Citation Nr: 21027879 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 19-38 975 DATE: May 7, 2021 ORDER The claim of entitlement to service connection for residual hernia surgery scars is reopened; to this extent only, the claim is granted. The claim of entitlement to service connection for a right ear condition is reopened; to this extent only, the claim is granted. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a low back condition is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a right knee condition is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left knee condition is denied. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a hernia surgery residual condition other than surgical scars is denied. Entitlement to service connection for right ear sensorineural hearing loss (SNHL) is granted. REMANDED Entitlement to service connection for residual hernia surgery scars is remanded. FINDINGS OF FACT 1. The April 30, 2015 rating decision that denied service connection for a bilateral knee condition, back condition, ear condition, and residuals of hernia operation with scar is final. 2. Evidence received since the final April 2015 rating decision relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for residual hernia surgical scar as well as a right ear condition and raises a reasonable possibility of substantiating the claims. 3. Evidence received since the final April 2015 rating decision does not relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for a low back condition, right and left knee conditions, and a hernia surgery residual condition other than surgical scars, and does not raise a reasonable possibility of substantiating the claims. 4. The preponderance of the evidence supports a determination that the Veteran has right ear SNHL that is attributable to his exposure to noise while in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for hernia surgery residual scars may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received, and the claim of service connection for a right ear condition may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a low back condition has not been received, and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a right knee condition has not been received, and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left knee condition has not been received, and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a hernia surgery residual condition other than surgical scars has not been received, and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for right ear SNHL have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1960 to November 1963. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for hernia surgery residuals as one for a hernia surgery residual condition other than surgical scars. In an April 2021 correspondence the Veteran's representative asserted that the evidence of record supported a determination that service connection was warranted for bilateral hearing loss. The Board highlights that the Veteran's request to reopen his previously denied claim of entitlement to service connection for an ear condition was restricted only to his right ear; as such, the Board construes the April 2021 correspondence as a new claim seeking entitlement to service connection for left ear hearing loss. As this claim has not been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over the claim, and it is referred to the AOJ for it to make this initial adjudication. REOPENING PREVIOUSLY DENIED CLAIMS Final decisions may only be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New evidence" is defined as existing evidence not previously submitted to agency decision makers; "material evidence" is defined as 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 most recent 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). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Court stated in Shade, when making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should consider whether the evidence could, if the claim was reopened, reasonably result in substantiation of the claim, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. An April 30, 2015 rating decision denied claims of entitlement to service connection for a bilateral knee condition, back condition, ear condition, and residuals of hernia operation with scar. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decisions. Thus, the April 2015 rating decision became final by operation of law, except that the claims may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. 1. Hernia Surgery Residual Scars The AOJ denied the Veteran's claim of entitlement to service connection for residuals of hernia surgery with scars in an April 2015 rating decision. In support thereof, the AOJ referred to a March 2015 VA scars examination, during which the chosen VA examiner found no evidence of visible hernia surgery scars. Since the April 2015 rating decision, a review of available VA medical records shows that the Veteran has consistently been evaluated as having abdominal scars related to a previous surgery. As this is new evidence that goes to an unestablished element of the claim, namely, that the Veteran may have residual scars related to an in-service hernia surgery, the Veteran's request to reopen the hernia surgery residual scar claim is granted. The issue of entitlement to service connection for the condition is addressed in the Remand section below. 2. Right Ear Condition The AOJ denied the Veteran's claim of entitlement to service connection for an ear condition in an April 2015 rating decision. In support thereof, the AOJ noted that the Veteran did not undergo any treatment for an ear condition in service or at any point after his discharge from service. Since the April 2015 rating decision, the Veteran has undergone two VA audiology examinations, first in November 2017 and again in April 2021. Both examinations reflect that the Veteran has diagnosable bilateral sensorineural hearing loss (SNHL) for VA compensation purposes. Furthermore, on both examinations the chosen VA examiner set forth positive etiology opinions for both right and left SNHL. As this is new evidence that goes to an unestablished element of the claim, namely, that the Veteran has a right ear condition (hearing loss) that may be related to service, the Veteran's request to reopen the right ear condition claim is granted. The issue of entitlement to service connection for the condition is addressed below. 