the Veteran was diagnosed and service-connected for bilateral recurrent tinnitus due to in-service noise exposure. The evidence associated with the record after the is “new,” as it was not previously before the AOJ during the April 2016 rating decision. Likewise, the evidence is “material” as it relates to an unestablished fact necessary to substantiate the claim on appeal. Moreover, although there is no definitive evidence that the Veteran’s hearing loss meets the criteria under § 3.385, the Board notes that the language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Accordingly, as the evidence received following the April 2016 rating decision is new and material, the Veteran’s claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). Service connection for bilateral shoulder condition, lumbar spine disability, cervical spine disability, right knee disability, and bilateral hearing loss For the issues on appeal, the Board finds that a remand is necessary. Specifically, the Veteran has been diagnosed with bilateral shoulder arthritis, lumbar and cervical spine arthritis, and right knee arthritis. Moreover, the Veteran reported two instances where he fell from an aircraft during service. He recalled an incident where he attempted to climb into the cockpit of an aircraft but lost his grip and he fell about ten feet to the concrete ground landing on his back and shoulders first, then his buttocks. He reported that he was astonished that he fell in that way, but he laid on the concrete deck for maybe twenty-five minutes before he stood up and limped back to his shop, while holding his back. In another instance, the Veteran recalled falling from the wing of an aircraft due to wet conditions and falling on his knees from about eight feet. The Veteran explained that he bruised both knees and got the wind knocked out of him. He reported that a fellow soldier assisted him back to his vehicle. The Board notes that the Veteran is competent to report on facts or circumstances that he had knowledge of and that could be observed and described by a layperson. See 38 C.F.R. § 3.159 (a)(2). As such, the Veteran’s recollection of falls he suffered during service constitute competent lay evidence. Furthermore, the Veteran’s military occupational specialty (MOS) was as an electronic systems technician and electronic airplane technician. Thus, his reports of falling from aircrafts is consistent with his MOS to maintenance aircraft electronics. Additionally, as discussed above, there is evidence that the Veteran has hearing loss that may meet the criteria for hearing for VA purposes. Moreover, the Veteran was exposed to excessive noise exposure as an aircraft electronics technician. Importantly, as delineated in 38 C.F.R. § 3.159 (c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, a remand is necessary to determine the nature and etiology of the disabilities on appeal. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral shoulder arthritis, lumbar spine arthritis, cervical spine arthritis, right knee arthritis and bilateral hearing loss, if diagnosed. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral shoulder arthritis had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder arthritis manifested to a compensable degree within one year of service separation. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s lumbar spine arthritis had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine arthritis manifested to a compensable degree within one year of service separation. (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s cervical spine arthritis had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (f.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine arthritis manifested to a compensable degree within one year of service separation. (g.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee arthritis had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (h.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee arthritis manifested to a compensable degree within one year of service separation. (i.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (j.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss, if diagnosed, manifested to a compensable degree within one year of service separation. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. (Continued on the next page)   3. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given, with particular emphasis on the Veteran’s reports of falling while trying to perform aircraft maintenance. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.