Citation Nr: 21012545 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-10 731 DATE: March 4, 2021 ORDER New and material evidence having been received, the claim for service connection for a right leg disability, to include knee replacement surgery, is reopened. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for right leg disability is remanded. Entitlement to service connection for a left leg disability, to include as secondary to a right leg disability, is remanded. FINDINGS OF FACT 1. In an unappealed March 1960 rating decision, the RO denied service connection for a right leg disability. 2. The evidence received since the March 1960 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for a right leg disability. CONCLUSIONS OF LAW 1. The March 1960 rating decision which denied service connection for residuals of an injury to the right thigh and leg is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. Following the March 1960 rating decision, new and material evidence has been received to reopen the service connection claim for a right leg disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to April 1959. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the Veteran’s claims file. During the pre-hearing conference, the question of whether the Board has jurisdiction over the issues of entitlement to an increased rating for acne and acne scars was raised. Out of an abundance of caution, the Board took testimony on these issues and indicated that it would address whether it had jurisdiction in the pending decision. The issues of entitlement to an increased rating for acne and acne scars were perfected to the Board with the timely filing of a September 2017 substantive appeal. The Veteran testified at a hearing conducted by another Veterans Law Judge in May 2019, and the Board issued a decision in August 2019 which denied these claims. Because the issues have already been decided by the Board, they are no longer on appeal and the Board lacks jurisdiction to adjudicate them again. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Whether new and material evidence has been received to reopen the service connection claim for a right leg injury. Law and Regulations In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. 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 to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Analysis The Veteran first initiated a service connection claim for a right leg and thigh injury in December 1959. In a March 1960 rating decision, the RO denied the claim, finding the Veteran’s disability incurred in service is held to be of a transitory nature and not a ratable entity. It indicated that residuals of an injury to the right thigh and leg were not found during a recent examination. He was notified of this decision and his right to appeal but did not initiate an appeal. No new and material evidence was received within one year of this decision or constructively added to the claims file. Evidence associated with the claims file after the March 1960 rating decision includes lay statements, the Veteran’s hearing testimony, and medical records. These records indicate that the Veteran underwent knee replacement surgery. He also testified that he has walked with a limp after separating from active duty. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely, the existence of a disability. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran was previously afforded a VA audiological examination in June 2016. During his January 2021 Board hearing, the Veteran testified that his hearing has worsened since his last examination. See January 2021 Hearing Transcript, page 5. As his last exam of record was in June 2016, and the record suggests that his disability may have increased in severity, a new examination is warranted. 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997) (a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination) 2. Entitlement to service connection for right leg injury is remanded. The Veteran contends his right leg injury is related to service. More specifically, he asserts he has a current limp and a knot in his right thigh due to a right leg injury he sustained when he was thrown over the guardrail of a ship while in service. The Board acknowledges the Veteran’s March 1959 separation examination reflects that his lower extremities were marked normal at separation. However, during his January 2021 hearing, the Veteran reported he has had a limp since service, and he has a knot in his right thigh, 2 to 3 inches above his knee. He stated that he did not report his limp at separation because they would not let you out of the military if you did not say you were okay. The Board finds that an opinion addressing whether the knot above the Veteran’s right knee is related to his right leg injury in service is necessary to adjudicate the claim. Such opinion should also address the Veteran’s lay statements regarding the continuity of symptomatology. 3. Entitlement to service connection for a left leg injury, to include as secondary to a right leg injury, is remanded. The Veteran contends his left leg disability is related to his right leg injury in service. More specifically, he has asserted that due to favoring the left leg throughout his life because of his limp and knot in his right thigh, he had to have a knee replacement in his left leg. See January 2021 VA Form 21-4138. The Board finds that an opinion addressing whether the Veteran’s left leg injury is related to his right leg injury in service, or whether his left leg injury is secondary to his right leg injury, if a secondary opinion is warranted, is necessary to adjudicate the claim. Such opinion should also address the Veteran’s lay statements regarding the continuity of symptomatology. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. Once the first request has been completed, schedule the Veteran for a VA audiological evaluation to determine the current severity of his service-connected bilateral hearing loss. The claims file should be made available to the examiner for review. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. 3. Once the first request has been completed, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and likely etiology of his claimed right leg disability, and his left disability injury, to include as secondary to right leg injury. After reviewing the record, the examiner should: (a.) Identify any right or left leg disability, to include residuals of knee replacement surgery. (b.) For any right leg disability identified, opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s disability was caused by or is otherwise related to his active duty service and explain why. (c.) For any left leg disability identified, opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s left leg injury was caused by or is otherwise related to his active duty service and explain why. The examiner should also address whether any left leg disability was (A) caused or (B) aggravated beyond its normal progression by an identified right leg disability. (d.) In rendering an opinion, the examiner should consider the Veteran’s lay statements of record, to include his testimony during the January 2021 Board hearing regarding the lump in the tendon above the knee and his alleged in-service injury. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Once each of the above requests have been completed, to the extent possible, readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.