Citation Nr: 21064156 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-08 880 DATE: October 19, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. New and material evidence having been received, the claim of entitlement to service connection for a left knee disorder is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. VA last denied the Veteran's claim for service connection for bilateral hearing loss in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. 2. Evidence received since the final April 2012 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss. 3. VA last denied the Veteran's claim for service connection for tinnitus in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. 4. Evidence received since the final April 2012 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 5. VA last denied the Veteran's claim for service connection for a left knee disorder in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. 6. Evidence received since the final April 2012 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for a left knee disorder. CONCLUSIONS OF LAW 1. The April 2012 rating decision denying the claim for service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria to reopen the claim for service connection for bilateral hearing loss based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The April 2012 rating decision denying the claim for service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 4. The criteria to reopen the claim for service connection for tinnitus based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The April 2012 rating decision denying the claim for service connection for a left knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 6. The criteria to reopen the claim for service connection for a left knee disorder based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1987 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in July 2021. A transcript of this hearing is in the claims file. Issue 1: Whether VA has received new and material evidence to reopen a claim of service connection for bilateral hearing loss Issue 2: Whether VA has received new and material evidence to reopen a claim of service connection for tinnitus Issue 3: Whether VA has received new and material evidence to reopen a claim of service connection for a left knee disorder New and Material Evidence General 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). Also, the general rule is that judicial interpretations of statutes apply retroactively to cases that are "open for direct review" but not to those that have become final and are being challenged on collateral review via CUE motions. George v. Wilkie, 30 Vet. App. 364, 376 (2019). See also Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). Merits Bilateral Hearing Loss The AOJ last denied the Veteran's claim for service connection for a bilateral knee disorder in April 2012, finding the Veteran did not have a diagnosis of bilateral hearing loss, nor was there evidence his hearing loss was incurred in or caused by service; the Veteran received notification of this decision in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. Therefore, the April 2012 rating decision became final. At the time of the AOJ's April 2012 denial, the record consisted, as relevant here, of service treatment records. Subsequently, the Veteran testified before the undersigned in July 2021, and he contemporaneously submitted medical journal articles discussing delayed onset hearing loss. The Veteran was also examined by VA in May 2016, during which the examiner noted the Veteran had bilateral sensorineural hearing loss. The VA examination, testimony and medical journal articles are new. They are also material because they help substantiate the claim, and they relate to a reason VA previously denied his claim. Reopening of the Veteran's the 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"). Merits Tinnitus The AOJ last denied the Veteran's claim for service connection for tinnitus in April 2012 as he did not have a diagnosis of tinnitus, nor was there evidence tinnitus was incurred in or caused by service; the Veteran received notification of this decision in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. Therefore, the April 2012 rating decision became final. At the time of the AOJ's April 2012 denial, the record consisted, as relevant here, of service treatment records. Subsequently, the Veteran testified before the undersigned in July 2021, and he contemporaneously submitted medical journal articles discussing delayed onset hearing loss, which is intertwined with the tinnitus claim. The Veteran was also examined by VA in May 2016, during which the examiner noted the Veteran had a current diagnosis of tinnitus. The VA examination, testimony and medical journal articles are new. They are also material because they help substantiate the claim, and they relate to a reason VA previously denied his claim. Reopening of the Veteran's the claim for service connection for tinnitus 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"). Merits Left Knee Disorder The AOJ last denied the Veteran's claim for service connection for a left knee disorder in April 2012 as the Veteran did not have a current diagnosis and there was no evidence that his left knee condition was aggravated during service; the Veteran received notification of this decision in April 2012. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. Therefore, the April 2012 rating decision became final. At the time of the AOJ's April 2012 denial, the record consisted, as relevant here, of service treatment records. Subsequently, the Veteran testified before the undersigned in July 2021, and he submitted private treatment records in March 2017 detailing his pre-induction knee surgeries. The testimony and private treatment records are new. They are also material because they help substantiate the claim, and they relate to a reason VA previously denied his claim. Reopening of the Veteran's the claim for service connection for a left knee disorder 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 Hearing Loss and Tinnitus VA examined the Veteran for his hearing loss and tinnitus claims in May 2016. The examiner found the Veteran's hearing loss was less likely than not related to service because: Veteran's hearing thresholds at time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise induced hearing loss will not progress once it is stopped.' The examiner also found the Veteran's tinnitus was less likely than not related to service because: There is a lack of evidence in the C-File of any complaints of tinnitus or hearing loss during service and the time between