Citation Nr: 21025878 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-03 297 DATE: April 29, 2021 ORDER The application to reopen the claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. Service connection for multiple sclerosis (MS) is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. FINDINGS OF FACT 1. In an unappealed October 2012 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim for service connection for hearing loss. 2. Evidence received since the October 2012 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss. 3. The Veteran has currently diagnosed bilateral sensorineural hearing loss for VA purposes. 4. The Veteran was exposed to loud noise (acoustic trauma) while in service through his military occupational specialty as radar system technician. 5. The evidence is at least in equipoise as to whether symptoms of bilateral hearing loss first manifested in service and have been continuous since service separation. 6. The evidence is at least in equipoise as to whether symptoms of MS first manifested in service and have been continuous since service separation. CONCLUSIONS OF LAW 1. An October 2012 rating decision that denied the claim for service connection for hearing loss is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.1103 (2020). 2. New and material evidence has been received since the last denial of service connection for hearing loss and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria to establish entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2020). 4. The criteria to establish entitlement to service connection for MS are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1992 to February 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge in March 2021; a transcript of the hearing is of record. New and Material Evidence for Service Connection for Hearing Loss Laws and Analysis The Veteran was initially denied service connection for hearing loss in a July 2012 rating decision. The AOJ readjudicated the claim in October 2012 and confirmed and continued the denial for entitlement to service connection for hearing loss. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the October 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the October 2012 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran’s claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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) (2020). 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 why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim was initially denied as the Veteran was not found to have a hearing loss disability for VA compensation purposes. Notably, the Veteran had failed to attend a previously scheduled VA examination. The evidence received subsequent to the October 2012 rating decision includes, in pertinent part, a May 2017 VA audiological examination report confirming a hearing loss disability in both ears. The Board finds that the evidence discussed above is new and material within the meaning of applicable law and regulations because it is probative of the issues at hand. The examination report conducted in 2017 is new, as such evidence was not of record prior to the issuance of the October 2012 rating decision. Moreover, this evidence is material, as it relates to the unestablished element of a current disability. Accordingly, the Board finds that the newly added evidence relates to unestablished facts necessary to substantiate the Veteran’s claim of service connection for hearing loss. Accordingly, the claim is reopened. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral Hearing Loss The Veteran maintains that his hearing loss is related to noise exposure during service. A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). After a review of the medical evidence of record, the Board finds that the Veteran has a current bilateral hearing loss disability for VA purposes during the appeal period. In this regard, the Veteran had auditory thresholds of 40 decibels or greater at frequencies of 3000 and 4000 Hertz bilaterally. See 38 C.F.R. § 3.385. Next, the Board finds that the Veteran was exposed to acoustic trauma in service. The Veteran has already been awarded service connection for tinnitus, based in part on in-service noise exposure. As such, the Board finds the Veteran was exposed to acoustic trauma while in service. The Board further finds that the evidence is at least in equipoise as to whether symptoms of bilateral hearing loss began in service and have continued since service separation. Service treatment records include a June 1991 Report of Medical Examination, conducted at service entrance. At that time, auditory threshold in frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10, 10, 0, 5, and 0, respectively in the right ear. In the left ear, auditory threshold in frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 20, 20, 15, 15, and 10. In a September 1996 Report of Medical History (periodic medical evaluation), the Veteran specifically checked “YES” as to having hearing loss. In a January 1999 Report of Medical Examination, conducted at service separation, auditory threshold in frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10, 0, 0, 5, and 5, respectively in the right ear. In the left ear, however, auditory threshold in frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 10, 0, 5, 10, and 30. The Board finds that the January 1999 service separation report (which showed an auditory threshold of 30 dB at 4000 Herts) represents some hearing impairment during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Moreover, following service separation, the Veteran has consistently reported continuous symptoms of hearing loss. In his claim for VA compensation benefits, the Veteran indicated that his symptoms began in 1999. During the March 2021 Board hearing, the Veteran indicated that, during service, he worked 12-hour shifts in radar system and combat control, which included a 400 megahertz radar. The Veteran stated that, as a result of the high-pitch hum from the radar system, he would leave his post and “barely even hear other people talk to you.” The Board also notes that VA obtained a medical opinion in March 2017 regarding the etiology of the Veteran’s hearing loss. In providing a negative nexus opinion, the examiner stated that the Veteran had “normal hearing” at service separation. The VA examiner did not discuss the threshold shift demonstrated between service entrance and service separation audiological examinations. Therefore, the March 2017 VA examiner’s opinion did not consider all the relevant evidence. