Citation Nr: 21071442 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-45 858 DATE: November 30, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for hypertension is denied. Entitlement to service connection for intervertebral disc herniation of the lumbar spine is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to higher ratings for status-post total knee arthroplasty, previously rated as degenerative joint disease left knee with loose bodies and buckling requiring brace, is remanded. FINDINGS OF FACT 1. An August 1984 Board decision denied the Veteran's original claim for entitlement to service connection for hypertension. 2. The Veteran did not timely appeal a December 1999 rating decision that denied his petition to reopen the previously denied claim for entitlement to service connection for hypertension. 3. New and material evidence as to the claim for entitlement to service connection for hypertension has not been received since the December 1999 rating decision. 4. The probative evidence is at least at relative equipoise as to whether the Veteran's intervertebral disc herniation of the lumbar spine is caused by his service-connected left and right knee disabilities. CONCLUSIONS OF LAW 1. The August 1984 Board decision and the December 1999 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1100, 20.1103. 2. The criteria for reopening previously denied claim for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for entitlement to service connection for intervertebral disc herniation of the lumbar spine have been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1978 to July 1982. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in June 2021. Relevant to the issue denied herein, the remand directed the Agency of Original Jurisdiction (AOJ) to review the expanded record, including evidence entered since the statement of the case, and readjudicate the appeal. Pursuant to the remand, the AOJ issued a supplemental statement of the case in October 2021 in consideration of all evidence of record at the time. Accordingly, the Board finds that VA at least substantially complied with the June 2021 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The June 2021 remand also directed the AOJ to issue a statement of the case under the holding of Manlincon v. West, 12 Vet. App. 238 (1999), as to the Veteran's claim for entitlement to service connection for right leg sciatica. The AOJ issued that statement of the case in July 2021. The Veteran did not perfect an appeal to the Board of the issue. Therefore, the issue is not on appeal before the Board. See 38 C.F.R. §§ 19.20, 19.22. Additional evidence, to include VA treatment records, was associated with the record following the most recent adjudication of the issues on appeal. However, the additional evidence is not relevant to the issue denied herein. Accordingly, a remand for issuance of a supplemental statement of the case as to that issue is not necessary, and the Board may proceed with appellate consideration. See 38 C.F.R. § 19.37. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issue denied in this decision. Specifically, there is no indication that the Veteran's Social Security Administration records may include new and material evidence as to the previously denied claim for entitlement to service connection for hypertension. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for hypertension The Veteran seeks to reopen his previously denied claim for entitlement to service connection for hypertension. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is existing evidence not previously considered by VA. Material evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran submitted his original claim for entitlement to service connection for hypertension in October 1982. In that claim, the Veteran asserted that he was treated for hypertension in 1979 and that he has continued to have hypertension since his separation from active service. A December 1982 VA examiner noted the Veteran's current elevated blood pressure readings and diagnosed the Veteran with "hypertension, mild (no therapy)". In its August 1984 decision, the Board denied the Veteran's claim, finding that although the Veteran had several elevated blood pressure readings during his active service, those readings were interspersed with normal blood pressure readings in service. The Board further found that the in-service elevated readings, the elevated readings at the December 1982 VA examination, and the December 1982 VA examiner's diagnosis of mild hypertension did not establish that the Veteran had chronic hypertension to a compensable degree during his active service or within one year of his separation from active service. The Veteran has not filed a motion for reconsideration of the August 1984 Board decision, nor has such reconsideration been ordered by the Chairman of the Board. Therefore, the August 1984 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. VA received the Veteran's petition to reopen the previously denied claim for entitlement to service connection for hypertension in June 1990. In a July 1990 letter, the AOJ explained to the Veteran that new and material evidence was required to reopen the claim. The Veteran again sought to reopen the previously denied claim for entitlement to service connection hypertension in April 1998. The AOJ denied the Veteran's petition in the December 1999 rating decision, explaining that new and material evidence had not been received as to the previously denied claim. The letter informing the Veteran of the December 1999 rating decision was enclosed with a VA Form 4107 that explained his right to appeal the decision. The Veteran did not timely appeal the December 1999 rating decision, and new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. See 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52. The December 1999 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Accordingly, new and material evidence as to the issue must have been received since the December 1999 rating decision for the issue to be reopened and reviewed on the merits. Evidence that has been associated