service and the date of this evaluation is significant without evidence of any audiology treatment in the intervening years. The Veteran, in response to these opinions, testified before the undersigned in July 2021. He testified that he worked on a flight line with "air crew survival equipment" while in the Navy, that the Navy denied him the use of hearing protection, and that his symptoms of hearing loss and tinnitus began in the Navy. Additionally, he submitted two medical journal articles that discuss delayed onset hearing loss "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth" and "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss." Based on the testimony and the submission, the Board finds a new VA examination is warranted. Left Knee Disorder For the Veteran's understanding, VA must analyze his claim under an aggravation framework. That is, if, as here, a preexisting disorder is not "noted" as a defect at service entrance, 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 apply. Under this statute and regulation, the burden is on VA, by clear and unmistakable evidence, to show both a) the disorder preexisted service, and b) the preexisting disorder was not aggravated in or during service. If VA fails on either prong, the case converts back to one of direct service incurrence, i.e., VA will conduct a direct service connection analysis as if there was no preexisting disorder of any kind. A timeline to explain the events involved in this issue is helpful: November 22, 1986 The Veteran was examined for entrance into the military at a military entrance processing station (MEPS). March 2, 1987 The Veteran has his first surgery on his left knee. April 27, 1987 The Veteran has his second surgery on his left knee. July 17, 1987 The MEPS which examined the Veteran on November 22, 1986 refers the Veteran to a private physician "for evaluation regarding his suitability to perform vigorous physical activity such as required in the military service based on a history of having a previous injury to his left knee." The physician files a "Consultation Report" documenting his findings. July 23, 1987 The Veteran enters military service. October 1987 The Veteran complains of left knee pain. November 1987 A service treatment record states the Veteran injured his left knee while moving a couch February 8, 1988 A Naval Medical Board finds the left knee disorder preexisted service and was not aggravated by service. The Veteran does not challenge this finding. March 1988 The Veteran separates from military service. The Board notes that the July 17, 1987 "Consultation Report" is incomplete. Specifically, the private physician's opinion on the Veteran's suitability for military service is not included in the Veteran's service treatment records. However, the undersigned presumes that the opinion was positive because the Veteran entered service six days after the "Consultation Report." For this reason, the Board finds that the Veteran's left knee disorder was not "noted" as a defect for purposes of service entrance and service connection analysis. In this regard, the medical professional who examined the Veteran in August 2017 for this claim used the proper analytical framework to opine on the claim. That is, the examiner evaluated whether the Veteran's left knee disorder clearly and unmistakably existed prior to service entrance and whether it was clearly and unmistakably not aggravated beyond its normal progression by an in-service event, injury, or illness. The examiner opined that both prongs were met, stating: This veteran had a serious orthopedic problem prior to enlisting in the service. He should not have been allowed in the service due to his orthopedic L knee condition. His ability to function in a position requiring standing or walking most of his work shift since separation 29 years ago implies that his condition was not aggravated by his military service. Although the examiner answered the relevant questions, the Board finds the comment regarding the eligibility of the Veteran for service was beyond the scope of the examination and suggests possible bias. Whether the Veteran should have been allowed to serve was irrelevant as the Veteran was, in fact, admitted to serve on active duty. Therefore, the Board will remand for a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA hearing loss and tinnitus examination to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. The examiner, after reviewing the claims file, to include this Remand, should conduct the customary examination and opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's bilateral hearing loss began during, or was otherwise caused by, military service? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran's tinnitus began during, or was otherwise caused by, military service? Why or why not? In answering these questions, the examiner MUST expressly address: i) The relevance, if any, of the two medical journal articles the Veteran submitted in July 2021 discussing delayed onset hearing loss. These articles appear in the claims file and are entitled "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth" and "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss." ii) The Veteran's testimony in July 2021 that he worked on a flight line with "air crew survival equipment" while in the Navy, that the Navy denied him the use of hearing protection, and that his symptoms of hearing loss and tinnitus began in the Navy. A complete rationale should be provided for all opinions rendered. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left knee disorder. The examiner, after reviewing the claims file, to include this Remand, should conduct the customary examination and opine: a) Is it medically undebatable that the Veteran's left knee disorder preexisted his entry into active military service? If yes, please state why and identify the clear and unmistakable evidence? If no, why not? b) If you find it is medically undebatable that the Veteran's left knee disorder preexisted his entry into active military service, is it also medically undebatable that the Veteran's left knee disorder was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? If yes, why? If no, why not? c) If the answer to questions (a) or (b) is no, is it at least as likely as not (50 percent probability) that Veteran's left knee disorder began during, or was otherwise caused by, military service? Why or why not? In answering questions (a) and (b), the examiner is advised that the evidentiary standard for whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." A complete rationale should be provided for all opinions rendered. 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.