Citation Nr: 21003725 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-12 706 DATE: January 22, 2021 ORDER VA has received new and material evidence to reopen a claim of service connection for bilateral hearing loss. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating greater than 10 percent for gastroesophageal reflux disease (GERD) prior to March 9, 2016 is remanded. Entitlement to a rating greater than 30 percent for GERD from March 9, 2016 is remanded. Entitlement to a rating greater than 10 percent for "limited flexion, left knee," as rated under Diagnostic Code 5260, is remanded. Entitlement to a rating greater than 10 percent for "patellofemoral syndrome, with limited flexion, left knee to include osteoarthritis (previously rated as patellofemoral syndrome, with limited extension, left knee; also claimed as arthritis)," as rated under Diagnostic Code 5003-5260, is remanded. REFERRED The Veteran claimed service connection for bilateral hearing loss in June 2016. The AOJ denied the bilateral hearing loss claim because it found the Veteran had not submitted new and material evidence. The Veteran appealed the denial in September 2017, phrasing his appeal as one of an "auditory condition to include bilateral hearing loss and tinnitus." In April 2019, the AOJ recognized the new claim of tinnitus contained in the September 2017 Notice of Disagreement, and it ordered development. The Board does not have jurisdiction over the tinnitus claim. Therefore, the Board refers it to the AOJ for adjudication, and the Veteran’s appeal will be limited to the issue of bilateral hearing loss. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for bilateral hearing loss in an October 2004 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the October 2004 rating decision became final. 2. The Veteran filed a claim for service connection for bilateral hearing loss in June 2016. He did not submit new and material evidence with this claim, and the AOJ denied the claim in a September 2016 rating decision. 3. The Veteran appealed the AOJ’s denial in September 2017, and he submitted medical evidence in March 2018. This evidence is both new and material. CONCLUSIONS OF LAW 1. The October 2004 rating decision denying the claim for service connection for bilateral hearing loss is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since the October 2004 rating decision has been submitted to allow the reopening of the claim for service connection for bilateral hearing loss. 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 May 1984 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of an AOJ of the Department of Veterans Affairs (VA). As shown in the Veteran's July 2020 Rating Decision Codesheet, the most recent in the claims file, the Veteran has two service-connected left knee disabilities. They are 1) "limited flexion, left knee," rated 10 percent disabling under Diagnostic Code 5260 with an effective date of service connection from December 16, 2013, and 2) "patellofemoral syndrome, with limited flexion, left knee to include osteoarthritis (previously rated as patellofemoral syndrome, with limited extension, left knee; also claimed as arthritis)," as rated under Diagnostic Code 5003-5260, rated 10 percent disabling with an effective date of service connection for March 9, 2016. As such, the Veteran had two service-connected left knee disabilities when he claimed an increased rating for his left knee in June 2016. The September 2016 rating decision on appeal only addressed the second disability. However, given the similar wording of "limited flexion" in both disabilities, the Board finds the appeal encompasses both disabilities. As such, it has included the first disability among the issues on the title page. Issue: Whether VA has received new and material evidence to reopen a claim of service connection for bilateral hearing loss New and Material Evidence – Background Law Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Merits The AOJ denied the Veteran’s claim for service connection for bilateral hearing loss in an October 2004 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Accordingly, the October 2004 rating decision became final. At the time of the October 2004 rating decision, the record consisted, most notably, of service treatment records. The AOJ denied the claim because "the evidence of record does not show audiometric findings which meet the criteria for a grant of service connection for defective hearing." While the AOJ expressly denied the claim because the Veteran did not meet the current disability of the three-prong test of service connection, it implicitly denied findings of the other two prongs, in-service incurrence and nexus. The Veteran filed a claim for service connection for bilateral hearing loss in June 2016. He did not submit new and material evidence with this claim, and the AOJ denied the claim in a September 2016 rating decision. The Veteran appealed the AOJ’s denial in September 2017. As the appeal was pending, he submitted a February 2018 private medical nexus statement for an "auditory condition to include bilateral tinnitus" in March 2018. This statement discusses his military occupational specialty and the examiner's opinion that "acoustic trauma should be conceded." The Veteran also submitted a VA Form 21-4138 in March 2018 in which he states he performed two tours in the combat communications unit and was exposed to loud noises from generators, deuce and a half trucks, and 5-ton trucks as well as constant noise exposure from the computers, routers, servers, switches, etc., in the facilities in which he worked. The Board, for purposes of determining whether evidence is new and material, must presume the statement is credible. Justus v. Principi, 3 Vet. App. 510 (1992). With this framework, the Board finds that the private medical nexus statement and the Veteran’s statement relates to the unestablished fact of, but does not prove, in-service incurrence. However, at this stage, this is sufficient to meet the new and material evidence threshold for the in-service incurrence requirement. To be clear, the private medical nexus statement is new. It is also material because it helps substantiate the Veteran's claim, and it relates to a reason the AOJ previously denied the claim. Reopening of the Appellant's claim for service connection for bilateral hearing loss based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND Remand is warranted for three reasons. First, the Veteran's June 2016 claim cites medical treatment at MacDill AFB from "February 4, 2016 – present." The Veteran submitted treatment records dated February 4, 2016 and March 24, 2016 from MacDill with his claim that pertain to his left knee and GERD. The records suggest that they were not isolated incidents of treatment. As such, the AOJ should have requested all treatment records from MacDill to ensure the evidentiary record was complete. It did not, so remand is required to attempt to obtain these records. Second, VA examined the Veteran in July 2016 for multiple disabilities including his left knee and GERD. In March 2018, the Veteran described GERD symptoms to include "a shooting pain in my chest and left arm when I'm having extreme heartburn that makes me wonder if I'm having a heart attack" and left knee symptoms to include pain that "has progressively increased since service." Construing these statements in the light most favorable to the Veteran, the Board finds the Veteran contends his symptoms worsened since his 2016 examinations. Therefore, it will order new examinations to determine the nature and severity of his disabilities before it decides his appeal. Third, because the Veteran has submitted new and material evidence with his bilateral hearing loss claim, to include a March 2018 statement about ringing in his ears, the Board finds that a VA examination is warranted before it decides his appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Attempt to obtain all records from MacDill AFB from June 2015 (one year prior to his increased rating claims for his left knee and GERD) to present. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his GERD. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his left knee disorders. In addition to the normal examination, the examiner is asked to explain the difference between the Veteran's two left knee disabilities - 1) "limited flexion, left knee," rated 10 percent disabling under Diagnostic Code 5260 with an effective date of service connection for December 16, 2013, and 2) "patellofemoral syndrome, with limited flexion, left knee to include osteoarthritis (previously rated as patellofemoral syndrome, with limited extension, left knee; also claimed as arthritis)." Please explain a) what they are, b) how they relate to each other, and c) how they differ. 4. Schedule the Veteran for a VA compensation examination to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. The examiner must answer the following question: a) Is it as least as likely as not (50 percent probability) that the Veteran's claimed bilateral hearing loss began during, or was otherwise caused by, service? Why or why not? Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.