Citation Nr: 21070577 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-23 931 DATE: November 24, 2021 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for a back injury is granted. As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for a head injury is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for residuals of head injury, to include memory loss is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. An unappealed September 1984 rating decision denied the claims for service connection for a back injury and head injury; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relate to an unestablished fact necessary to reopen the claims. 2. The competent evidence does not demonstrate that the Veteran has had a bilateral hearing loss disability as defined by VA at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The September 1984 rating decision denying claim for service connection for a back injury is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 20.1103. 2. The September 1984 rating decision denying claim for service connection for a head injury is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 20.1103. 3. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.103, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1981 to June 1984. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims folder. 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a back injury. 2. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a head injury. The Board concludes that a September 1984 rating decision denying the claims for entitlement to service connection for a back injury and a head injury is final; and that new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A September 1981 rating decision denied the Veteran's claims for service connection for a residuals of a back and head injury because the Veteran had failed to present for his scheduled VA examination and the evidence of record was insufficient to establish service connection for VA purposes. VA received no appeal or no new and material evidence prior to expiration of the appeal period. Therefore, the September 1984 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. Evidentiary submissions received since the September 1984 rating decision includes new and material evidence. Specifically, additional VA medical records show that the Veteran has current diagnoses of lumbosacral strain and degenerative arthritis of the lumbar spine. See C&P Exam (March 2015). In addition, the Veteran has provided testimony that he has experienced recurrent back problems since his in-service injury when he was thrown off a tank during an explosion and landed on his back. See Hearing Transcript (March 2021). Together, this additional evidence tends to show the presence of a current back disability as well as continuity of symptoms since in-service back injuries. With respect to head injury claim, the additional evidence includes the Veteran's testimony of the onset of headaches following his in-service head injury and the continuity of such symptoms since then as well as the later development of memory problems, which tends to show a current disability as well as possible etiology to service. See Hearing Transcript (March 2021). Considering the "low threshold" standard for reopening endorsed by the Court in Shade, the evidence addressed above raises a reasonable a possibility of substantiating the underlying claims. Accordingly, the petition to reopen the claims of service connection for a back injury and a head injury is granted. 3. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he has a bilateral hearing loss disability related to military noise exposure. He reports exposure to significant noise in service to include from tank live fire rounds during field training. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). Certain chronic diseases, including organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Court has established that the threshold for normal is from 0 to 20 decibels. Id. As an initial matter, the record does not reflect that the Veteran has a hearing loss disability for VA purposes as defined at 38 C.F.R. § 3.385. Therefore, the Board concludes that the preponderance of the evidence is against finding that the Veteran has had bilateral hearing loss at any time during or approximate to the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board concludes that a bilateral hearing loss disability as defined by VA has not been shown at any time during or approximate to the pendency of the claim. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.103, 3.303, 3.385. The Veteran initiated his claim for hearing loss disability in November 2013. He was afforded VA audiological examinations in February 2015. The report contains no findings that meet VA's criteria for a hearing loss disability. In February 2015, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ February 2015 500 1000 2000 3000 4000 RIGHT 15 10 15 20 20 LEFT 15 15 15 20 20 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. See C&P Exam (February 2015). Based on these results, the Veteran does not have a current hearing loss disability as defined by VA regulations. See 38 C.F.R. § 3.385. In addition, VA treatment records do not reflect findings of hearing loss disability as defined by 38 C.F.R. § 3.385. Rather, an April 2014 VA audiology consultation report noted that the audiometric results revealed the Veteran's hearing within normal limits from 500 Hz to 4,000 Hz, bilaterally. See CAPRI (July 2014). The Veteran has not identified any outstanding relevant treatment for related to his hearing loss claim. While the Veteran is competent to report hearing loss, the audiological findings needed to establish the presence of disability for VA purposes under 38 C.F.R. § 3.385 are not susceptible to lay observation. It requires specialized medical testing by a trained professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements as having a hearing loss disability for VA purposes have no probative value. Absent competent, credible evidence of a disability during or approximate to the filing of the claim, there can be no valid claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for a lumbar spine disorder is remanded. 