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premises are not probative). Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran’s statements made during the claim regarding noise exposure during service and continuous symptoms of hearing loss since service are internally consistent and therefore probative. Indeed, the Veteran is competent to report hearing difficulty, and the Board does not doubt his credibility in this regard. Based on this evidence, the Board will resolve reasonable doubt in the Veteran’s favor to find that symptoms of bilateral hearing loss were continuous since service separation. Accordingly, presumptive service connection for bilateral hearing loss is warranted. 38 C.F.R. §§ 3.102, 3.303. Multiple Sclerosis (MS) The Veteran also seeks service connection for MS. Specifically, he asserts that his MS first manifested as recurrent symptoms of numbness to his right side of his body, neck, and face, in addition to blurry vision during service. The Veteran has a current diagnosis of multiple sclerosis. See July 2017 VA examination report, noting that the Veteran was first diagnosed with MS in 2016. Thus, the Veteran has a current disability. Regarding in-service incurrence, service treatment records show that the Veteran reported having “swollen or painful joints” in a September 1996 periodic examination report. Service records also show that the Veteran sustained a right knee injury following his knee “giving way.” During a July 2017 VA examination, the Veteran indicated that he fell down a ladder on a ship when the right knee gave way. Although the Veteran was diagnosed with patellofemoral syndrome, he indicated that he had “odd symptoms” which he never reported, including slowness or heaviness of the legs. The Veteran indicated that he did not report these symptoms as he thought they were potentially due to dehydration, hypoglycemia, or as a consequence of PT sessions. He also recalled having trouble getting keys into keyholes or holding his pen correctly to sign. During service, the Veteran reported that these incidents occurred for 1-2 days in duration and then disappeared, but would return for 4-6 months. The July 2017 VA examiner indicated that the Veteran’s symptoms “more likely than not” related to what could be considered a premonitory or preclinical stage of his demyelinating condition of MS in which he had motor trouble with his lower extremities which were unexplained, transient, and now had become more severe and frequent. Therefore, the examiner opined that, although the Veteran did not report his symptoms in service, he recognized that he was having some problems, which were later linked to his condition of MS. The Board finds the July 2017 VA medical opinion to be highly probative as the examiner reviewed the claims file, addressed the relevant evidence of record, considered the Veteran’s statements, and provided an opinion supported by a clear and thorough rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (generally, the degree of probative value which may be attributed to a medical opinion takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file). As such, the Board finds that the 2017 VA medical opinion weighs in favor or a finding that the Veteran’s MS first manifested in service. The Board recognizes that service treatment records are absent for specific complaints of MS-related symptoms or a diagnosis of MS. Nonetheless, the Veteran has indicated that he did not report his symptoms in service as he thought they were related to “dehydration, hypoglycemia, or as a consequence of PT sessions.” The Board finds that this provides some credible explanation as to why he may have not reported these symptoms at that time. In sum, the Board finds that the evidence is at least in relative equipoise as to whether some of the Veteran’s MS symptoms first manifested during active duty service and continued since service separation. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for MS is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND Lumbar Spine Disorder The Veteran has been diagnosed with degenerative arthritis of the spine. See July 2017 VA spine examination report. During the March 2021 Board hearing, the Veteran indicated that his spine disorder may be secondary to his service-connected right knee disability or to his now service-connected MS disability. Although a medical opinion was obtained in July 2017, the examiner did not properly address the theory of secondary service connection. As such, a remand is required. Right Knee During the March 2021 Board hearing, the Veteran testified that his right knee disability had worsened since his last VA examination conducted in January 2019, over 2 years ago. For these reasons, a remand is necessary in order to afford the Veteran a contemporaneous examination so as to determine the current severity of his disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the electronic claims file. 2. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his lumbar spine disorder. The electronic claims file must be made available to the examiner for review. (a.) List all diagnoses pertaining to the Veteran’s spine. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s spine disorder was either caused or aggravated by his service-connected right knee and/or MS disabilities. Please note that for secondary service connection, “aggravation” need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (c.) All opinions should be accompanied by a clear rationale. 3. Schedule the Veteran for an examination in order to assess the current severity of his right knee disability, to include any neurological disorders. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner should conduct range of motion testing for both knees and provide an opinion as to range of motion based on: (a.) active motion; passive motion; (b.) weight-bearing; and non-weight bearing motions. 4. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.