Citation Nr: 21065104 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-01 455 DATE: October 25, 2021 ORDER 1. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for irritable bowel syndrome (IBS) is granted. 2. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for a right knee disability is granted. 3. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for right ear hearing loss is granted. REMANDED 1. Entitlement to service connection for IBS is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for right ear hearing loss is remanded. 4. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The final February 1986 rating decision denied the Veteran's claims for service connection for colitis (IBS), a right knee disability, and right ear hearing loss; although notified of the decision, the Veteran did not express an intent to appeal the decision, and new and material evidence was not added within one year of this decision. 2. With respect to the claims for service connection for IBS, a right knee disability and right ear hearing loss, the additional evidence associated with the claims file since the February 1986 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial, and indicates a potential nexus with service. CONCLUSIONS OF LAW 1. The February 1986 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2020). 2. As evidence received since the February 1986 rating decision is new and material with respect to the IBS claim, the criteria for reopening the Veteran's claim for service connection for IBS are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 3. As evidence received since the February 1986 rating decision is new and material with respect to the right knee disability claim, the criteria for reopening the Veteran's claim for service connection for right knee disability are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 4. As evidence received since the February 1986 rating decision is new and material with respect to the right ear hearing loss claim, the criteria for reopening the Veteran's claim for service connection for right ear hearing loss are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to August 1985. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. NEW AND MATERIAL EVIDENCE Rating actions are final, and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for IBS is granted. The Veteran's claim for service connection for colitis was denied in February 1986 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran had a diagnosis of colitis that was related to his military service. At the time of the February 1986 rating decision, the evidence of record included service treatment records and a January 1986 VA examination report. The Veteran was notified of the decision and his appellate rights in February 1986. However, he did not file a notice of disagreement in response to that rating decision. In November 2016, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the February 1986 rating decision includes the May 2021 Board hearing testimony, a lay statement from the Veteran's wife, and post-service VA treatment records. As indicated above, the evidence of record in February 1986 included the Veteran's service treatment records and the report of an examination for VA purposes. The service records showed complaints of frequent bowel movements were investigated in 1983, but they did not reveal a diagnosis of any chronic problem. The report of the examination conducted at discharge revealed no relevant abnormalities on clinical evaluation and the Veteran reported none. The January 1986 VA examination documented the Veteran's report of symptoms, but revealed no diagnosis. The evidence added to the record since that decision includes the Veteran's hearing testimony and a statement from his wife of more than 30 years. They report the Veteran's frequent, sudden urge to move his bowels continued since service, and while a formal diagnosis to account for these symptoms does not appear in the record, it is observed the Veteran was prescribed Omeprazole, a gastrointestinal medication. This strongly implies the presence of a disability. Given evidence that is at least suggestive of a current disability, and on-going relevant complaints, which was not present at the time of the prior final decision, the Board finds that new and material evidence has been presented, and the claim is reopened. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for a right knee disability is granted. As with the claim for IBS, the Veteran's claims for service connection for a right knee disability was denied in a February 1986 rating decision. The RO determined right knee injury residual was not identified. At the time of the February 1986 rating decision, the evidence of record included service treatment records and the January 1986 VA examination report. The Veteran was notified of the decision and his appellate rights in February 1986. However, he did not file a notice of disagreement in response to that rating decision. In November 2016, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Since February 1986, the Veteran has provided testimony regarding a fall during active duty which injured his right knee. This is sufficient to suggest an in-service injury to which current disability could relate. Furthermore, the Veteran has since been diagnosed to have degenerative joint disease of the right knee, which was not present at the time of the prior rating decision. Accordingly, the Board finds the evidence new and material and the right knee disability service connection claim is reopened. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for right ear hearing loss is granted. The Veteran's claims for service connection right ear hearing loss were denied in the February 1986 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran's pre-existing right ear hearing loss had been aggravated by service. At the time of the February 1986 rating decision, the evidence of record included service treatment records and the January 1986 VA examination report. The Veteran was notified of the decision and his appellate rights in February 1986. However, he did not file a notice of disagreement in response to that rating decision. In November 2016, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Since February 1986, the Veteran has provided testimony regarding his exposure to hazardous noise during service. His testimony also implied his hearing acuity in both ears diminished in service. Given the low threshold for reopening, the Board concludes this evidence of a worsening of the disability in service, is new and material. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran was afforded a VA examination in March 2019. The examiner noted that he had a current diagnosis of degenerative joint disease of the right knee, as well as a congenital condition of the patella, bipartite patella. The congenital condition also was seen on an X-ray taken at the VA examination in 1986. The opinion included with the report, however, appears to have had as its focus, confirmation that the 1986 X-ray revealed the congenital condition rather than a fracture. The opinion did not clearly explain whether the symptoms noted in service in 1982, or the injury the Veteran reported at his hearing in 2021, could be related to the Veteran's current knee degenerative joint disease. An opinion should be obtained to address whether current disability may be related to service. 2. Entitlement to service connection for IBS is remanded. Given the Veteran's report of long standing issues concerning urgent bowel movements, and complaints of frequent bowel movements in service, he should be afforded a VA examination to identify any current gastrointestinal disorder, including IBS, he may have, and whether it had its onset during service. 3. Entitlement to service connection for right and left ear hearing loss is remanded. The Veteran's right ear hearing loss was noted to have pre-existed service, and he contends it was aggravated by noise exposure during his military service. The Veteran suggested it worsened during service. The report of a January 2017 VA hearing loss examination implied that if the results of testing at that time had been valid, an opinion may have been possible to address whether right ear hearing loss was aggravated by service. Similarly, the January 2017 examiner indicated an opinion concerning the left ear could not be provided due to the invalid results of that examination. However, the fundamental basis for the invalid results at that time was not made clear. Also, it is not clear if the examiner anticipated all future testing would yield similarly invalid results. Therefore, further evaluation should be sought as detailed below. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Send the Veteran's claims file to an appropriate examiner to provide an addendum opinion regarding whether it is at least as likely as not right knee degenerative joint disease had its onset in service, to include whether it is related to the right knee complaints noted in 1982, or an earlier undocumented injury as the Veteran described at his 2021 hearing, where he fell. The Veteran may be recalled for examination if deemed necessary. All opinions provided should be supported by a rationale. 3. Schedule the Veteran for an appropriate VA audiological examination. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner should provide opinions as to the following: (A) whether the Veteran's right ear hearing loss was aggravated by service, (increased in severity beyond its natural progression); and, (B) whether any left ear hearing loss was due to an in-service injury. All opinions provided must be supported by a rationale. If any test results are deemed to be invalid, the reasons for that should be explained in layman's terms. 4. Schedule the Veteran for an examination of his gastrointestinal complaints (IBS). Any necessary testing should be accomplished. The examiner is asked to identify the gastrointestinal disabilities present, and should particularly address the Veteran's reports of chronic sudden urges to have a bowel movement. For any disability found, the examiner is asked to provide an opinion as to whether it had its onset in service. All opinions provided should be supported by a rationale. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.