Citation Nr: 21005379 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-39 810 DATE: February 1, 2021 ORDER New and material evidence has been received, and the claim for service connection for a low back disability is reopened. New and material evidence has been received, and the claim for service connection for a right knee disability is reopened. REMANDED The issue of whether new and material evidence has been received to reopen the claim for service connection for pseudofolliculitis barbae is remanded. The issue of whether new and material evidence has been received to reopen the claim for service connection for a neck disability is remanded. The issue of whether new and material evidence has been received to reopen the claim for service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a heart disorder is remanded. FINDINGS OF FACT 1. In an August 2008 rating decision, the RO declined to reopen the Veteran’s claims for service connection for low back and right knee disabilities; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the August 2008 final denial is new and relates to an unestablished fact necessary to substantiate the claims for service connection for low back and right knee disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim for service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1973, with additional reserve service. These matters come before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board, in relevant part, denied entitlement to service connection for bilateral hearing loss and heart disabilities, and declined to reopen the previously denied claims for service connection for pseudofolliculitis barbae, neck, right shoulder, low back and right knee disabilities. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claim (Court). In July 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the portion of the April 2019 Board decision that denied service connection for bilateral hearing loss and heart disabilities and declined to reopen the service connection claims for pseudofolliculitis barbae, neck, right shoulder, low back and right knee disabilities. The Board notes that the Veteran’s claim for entitlement to service connection for tinnitus is pending before the Board; however, as the appeal is under the modernized appeal system, it will be addressed at a later date in a separate decision. Petitions to Reopen 1.-2. Whether new and material evidence has been submitted to reopen the claims for entitlement to service connection for low back and right knee disabilities After reviewing the record, the Board finds that new and material evidence has been received to warrant reopening the claims for service connection for low back and right knee disabilities. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, a claim will be reconsidered if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). By way of history, the Veteran’s claims for entitlement to service connection for low back and right knee disabilities were initially denied in a December 2005 rating decision. The Veteran appealed this decision by filing a timely notice of disagreement in August 2006; however, he did not perfect an appeal of the claim following the issuance of the November 2006 statement of the case, and the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In March 2008, the Veteran filed petitions to reopen the previously denied claims for service connection low back and right knee disabilities. In an August 2008 rating decision, the RO declined to reopen the previously denied claims for the low back and right knee disabilities. The Veteran did not initiate an appeal of that decision and it became final. See id. The August 2008 final rating decision declined to reopen the previously denied claim for service connection for a low back disability because the evidence did not show the diagnosed back condition was incurred in or related to service and declined to reopen the previously denied claim for service connection for a right knee disability because the evidence did not show the condition was currently diagnosed. The RO considered the Veteran’s statements, service treatment records and post-service medical evidence of record. Evidence added to the record since the final August 2008 rating decision includes additional service personnel records from the Veteran’s period of active duty service; however, these records do not contain complaints or findings related to the claimed disabilities. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply. Evidence added to the record since the August 2008 rating decision includes statements by the Veteran, including those in November 2016, April 2020 and October 2020, which describe events in service, address continuity of symptomatology, and provide links to medical articles in support of his contention that his current osteoarthritis is related to in-service duties as a paratrooper. It also includes VA and private treatment records, including a July 2006 private treatment record diagnosing chondromalacia in the medial joint of the right knee; a December 2015 private treatment record reflecting reported back pain for 30 years; and a January 2017 VA knee examination report diagnosing right knee joint osteoarthritis and providing a negative nexus opinion. This evidence is presumed credible solely for purposes of new and material evidence analysis. See Justus, supra. Taken together, this evidence is new. It is also material, as it contributes to a more complete picture of the origins of the claimed low back and right knee disabilities. Accordingly, the Board finds that new and material evidence has been received, and the claims for entitlement to service connection for low back and right knee disabilities are reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1.-3. Whether new and material evidence has been submitted to reopen the claims for entitlement to service connection for pseudo folliculitis barbae, neck and right shoulder disabilities 4.