Citation Nr: 21013322 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-05 087A DATE: March 9, 2021 ORDER New and material evidence having been submitted, the previously denied claim of service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral ear hearing loss is remanded. Entitlement to service connection for arthritis of multiple joints is remanded. Special monthly compensation (SMC) based on the need for aid and attendance is remanded. Eligibility for specially adapted housing or special home adaptation is remanded. FINDINGS OF FACT 1. By a decision entered in March 2008, the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama denied the Veteran’s claim for service connection for bilateral hearing loss; no appeal was filed, and no new and material evidence was received within the appeal period. 2. Evidence added to the record since the March 2008 decision denying service connection for bilateral hearing loss relates to an unestablished fact necessary to substantiate the claim for service connection for that disability and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW The criteria for reopening a claim of entitlement to service connection for bilateral ear hearing loss have all been met and the claim is reopened; to this limited extent, the claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1968 to July 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2010 and February 2014 rating decisions issued by the VARO in Montgomery, Alabama. This case was previously before the Board in November 2017, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. The Board notes that the issue of entitlement to service connection for sleep apnea was also remanded. However, during the pendency of the appeal, service connection for sleep apnea was subsequently established by a January 2020 rating decision. As that issue has been resolved in full, it is no longer for consideration by the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board further notes that the January 2020 rating decision also granted the issue of entitlement to SMC on the basis of being housebound. However, the Veteran still seeks entitlement to SMC at the higher rate based on the need for aid and attendance. As such, this issue remains on appeal. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering VA’s duty to assist. Id. at 118. The RO previously considered and denied a claim for hearing loss in a March 2008 rating decision. In that decision, the RO found that the Veteran did not have a hearing loss disability for VA purposes. The Veteran was notified of that decision and of his appellate rights; however, he did not file an appeal. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the March 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The evidence before the VA at the time of the prior final rating decision relating to the claims consisted, in part, of the Veteran’s service treatment records, February 2008 VA examination, and VA and private treatment records. The evidence received since the March 2008 rating decision includes additional VA and private treatment records and the report of a new September 2020 VA audiological evaluation. The Board finds that this evidence is new, as it was not previously contemplated by the VA, and it was material as it relates to unestablished facts necessary to substantiate the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is therefore new and material. The claim for service connection for bilateral hearing loss is reopened. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. Entitlement to service connection for bilateral hearing loss is remanded. As noted above, the Veteran was afforded a VA examination in September 2020. The examiner found that it was unlikely that the Veteran’s hearing loss was related to service, in pertinent part, because his hearing was normal at service separation and there were no significant threshold shifts in either ear. In so doing, however, the examiner did not discuss the medical significance, if any, of the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service separation. In light of that omission, further clarification is necessary. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for arthritis of multiple joints is remanded. Regarding the arthritis claim, the record reflects that there are significant outstanding private treatment records that may be relevant to the remaining claims. First, the record reflects the Veteran has received treatment from Dr. E.M. for over 30 years. Treatment records from Dr. E.M. dated from September 2016 through July 2017 have been associated with the record; however, however, it is unclear whether they represent the complete records from that provider. The record also reflects that the Veteran is co-managed by other private physicians, including Dr. L and Dr. B. at Sherrill Orthopedic Sports and Hand. At present, those private medical records have not been obtained. Because additional records from these providers, if obtained, could bear on the outcome of the Veteran’s appeal, specific efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). In addition, VA treatment records indicate that the Veteran has received benefits from the Social Security Administration (SSA) since at least 2008. It is not entirely clear whether the benefits he has received have been due to disability or retirement. Thus far, it does not appear that the SSA records have been obtained. As the records could bear on the matters remaining on appeal, efforts should be made to obtain them. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 3. Entitlement to SMC based on the need for aid and attendance is remanded. 4. Eligibility for specially adapted housing or special home adaptation is remanded. The Board also finds the Veteran’s claims for entitlement to aid and attendance, and specially adapted housing and special home adaptation grants are inextricably intertwined with the remanded service-connection claims above, particularly regarding arthritis of multiple joints. Accordingly, the Board will defer decisions on those matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to provide releases for relevant private records of treatment from Dr. E.M., Dr. L., and Dr. B., or any other private treatment provider, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Ask the SSA to indicate whether the Veteran has ever been awarded SSA disability benefits and, if so, to provide copies of any and all records pertaining to that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hearing loss disability, if it exists in either ear, is at least as likely as not related to the Veteran’s in-service noise exposure. (Continued on the next page)   In rendering the requested opinion, the examiner should consider and discuss the medical significance, if any, of the fact that no audiometric data were recorded for either ear at 3000 Hertz when the Veteran was examined for service separation. The examiner should specifically discuss whether, in the absence of audiometric data at 3000 Hertz, it is possible to determine whether the Veteran’s hearing was normal at that frequency at the time of separation, and whether it is possible to determine whether any threshold shifts occurred at that frequency during service. The examiner should also discuss whether, regardless of an audiometric shift during active service, the Veteran’s noise exposure may nonetheless be attributed to his present hearing loss. A complete medical rationale for all opinions expressed should be provided. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.