Citation Nr: 21069605 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-10 408 DATE: November 19, 2021 ORDER Service connection for bilateral hearing loss is denied. New and material evidence has been received to reopen the claim of service connection for a right ankle disorder and the appeal is granted to this extent. REMANDED Service connection for a cervical spine disorder. Service connection for a lumbar spine disorder. Service connection for headaches. Service connection for a right ankle disorder. FINDINGS OF FACT 1. The Veteran served on active duty from November 1990 to July 1994; he has been 100 percent disabled since February 2021, plus in receipt of special monthly compensation. 2. A diagnosis of bilateral hearing loss for VA purposes has not been shown. 3. The claim for a right ankle disorder was denied in November 2009; evidence received since the November 2009 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). 2. The November 2009 rating decision that denied service connection for a right ankle disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 3. New and material evidence has been received to reopen the claim of service connection for a right ankle disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2021. A copy of the transcript has been associated with the record. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. 38 C.F.R. § 3.385. First, the Veteran has not been diagnosed with bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. Specifically, a January 2014 VA examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 30 LEFT 20 25 20 25 30 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. VA and private treatment records were also reviewed. While there were sporadic complaints, the Veteran routinely denied any issues hearing. Additionally, VA treatment records from August 2015 and February 2016 revealed no evidence of hearing loss with whisper and finger tests. The Board has considered the Veteran's testimony that the VA examination was insufficient. Importantly, he did not attest that his hearing had worsened since that time or identify any deficiencies in the examination which would merit another VA examination. This is especially relevant when considered in conjunction with the VA treatment records which also failed to reveal any worsening symptoms or diagnosed hearing loss. Therefore, the medical evidence does not support the appeal. The Board has considered the Veteran's lay statements that bilateral hearing loss was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of the current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal for service connection for bilateral hearing loss is denied. Application to Reopen Claim of Service Connection for a Right Ankle Disorder Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means "evidence not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, the AOJ denied the claim of entitlement to service connection for a right ankle disorder in November 2009 for a lack of an in-service injury or incurrence. The Veteran did not appeal, and new and material evidence was not received within one year of the decision. Therefore, the decision became final. Evidence received since the November 2009 rating decision included additional treatment records revealing a chronic ankle disorder and the Veteran's July 2021 Board testimony. Specifically, he testified that while he did not have an in-service incurrence, the right ankle disorder was caused or aggravated by the service-connected bilateral knee disabilities. This evidence is considered new as it was not previously considered and it is material since it goes to an essential element of service connection, going to the issue of establishing a connection to service. Thus, the claim is reopened. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With regard to the Veteran's claims of service connection for lumbar and cervical spine disorders, addendum opinions are required. Specifically, the evidence shows diagnoses of osteoarthritis in the entire spine. Next, he has asserted that the disorders are caused or aggravated beyond their natural progression by the service-connected bilateral knee disabilities. To support the claim, he submitted a September 2017 opinion from his private physician which suggested that the degenerative changes in the knees caused significant ongoing spinal pain due to a direct correlation in the kinetic chain. While he was afforded VA examinations in December 2019, the examiner failed to provide any rationale for the opinion regarding aggravation. The examiner also failed to consider address the September 2017 private opinion. Finally, even though the Veteran's service treatment records (STRs) revealed complaints of low back pain in September 1993, the examiner noted that there was no in-service incurrence and did not consider or address this evidence. Thus, addendums must be obtained. With regard to the Veteran's claims for right ankle and headache disorders, diagnoses and complaints of chronic pain for both disorders have been shown in the records. He has asserted that they were caused or aggravated by the service-connected bilateral knee disabilities. While he was afforded VA examinations in December 2019, the same VA examiner provided no rationale for an aggravation opinion. Addendums must therefore be obtained. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Direct the claims file to a clinician for an addendum opinion regarding the Veteran's claims. The clinician is asked to provide an opinion as to the following: whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disorder was related to any incident of service, to include the September 1993 in-service complaints. whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine, headache, and right ankle disorders were caused or aggravated beyond their natural progression by service-connected bilateral knee disabilities, to include the September 2017 private opinion in support of the claims, as well as the Veteran's contentions. Thorough rationales should be provided for any opinions rendered. 3. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.