-7. Entitlement to service connection for low back, right knee, heart and bilateral hearing loss disabilities The Board finds that further development is needed prior to adjudicating the issues of whether new and material evidence has been received to reopen the claims for service connection for pseudofolliculitis barbae, neck and right shoulder disabilities; the reopened claims for service connection for low back and right knee disabilities; and the initial claims for service connection for bilateral hearing loss and a heart disorder. In the April 2020 Joint Motion, the parties concluded that the Board erred when it did not address whether VA complied with the duty to assist when it did not send the Veteran any Veterans Claims Assistance Act (VCAA) notices regarding the service connection claims for bilateral hearing loss and heart disabilities and the petitions to reopen the previously denied service connection claims for pseudofolliculitis barbae, neck, low back, right knee and right shoulder disabilities. The parties noted that this was significant because the January 2017 VA knee examiner relied on the absence of treatment records from 1973 to 1998; however, VA and private medical treatment records from 1973 and 1998 were not requested or found unavailable. Further, the parties found the Board erred when it did not address whether the Veteran’s in-service complaints and treatment for ear problems and chest pain, as documented in the service treatment records, may be associated with his current bilateral hearing loss and heart disorder and, thus, trigger VA’s duty to provide a medical examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that, subsequent to the Joint Motion, additional evidence has been added to the record, including April 2020 and October 2020 correspondence from the Veteran, in which he asserts his bilateral hearing loss is related to treatment for ear infections/otitis during service, and medical articles submitted in October 2020 suggesting that untreated, chronic or recurrent middle ear infections may cause permanent middle ear damage and hearing loss, and repeated trauma to joint tissues is a risk factor for knee osteoarthritis. Thus, the Board finds a remand is needed to undertake additional development, to include VA examinations addressing the claimed bilateral hearing loss, heart and low back disabilities and obtain a new VA opinion addressing the claimed right knee disability. Finally, there appear to be outstanding Workman’s Compensation records. Private treatment records, including those in June 2005, April 2008, June 2011 and April 2013, indicate that the Veteran filed multiple Workers’ Compensation claims related to back, neck and right shoulder injuries. Records from the Veteran’s workman’s compensation claim are not of record. On remand, information concerning the Veteran’s workman’s compensation claims and any related treatment should be requested. The matters are REMANDED for the following actions: 1. Issue a VCAA notice letter to the Veteran concerning his claims for service connection for bilateral hearing loss, heart, low back and right knee disabilities and petitions to reopen the previously denied claims for service connection for pseudofolliculitis barbae, neck and right shoulder disabilities. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed pseudofolliculitis barbae, neck, right shoulder, bilateral hearing loss, heart, low back and right knee disabilities, including any private medical providers who treated him from 1973 to 1998. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. If requested records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 3. Obtain outstanding VA treatment records, to include those from 1973 to 1998 and since August 2019. If any requested records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 4. After securing any necessary release, request any relevant records regarding the Veteran’s claims for workers’ compensation benefits. If any requested records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 5. After records development is completed, schedule the Veteran for a VA audiological examination to determine the nature of the claimed bilateral hearing loss and obtain an opinion as to whether such is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the current bilateral hearing loss arose during active service or is otherwise related to active service. The examiner should explain why or why not, to include addressing the service treatment records in 1973 pertaining to ear infections/otitis and whether such treatment and noted symptoms made the Veteran more susceptible to subsequently developing his current hearing loss and medical articles suggesting a positive correction between middle ear infections and permanent hearing loss (see Veteran’s October 2020 statement citing medical articles). The examiner should also explain why the current bilateral hearing loss is or is not merely a delayed residual of in-service noise exposure. 6. Schedule the Veteran for a VA heart examination to determine the nature of the claimed heart disability and obtain an opinion as to whether such is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any current heart disability arose during active service or is otherwise related to active service. The examiner should explain why or why not, to include addressing service treatment records in 1972 and 1973 reflecting complaints of chest pain and whether the current heart disability is a continuation or maturation of the in-service symptoms. 7. Schedule the Veteran for a VA spine examination to determine the nature of the claimed low back disability and obtain an opinion as to whether such is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. After reviewing the claims file and examining the Veteran, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any current low back disability arose during active service or is otherwise related to active service. The examiner should explain why or why not, to include addressing service treatment records in 1972 and 1973 reflecting complaints of low back pain and whether the current low back disability is a continuation or maturation of the in-service symptoms. The examiner should also address whether any current low back condition is a delayed post-traumatic residual to in-service parachute jumps and paratrooper activities; 8. Provide the claims file to an appropriate VA examiner to obtain an addendum opinion regarding the claimed right knee disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After reviewing the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any current right knee disability arose during active service or is otherwise related to active service. The examiner should explain why or why not, to include addressing service treatment records in 1972 and 1973 reflecting complaints regarding the right knee and diagnoses of right knee sprain and chondromalacia, and whether any current right knee disability is the same condition or maturation of that noted in service. The examiner should also address whether any current right knee condition is a delayed post-traumatic residual to in-service parachute jumps and paratrooper activities and the medical articles suggesting a positive correlation between joint tissue trauma and osteoarthritis (see Veteran’s October 2020 statement citing medical articles). 9. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.