Citation Nr: 21008987 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-10 578 DATE: February 18, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of service connection for right ear hearing loss is granted. New and material evidence has been received and the petition to reopen a claim of service connection for a right knee disability is granted. New and material evidence has been received and the petition to reopen a claim of service connection for a left knee disability is granted. REMANDED Entitlement to a compensable disability rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for cervical spine degenerative disc disease is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a May 1989 rating decision, the RO denied service connection for right ear hearing loss on the basis that the Veteran did not have a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. Evidence received since the May 1989 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. 2. In a May 1989 rating decision, the RO denied service connection for a right knee disability on the basis that the Veteran did not have a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. Evidence received since the May 1989 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. 3. In a May 1989 rating decision, the RO denied service connection for a left knee disability on the basis that the Veteran did not have a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. Evidence received since the May 1989 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received to reopen a claim of service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been received to reopen a claim of service connection for a left knee disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to October 1988. These matters come to the Board of Veterans’ Appeals (Board) from June 2014 and January 2017 rating decisions which, in pertinent part, continued a noncompensable rating for left ear hearing loss, denied service connection for cervical spine degenerative disc disease and hypertension, reopened claims of service connection for right ear hearing loss and a bilateral knee disability but continued to deny the claims on their merits, and denied entitlement to a TDIU. In August 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. A copy of the transcript is of record. The issues of entitlement to service connection for a gastrointestinal disability secondary to pain medication and to an increased rating for a service-connected lumbar spine disability and associated neurological manifestations were raised by the record during the August 2020 Board hearing. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over the issues, and they are referred to the AOJ for appropriate action. Reopening Claims Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of entitlement to service connection for right ear hearing loss and bilateral knee disabilities before addressing the claims on their merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A Board decision becomes final when it is issued as of the date-stamped on the decision, unless the appellant continues the appeal to the court or a motion for reconsideration is granted by the Board. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). 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). 1. Whether new and material evidence has been received to reopen a claim of service connection for right ear hearing loss. In a May 1989 rating decision, the RO denied service connection for right ear hearing loss on the basis that the Veteran did not have a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In February 2014, the Veteran filed to reopen his claim of service connection for right ear hearing loss. Since the May 1989 rating decision, evidence added to the claims file includes VA and private treatment records, VA examination reports, and hearing testimony. Specific to claim of service connection for right ear hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A June 2014 VA examination report reflects right ear pure tone thresholds of 30, 30, 30, 40, and 50 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition was 84 percent in the right ear using the Maryland CNC word list. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final May 1989 rating decision. Specifically, the evidence shows a current right ear hearing loss disability for VA purposes. Thus, new evidence submitted since the RO’s May 1989 decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., a current disability) necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO’s May 1989 rating decision and reopening the claim of service connection for right ear hearing loss is warranted. The Veteran’s petition is granted only to this extent. 2. Whether new and material evidence has been received to reopen claims of service connection for right and left knee disabilities. In a May 1989 rating decision, the RO denied service connection for right and left knee disabilities on the basis that the Veteran did not have a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. In February 2014, the Veteran filed to reopen his claims of service connection for a right and left knee disabilities. Since the May 1989 rating decision, evidence added to the claims file includes VA and private treatment records, VA examination reports, and hearing testimony. A June 2014 VA examination report reflects a diagnosis of bilateral knee osteoarthritis. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final May 1989 rating decision. Specifically, the evidence shows current right and left knee disabilities. Thus, new evidence submitted since the RO’s May 1989 decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., a current disability) necessary to substantiate the claims. Therefore, new and material evidence has been received since the RO’s May 1989 rating decision and reopening the claims of service connection for right and left knee disabilities is warranted. The Veteran’s petition is granted only to this extent. REASONS FOR REMAND As it pertains to the claims of service connection for right ear hearing loss, a cervical spine disability, a bilateral knee disability, and hypertension, evidence indicates that there may be outstanding relevant VA treatment records. In an August 2016 statement, the Veteran reported that he was treated at the VAMC in Asheville, North Carolina from 1988 to 1998 and at the VAMC in Biloxi, Mississippi from 1998 to 2003. The earliest VA treatment records associated with the claims file are dated in 2003. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In the August 2016 statement, the Veteran also identified relevant outstanding private treatment records from the St. Francis Hospital in Memphis, Tennessee in 1987 and from Dr. N.L. in 2003. A remand is required to allow VA to obtain authorization and request these records. Finally, the Veteran’s claims file does not appear to contain his complete service personnel records for his period of service. As they may contain information regarding the Veteran’s report of in-service injury, a remand is required to obtain them. 1. Entitlement to a compensable disability rating for left ear hearing loss. The Board cannot make a fully-informed decision on the issue of entitlement to a compensable disability rating for left ear hearing loss at this time. During the August 2020 Board hearing, the Veteran asserted that his hearing disability has increased in severity since he was last examined by VA in June 2014. