Citation Nr: 21021049 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-10 471 DATE: April 9, 2021 ORDER New and material evidence having been received, the claim for service connection for a right ankle disorder is reopened. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a June 2000 rating decision, a petition to reopen service connection for a right ankle disorder was denied on the basis that there was no new and material evidence showing treatment for a right ankle disorder. 2. Evidence received after the June 2000 denial relates to unestablished facts necessary to substantiate that claim of service connection. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a right ankle disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from February 1963 to February 1965. He initially testified before a Veterans Law Judge (VLJ) during an October 2020 hearing. However, a complete transcript of the hearing could not be produced due to an audio malfunction. See February 2021 email. The Veteran opted for a new hearing, which was held in March 2021 hearing before the undersigned VLJ. This matter is on appeal from a November 2018 rating decision. New and Material Evidence In this case, the Veteran did not submit a Notice of Disagreement (NOD) in response to a June 2000 rating decision denying a petition to reopen the previously denied claim of service connection for a right ankle disorder on the basis that there was no evidence showing any treatment for a right ankle disorder. 38 U.S.C. § 7105. Evidence received since that decision includes the Veteran's hearing testimony regarding an in-service right ankle injury, and treatment records showing a diagnosis of arthritis. This evidence is new to the record, as it suggests a current disorder related to service; relates to unestablished facts necessary to substantiate this claim for service connection; and raises a reasonable possibility of substantiating the claim. The claim is thus reopened, and is addressed in the remand below. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disorder. The Board of Veterans’ Appeals (Board) cannot make a fully-informed decision on the issue of service connection for a right ankle disorder because no VA examiner has opined whether such is related to reported in-service injuries. The Veteran testified about two injuries that occurred during service, and a March 2019 VA treatment record shows that one of the Veteran's reported injuries “can certainly” be linked to his right ankle pain. Remand to afford the Veteran a VA examination is necessary. 2. Entitlement to service connection for bilateral hearing loss. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because a VA opinion is necessary to determine if it related to service. The Veteran had a VA examination in October 2018. No opinion regarding whether it was related to service was provided since his hearing loss did not meet VA’s definition of a disability at that time. In January 2021, the Veteran submitted a private December 2020 audiogram showing a bilateral hearing loss disability as defined by VA. Remand to obtain a medical opinion regarding whether bilateral hearing loss is related to service is necessary. 3. Entitlement to service connection for a low back disorder. The Board cannot make a fully-informed decision on the issue of service connection for a low back disorder because no VA examiner has opined whether such is related to reported in-service injuries. The Veteran testified about two injuries that occurred during service, and a March 2019 VA treatment record shows that one of the Veteran’s reported injuries “can certainly” be linked to his current chronic low back pain. Remand to afford the Veteran a VA examination is necessary. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed right ankle and low back disorders. (Multiple examinations may instead be conducted, and most likely are necessitated; the Board leaves this to the discretion of the Agency of Original Jurisdiction (AOJ) and the facility at which any examination is to be conducted.) The most up-to-date Disability Benefits Questionnaire(s) should be utilized. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. For any right ankle and low back disorders diagnosed, the examiner(s) is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnoses are related to the Veteran’s military service. A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the Veteran's testimony regarding two in-service injuries, including one in which he also injured his left knee, which is service connected; and the March 2019 VA treatment record relating the Veteran's right ankle and low back pain to an injury when an A4 Skyhawk plane crashed on the deck of an aircraft carrier. 3. Obtain a medical opinion from the October 2018 VA hearing loss and tinnitus examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of bilateral hearing loss. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that the Veteran's bilateral hearing loss is related to his military service. The examiner should consider the private December 2020 audiogram showing a bilateral hearing loss disability as defined by VA. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.