4. Entitlement to service connection for residuals of a head injury, to include memory loss is remanded. 5. Entitlement to service connection for headaches is remanded. Remanded Issues 1-5: To ensure that VA has met its duty to assist, remand is required for the following reasons. See 38 C.F.R. § 3.159 Initially, the Board notes that the Veteran's service treatment records (STR) appear to be incomplete. Significantly, the available records do not include a separation examination or an associated report of medical history. In addition, the available STR indicate that the Veteran received treatment at William Beaumont Army Medical Center on or around February 7, 1983, to include lumbar spine x-rays; however, records from that medical facility at that time are absent. There is no formal determination that the records did not exist, nor that further efforts to obtain these records would be futile. Accordingly, a thorough search should be conducted on remand, and a formal finding associated with the claims file if such records cannot be located. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (2). Next, the Board finds that a remand is required to obtain a medical opinion that addresses adequately addresses the Veteran's claimed residuals of head injury and headache disorder. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Veteran was afforded with a March 2015 Traumatic Brain Injury (TBI) VA examination, in which the examiner noted that there was no current diagnosis of TBI and declined to complete the remainder of the examination report and no medical opinion was provided. The Board finds this examination to be incomplete and inadequate for VA adjudication purposes. See Barr, 21 Vet. App. at 311. In this regard, the Veteran has reported the onset of headache in service following a head injury in August 1981 when he was struck in the forehead by a .50 caliber machine gun, and he is competent to injury, onset of symptoms, and continuity of symptoms as well as the development of memory problems. See C&P Exam (March 2015, and Hearing Transcript (March 2021). Hence, a medical opinion is still need that addresses whether the Veteran's claimed headaches and memory loss are at least as likely as not etiologically related to his documented in-service head and facial injury in August 1982. Lastly, the Veteran has indicated the existence of relevant outstanding treatment records. Notably, the Veteran reported a history of lumbar spine fusion with discectomy and left knee arthroscopies when he initiated his VA care. See CAPRI (July 2014). In addition, during his Board hearing, the Veteran testified that he was required to undergone physical examinations for the Department of Transportation to maintain his truck driver license. See Hearing Transcript (March 2021). The record does not contain any private treatment records. The Board notes that these private treatment records are relevant to the Veteran's claims and should be obtained on remand. Given the above, remand is necessary to obtain the relevant outstanding private treatment records, which should then be associated with the claims file. See 38 C.F.R. § 3.159(c)(2) The matters are REMANDED for the following action: 1. Undertake all necessary actions to obtain the Veteran's complete STRs and military personnel records. If a separation examination report and/or treatment records from William Beaumont Army Medical Center in February 1983 are still not included in the records obtained, make a formal finding that the document is not available and notify the Veteran of the finding. All steps taken to obtain the records should be documented. 2. Update the claims folder with the Veteran's VA treatment records dated from December 2015 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms related to back, knee, tinnitus, headaches, and residuals of head injury since service separation. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. If additional relevant STRs are associated with the claims, determine whether addendum medical opinions are necessary to the remaining issues on appeal. 5. Obtain VA medical opinions from an appropriate clinician regarding the Veteran's claimed headaches and memory loss as residuals of head injury. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any headache or residual of head injury to include memory loss. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a.) Whether it is at least as likely as not the Veteran's has headache disability that (a) began during his active service; or (b) manifested to a compensable degree within one year after his service separation; (c) was noted in service with continuity of symptomatology; or (d) is otherwise related to an in-service injury, event, or disease. Explain. If another etiology is more likely the cause, then this should be identified and fully explained. (b.) Whether it is at least as likely as not that the Veteran has a memory loss disability that (a) began during his active service; or (b) manifested to a compensable degree within one year after his service separation; (c) was noted in service with continuity of symptomatology; or (d) is otherwise related to an in-service injury, event, or disease. Explain. If another etiology is more likely the cause, then this should be identified and fully explained. At a minimum, the opinion must reflect consideration of the following: (1) STRs show the Veteran sustained head and facial injury on August 30, 1982 when he was struck in the forehead by a .50 caliber machine gun; and (2) the Veteran's reports of ongoing symptoms of headaches since in-service head injury and the later development of memory issues. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (2): A negative medical opinion may not be predicated solely on the absence of medical literature and/or research/studies supporting causation or aggravation. NOTE (3): The clinician is not required to accept the Veteran's reported history of symptoms onset, progression, etc., but must provide a complete explanation for any history that is discounted or otherwise rejected. 6. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray, 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.