with the record since issuance of the December 1999 rating decision and that is relevant to the issue of entitlement to service connection for hypertension includes the Veteran's statements, to include his testimony at the August 2020 Board hearing, and additional VA treatment records. The Board finds that that evidence is not new and material. Regarding the Veteran's statements, he has presented arguments to the effect that his hypertension was first diagnosed during his active service and has continued through the present. Such arguments are the same as those he presented in support of the original claim that was denied in the August 1984 Board decision and in support of the petition to reopen that was denied in the December 1999 rating decision. Those assertions are therefore redundant of evidence previously considered and are not new evidence. The additional medical treatment records merely show continued diagnosis of and treatment for hypertension. Therefore, the medical treatment records are new in the sense that they were not previously considered by VA. However, they are not material because they do not relate to an unestablished fact necessary to substantiate the previously denied claims and/or do not raise a reasonable possibility of substantiating the previously denied claim, as they are cumulative of evidence previously considered. 38 C.F.R. § 3.156. In view of the foregoing, the Board finds that the evidence of record contains no new and material evidence received since the December 1999 rating decision as to the previously denied claim for entitlement to service connection for hypertension. Therefore, new and material evidence to reopen that finally denied claim has not been received, the doctrine of reasonable doubt is not for application, and the claim for entitlement to service connection for hypertension is not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for intervertebral disc herniation of the lumbar spine The Veteran contends that he developed low back pain due to his service-connected left and right knee disabilities. Specifically, he testified at the August 2020 Board hearing that his service-connected knee disabilities have caused his body to be "out of center" as a result of an altered gait, and that he has consequently developed low back pain. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's VA treatment records show that he has a diagnosis of intervertebral disc herniation of the lumbar spine. In October 2021, a private physician opined that the Veteran's low back pain is at least as likely as not a result of the repeated trauma sustained to his back from decades of severe limping caused by his service-connected knee disabilities. The physician also provided further explanation as to how a limp or otherwise altered gait places undue stress and strain on the structures of the back. VA examiners provided negative nexus opinions as to the Veteran's claimed lumbar spine disability in June 2011 and October 2021. However, the Board finds no reason to afford those negative nexus opinions more probative value than the private October 2021 opinion. Therefore, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current intervertebral disc herniation of the lumbar spine is caused by his service-connected knee disabilities. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for intervertebral disc herniation of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The June 2021 Board remand directed the AOJ to afford the Veteran a VA examination as to his claimed bilateral hearing loss to determine whether he has a current hearing loss disability and, if so, whether that hearing loss disability is related to his active service, to include in-service noise exposure. Pursuant to the Board remand, the Veteran was afforded a VA examination in August 2021. Audiological testing provided at that examination revealed that the Veteran has a bilateral hearing loss disability for VA purposes, as defined under 38 C.F.R. § 3.385. However, the Board finds that the opinion provided by that VA examiner is inadequate for decision-making purposes because it includes conflicting information. Specifically, the examiner provided a negative nexus opinion as to the Veteran's right ear hearing loss but a positive nexus opinion as to the Veteran's left ear hearing loss without explaining how the record shows a meaningful difference between the sensorineural hearing loss in the right ear versus that in the left ear. In other words, the examiner did not adequately explain why service connection is warranted for the left ear hearing loss but not for the right ear hearing loss. As such, the issue must be remanded so that an addendum opinion may be obtained. 2. Entitlement to higher ratings for status-post total knee arthroplasty, previously rated as degenerative joint disease left knee with loose bodies and buckling requiring brace, is remanded. A July 2021 Social Security Administration inquiry revealed that the Veteran is in receipt of Social Security Administration disability benefits. A remand is required to allow VA to request records pertaining to those benefits. The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent probability or greater) due to the Veteran's in-service exposure to noise from gunfire. The examiner should assume that the Veteran's reports of in-service exposure to noise from gunfire are true. The examiner should note that, under applicable law, the absence of evidence of a hearing loss disability during or shortly after service is not always dispositive to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service, such as determining that the disability is a delayed result of in-service noise exposure, may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. If the examiner determines that the hearing loss in one ear is related to the Veteran's active service but that the hearing loss in the other ear is not related to the Veteran's active service, he or she must explain why that is so and support that determination, for example, through citation to the record or relevant medical literature. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.