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left ear hearing loss.   2. Entitlement to service connection for right ear hearing loss. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for right ear hearing loss because no VA examiner has opined whether the Veteran’s right ear hearing loss was incurred in or is otherwise related to service. 3. Entitlement to service connection for cervical spine degenerative disc disease is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a cervical spine disability at this time. While a June 2014 VA examiner opined that the Veteran’s cervical spine degenerative arthritis was less likely than not incurred in or otherwise related to service, but rather due to aging, the examiner’s opinion appears to be based on a finding that the Veteran’s service treatment records were silent for cervical spine complaints and that the evidence did not support the current diagnosis until 17 years after service. However, service treatment records show complaints of neck pain, including a September 1979 complaint of back pain between his scapulae, a February 1986 complaint of pain and numbness up his neck to the back of his head, an April 1986 complaint of upper back pain since a football accident six years earlier, and a June 1987 orthopedic consult noting complaints of cervical spine pain with tenderness over the cervical region that was not attributable to rheumatoid arthritis. Furthermore, an April 2014 letter that was received in May 2014 from the Veteran’s chiropractor that reflects the Veteran first sought treatment in July 1998 for neck pain, or approximately 10 years after separation from service. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran’s cervical spine disability.   4. The claims of entitlement to service connection for right and left knee disabilities are remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for right and left knee disabilities at this time. While a June 2014 VA examiner opined that the Veteran’s right and left knee disabilities were less likely than not incurred in or otherwise related to service, but rather due to aging, the examiner’s opinion appears to be based on a finding that the Veteran’s service treatment records were silent for right or left knee complaints. However, service treatment records show complaints of knee pain, including an October 1978 complaint of bilateral knee pain and grinding for one and a half years, November 1978 complaints of bilateral knee pain and right knee pain with tenderness to the patella, a January 1979 complaint of sore knees after running, and a March 1979 complaint of bilateral knee pain for two years. Additionally, the Veteran filed claims of service connection for his knees on separation from service. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran’s right and left knee disabilities. 5. Entitlement to service connection for hypertension is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether the Veteran’s hypertension was incurred in or otherwise related to service, to include the Veteran’s contentions that his blood pressure was high during service and that it was often taken again after sitting for a period of time. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. Finally, because a decision on the remanded increased rating and service connection claims as discussed above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from the Asheville, North Carolina VAMC from 1988 to 1998 and from the Biloxi, Mississippi VAMC from 1998 to 2003. 2. Ask the Veteran to complete a VA Form 21-4142 for the St. Francis Hospital in Memphis, Tennessee in 1987 and Dr. N.L. in 2003. Make two requests for the authorized records from the St. Francis Hospital and Dr. N.L., unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his right ear hearing loss and the current severity of his service-connected left ear hearing loss. The examiner must review the claims file and should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s hearing disability under the rating criteria. As to the Veteran’s right ear hearing loss, the examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s right ear hearing loss (1) began during active service, to include the Veteran’s lay statements pertaining to in-service hazardous noise exposure and bleeding ears and that it is highly probable that the Veteran was exposed to hazardous noise due to his military occupational specialty (MOS) as an aircraft mechanic, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his cervical spine disability, diagnosed as cervical spine degenerative disc disease. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s cervical spine disability (1) began during active service, to include related to in-service complaints of cervical spine/neck pain, including a September 1979 complaint of back pain between his scapulae, a February 1986 complaint of pain and numbness up his neck to the back of his head, an April 1986 complaint of upper back pain since a football accident six years earlier, and a June 1987 orthopedic consult noting complaints of cervical spine pain with tenderness over the cervical region that was not attributable to rheumatoid arthritis, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, including an April 2014 letter noting the Veteran sought treatment for cervical spine pain in July 1998 and the Veteran’s lay statement concerning onset? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 5. Schedule the Veteran for a VA examination for his bilateral knee disability, diagnosed as right and left knee osteoarthritis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s right and/or left knee disability (1) began during active service, to include related to the rigors of service and in-service complaints of knee pain, including an October 1978 complaint of bilateral knee pain and grinding for one and a half years, November 1978 complaints of bilateral knee pain and right knee pain with tenderness to the patella, a January 1979 complaint of sore knees after running, and a March 1979 complaint of bilateral knee pain for two years, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, to include that the Veteran filed a claim of service connection for a bilateral knee disability upon separation from service and an April 2014 letter from the Veteran’s treating clinician noting complaints of right knee pain as early as September 2000 and bilateral knee pain as early as September 2002? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 6. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s hypertension (1) began during active service, to include related to the Veteran’s assertions that his blood pressure was high during service and his blood pressure was retaken after sitting for a period of time, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 7. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, Associate 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.