3. Low Back Condition The AOJ denied the Veteran's claim of entitlement to service connection for a back condition in the April 2015 rating decision. The basis for the denial was that the evidence did not establish a nexus between the Veteran's service and any diagnosable back condition. In denying the Veteran's claim, the AOJ highlighted the lack of treatment for symptoms of a back condition in service as well as in the year following his discharge in 1963. Since the April 2015 rating decision, VA medical records show that the Veteran has been diagnosed with arthropathy of the lumbar facet joint, a diagnosis that he did not have at the time of the April 2015 rating decision. However, while this evidence is considered new, it is not material to the ultimate determination as to whether service connection is warranted. Even though the Board acknowledges that the Veteran has a current diagnosis of a low back condition that accounts for his documented low back pain, this does not trigger VA's duty to assist the Veteran by affording him a VA examination to evaluate his claim as it does not suggest in any way that the diagnosed back condition is attributable to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As stated, there is no evidence in the record that the Veteran received any treatment for low back symptomatology while in service, to include on his November 1963 separation examination and corresponding Report of Medical History. Furthermore, at no point in the Veteran's VA medical records has a VA treating physician ever attributed the Veteran's currently diagnosed low back condition to his service. The Veteran has also not set forth any new lay testimony or presented any new medical evidence in support of his claim; any contentions indicated in the record are cumulative of those already of record. In summation, the Board finds that there is insufficient evidence to suggest that the Veteran's diagnosed low back condition was incurred in or is otherwise attributable to service, and therefore the request to reopen the claim is denied. 4. Right and Left Knee Conditions The AOJ denied the Veteran's claim of entitlement to service connection for right and left knee conditions in the April 2015 rating decision. The basis for the denial was that the evidence did not establish a nexus between the Veteran's service and any diagnosable knee condition. In denying the Veteran's claim, the AOJ highlighted the lack of treatment for symptoms of right or left knee conditions in service as well as in the year following his discharge in 1963. In reviewing whether either the right or left knee condition claims warrants reopening, the Board will consider both claims together as the evidence in support of both is largely identical. Since the April 2015 rating decision, VA medical records show that the Veteran has continued to have an active diagnosis of bilateral osteoarthritis of the knees, which is the same diagnosis that he had at the time of the April 2015 rating decision. Therefore, despite the fact that there are copious new VA medical records in the file that were not available in April 2015, these records are not material to the ultimate determination as to whether service connection is warranted. Once again, despite the Veteran's current diagnosis of right and left knee conditions, this does not trigger VA's duty to assist the Veteran by affording him a VA examination to evaluate his claim as it does not suggest in any way that the diagnosed knee conditions are attributable to service. McLendon, supra. As stated, there is no evidence in the record that the Veteran received any treatment for knee symptomatology while in service, to include on his November 1963 separation examination and corresponding Report of Medical History. Furthermore, at no point in the Veteran's VA medical records has a VA treating physician ever attributed the Veteran's currently diagnosed right and/or left knee condition to his service. The Veteran has also not set forth any new lay testimony or presented any new medical evidence in support of his claim; any contentions indicated in the record are cumulative of those already of record. In summation, the Board finds that there is insufficient evidence to suggest that the Veteran's diagnosed right and/or left knee condition was incurred in or is otherwise attributable to service, and therefore the requests to reopen both claims are denied. 5. Hernia Surgery Residual Condition other than Scars The AOJ denied the Veteran's claim of entitlement to service connection for residual of a hernia operation with scar in the April 2015 rating decision. Although the AOJ acknowledged that the Veteran underwent a documented hernia surgery in service, ultimately the evidence did not establish that the Veteran developed a chronic condition as a result of the hernia surgery in service. Furthermore, the AOJ also found that the Veteran did not have an active diagnosis of a disability which could be attributed to the hernia surgery residuals. In setting forth this determination, the AOJ relied on a March 2015 VA hernia examination, wherein the chosen VA examiner declined to endorse a diagnosis of an active hernia surgery residual condition. Since the April 2015 rating decision, no new evidence has been added to the claims which would suggest that the Veteran has a chronic disability which is a residual of his in-service hernia surgery. The Board's own review of the available service medical records corroborates the AOJ's determination that the Veteran did not develop a chronic condition as a result of the hernia surgery in service. Indeed, although a history of hernia surgery is noted on the November 1963 discharge examination as a means to account for the Veteran's abdominal scarring, no other abnormalities are listed on that discharge examination, and the Veteran himself also did not report experiencing any symptomatology that would be considered a residual of in-service hernia surgery on the corresponding November 1963 Report of Medical History. The Board also highlights the findings of the March 2015 VA examiner, who concluded that there were no residual conditions of the in-service hernia surgery to base a service connection claim upon. In arriving at this determination, the VA examiner noted that the Veteran himself did not report experiencing any complications in service from the hernia surgery. Furthermore, the VA examiner performed an in-person evaluation of the Veteran and found no evidence of a current diagnosable condition that could be attributable to the Veteran's service, to include his in-service hernia surgery. As the examiner thoroughly reviewed the claims file and supported their findings by relying on the Veteran's medical history as well as an in-person evaluation, the Board finds the conclusions of the March 2015 VA examiner to be highly probative as to the ultimate determination of whether service-connection is warranted for a hernia surgery residual condition. Sklar v. Brown, 5 Vet. App. 140 (1993). VA medical records do not show that in the time since the April 2015 rating decision the Veteran has ever been diagnosed with a condition that may be attributable to his in-service hernia surgery. As reflected above, the Board has separated out the Veteran's claim seeking service connection for hernia surgical scars, as there is evidence which suggests that the Veteran has such scars. However, there is no evidence to suggest that the Veteran has a disability which is a residual of his in-service hernia surgery that is distinct from those scars. The Veteran has also not set forth any new lay testimony or presented any new medical evidence in support of his claim; any contentions indicated in the record are cumulative of those already of record. In summation, the Board finds that there is insufficient evidence to suggest that the Veteran has a diagnosable hernia surgery residual condition distinct from possible surgical scars that was incurred in or is otherwise attributable to service, and therefore the request to reopen this claim is denied. Entitlement to Service Connection for Right Ear SNHL The Veteran contends generally that he has a right ear condition that is attributable to service. Constructed liberally, this contention includes a claim of entitlement to service connection for right ear hearing loss. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A review of the two available VA audiology examinations of record dated in November 2017 and in April 2021, respectively, demonstrate that the Veteran has met the conditions for a grant of service connection for his right ear hearing loss. At the outset, it is noted that, pursuant to VA regulation, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Without detailing the results of audiometric testing on both VA audiology examinations of record, the Board notes that the Veteran clearly meets the auditory threshold and speech recognition score criteria for his right ear. Thus, a current right ear hearing loss disability is shown by the evidence. A review of available personnel records reflects that the Veteran's military occupational specialty (MOS) was a gunner's mate, which entails a high likelihood for hazardous noise exposure. Both the November 2017 and April 2021 VA examiner's concluded as much, and furthermore these examiners detailed that the Veteran reported shooting firearms frequently in service while using hearing protection only sparingly. On this basis, the Board concludes that the Veteran was exposed to hazardous levels of noise while in service, and thus the second criteria for establishing service-connection has been met. With regards to the question of whether there exists a nexus between the Veteran's conceded in-service hazardous noise exposure and his current right ear hearing loss disability, the Board highlights that both the November 2017 and April 2021 VA examiners set forth positive etiology opinions finding that it was at least as likely as not that the Veteran's diagnosed right ear SNHL was attributable to service. Specifically, the November 2017 examiner noted the lack of in-service audiometric testing results to review, but still found it to be at least as likely as not that the Veteran's conceded exposure to hazardous noise in service contributed to his development of right ear SNHL. Similarly, the April 2021 examiner stated that although there was no record of in-service hearing thresholds, the Veteran's MOS had a high probability of hazardous noise exposure which made it at least as likely as not that the current right ear SNHL was attributable to that hazardous noise exposure. Accordingly, on the basis of these two positive etiology opinions, the Board finds that the third element of service connection has been met and so service connection for right ear SNHL is granted. REASONS FOR REMAND Entitlement to Service Connection for Hernia Surgery Residual Scars is Remanded. As stated above, the Veteran's service medical records indicate that he had a hernia scar upon separation from service in November 1963. According to the Veteran, he underwent left inguinal hernia surgery prior to leaving service. Furthermore, the Board's review of available post-service VA medical records indicates that the Veteran has been evaluated as having residual surgery scars on his abdomen. However, those records also indicate that the Veteran underwent additional hernia surgeries as well as a hemicolectomy for diverticulitis after service. Thus, the Board cannot conclude that the noted residual surgery scars are associated with the Veteran's in-service hernia surgery. As such, remand is necessary for a new VA scar examination to evaluate the Veteran's documented abdominal scars and determine whether they are a residual of the Veteran's in-service hernia surgery. The matters are REMANDED for the following action: Schedule the Veteran for a VA medical examination to address the nature and etiology of his claimed hernia surgery residual scars. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history. All necessary special studies or tests must be accomplished. The examiner must first determine whether the Veteran has any scarring that reflects a prior history of surgery for inguinal hernia repair. If such scarring is shown on examination, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any documented scars are related to the Veteran's active service. The examiner should consider, and discuss as necessary, the documentation on the Veteran's November 1963 separation examination of a hernia scar. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 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. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.