Citation Nr: 21030209 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-49 592 DATE: May 18, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for bilateral hearing loss, is granted. New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for tinnitus, is granted. New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for a right hip disability, is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right wrist disability is remanded Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for a fibromyalgia is remanded. Entitlement to service connection for a traumatic brain injury is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. An August 2013 rating decision, in part, denied service connection for a bilateral hearing loss, tinnitus, and a right hip disability; the Veteran did not appeal these denials in a timely manner, and no new and material evidence was received within the appeal period as to these issues. 2. Evidence received since the August 2013 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claims for service connection bilateral hearing loss, tinnitus, and a right hip disability, and raises a reasonable possibility of substantiating these claims. 3. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to active service. 4. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The August 2013 rating decision, in part, denied for service connection for bilateral hearing loss, tinnitus, and a right hip disability, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claims for service connection for bilateral hearing loss, tinnitus, and a right hip disability, has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 20.1105. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1980 to April 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal of May 2017 (all issues except migraine headaches) and July 2017 (migraine headaches) rating decisions issued by the Department of Veterans Affairs (VA). In October 2018, the Veteran appointed the California Department of Veterans Affairs as his representative. A January 2019 letter informed him that his appeal was being placed on the Board's docket and that he had 90 days from the date of that letter to request a change in representation. In July 2019, after the 90-day period had expired, the Veteran submitted a new power of attorney in favor of James Trieschmann. Also, in October 2019, he submitted a new power of attorney in favor of Disabled American Veterans, and in November 2019 he again submitted another power of attorney in favor of James Trieschmann. As these changes in representation were submitted over 90 days from the January 2019 notice letter, and as the Veteran has not submitted good cause for his change in representation, California Department of Veterans Affairs remains the representative in this appeal. 38 C.F.R. § 20.1304 (b). Further, in an April 2020 statement, the Veteran stated, in part, that he did not want James Trieschmann as his representative and that he wanted the California Department of Veterans Affairs to represent him and submitted a power of attorney, dated in April 2016, in favor of California Department of Veterans Affairs. The Board notes that California Department of Veterans Affairs has been afforded the opportunity to present arguments on appeal, to include in November 2018. Additionally, subsequent to the issuance of the September 2018 Statement of the Case, issued for the appeal herein, additional evidence developed by VA to include updated VA treatment records, was associated with the record. In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original (AOJ) consideration. Here, the Veteran's substantive appeal for this appeal was filed after February 2, 2013, specifically in October 2018, but as described above, the record contains additional evidence developed by VA. However, in a statement received in February 2021, the Veteran waived review by the AOJ of the additional evidence. Thus, Board may proceed with appellate review. New and Material Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disability In December 2011, the Veteran, in part, filed an original claim for service connection for hearing loss, tinnitus and a right hip disability. An August 2013 rating decision, in part, denied the claims for hearing loss, tinnitus and a right hip disability. The August 2013 rating decision denied the entitlement to service connection for hearing loss and tinnitus as the evidence did not show an event, disease, or injury in service and as the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for these conditions. The August 2013 rating decision also denied entitlement to service connection for a right hip disability as the evidence did not show a current diagnosed disability. The Veteran was notified of the decision later the same month. The Veteran did not appeal the denial of these claims and no new and material evidence was received within the appeal period. In this regard, an September 2013 homeless call center referral note was constructively received within the appeal period of the August 2013 rating decision but it is not relevant to these claims as it documented the Veteran reported he was living with his son and that he did not have income but did not address hearing loss, tinnitus and/or a right hip disability. Further, no additional evidence was associated with the record until August 2016, when an unsigned VA Form 28-1900, Disabled Veterans Application for Vocation Rehabilitation and a transcript were associated with the record. Moreover, neither the Veteran nor his representative have argued the August 2013 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348, 1353 (Fed. Cir. 2020). The record also reflects that the Veteran's service records were associated with the record in February 2017 in several batches. However, one batch of these service records, with receipt date in February 2017, contains a March 2012 Personnel Information Exchange System (PIES) response to a request for service treatment records. This March 2012 PIES response reported that all available requested records were mailed. A February 2017 PIES response, to a request for service treatment records and the entire personnel file, also reflected that all available requested records were shipped. Thus, these PIES responses documented the Veteran's service treatment records were originally obtained in 2012 and again in 2017 along with service personnel records. Also, review of the Veterans Benefits Management System reflects the entirety Veteran's service records were uploaded in February 2017, and thus this date such appears to be associated with the scanning date, including of the Veteran's service treatment records, rather than date of original receipt date of his service treatment records. Indeed, the August 2013 rating decision explicitly referenced review of the Veteran's service treatment records and his form DD-214. Further, the Veteran's service records merely contained facts that were never in question, and do not relate to hearing loss, or tinnitus, or a nexus linking these disabilities to the Veteran's military service. Specifically, the Veteran's DD-214 listed his MOS as apprentice aerospace group equipment mechanic, which provides evidence of the type of noise he would have experienced during service. The Federal Circuit has accepted that the term "relevant official service department record" in 38 C.F.R. § 3.156(c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). Thus, to the extent service records were not reviewed in conjunction with the prior denial in the August 2013 rating decision, the Board finds that the provisions of 38 C.F.R. § 3.156(c) are inapplicable as to these claims. Thus, the August 2013 rating decision, which, in part, denied claims of service connection for hearing loss, tinnitus, and a right hip disability, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In January 2017, the Veteran filed an application, in part, to reopen the claims of entitlement to service connection for hearing loss, tinnitus and a right hip disability. A May 2017 rating decision implicitly reopened the claims but denied the claims on the merits and the Veteran's appeal of these denials forms the basis of the present appeal as to these claims. New evidence added to the record since the August 2013 rating decision, includes a March 2017 hearing loss and tinnitus disability benefits questionnaire (DBQ) and a July 2019 private examiner's opinion. Specifically, the July 2019 private examiner found the Veteran's current auditory condition, to include bilateral tinnitus, was at least as likely as not due to and/or related military acoustic trauma during active duty military service. As noted above, the August 2013 rating decision denied the claims of entitlement to service connection for hearing loss and tinnitus as the evidence did not show an event, disease, or injury in service and the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for these conditions. Thus, as the July 2019 private opinion linked in-service acoustic trauma to the Veteran's current auditory condition, it relates to an unestablished fact necessary to substantiate the claims for bilateral hearing loss and tinnitus, and it raises a reasonable possibility of substantiating these claims. New evidence also includes a March 2017 hip and thigh conditions DBQ which endorsed a diagnosis of osteoarthritis of the right hip, and corresponding March 2017 imaging, which provided an impression of impression of moderate superior right hip joint space degenerative joint disease. As noted above, the August 2013 rating decision denied entitlement to service connection for a right hip disability as the evidence did not show a current diagnosed disability. Thus, as the March 2017 DBQ provided evidence of current disability, it relates to an unestablished fact necessary to substantiate the claim for a right hip disability, and it raises a reasonable possibility of substantiating the claim. Accordingly, the claims for service connection for hearing loss, tinnitus and a right hip disability are reopened. The appeals, to this extent, are granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 4. Entitlement to service connection for bilateral hearing loss 5. Entitlement to service connection for tinnitus The Veteran contends that service connection for bilateral hearing loss and tinnitus is warranted. Specifically, in a May 2018 notice of disagreement, the Veteran reported, during service, he had exposure to extremely loud jet engines. In an August 2019 statement, the Veteran reported his military occupation specialty (MOS) was an aerospace ground equipment specialist and that he had varying levels of acoustic trauma, to include from cargo planes, jets, passenger planes, communication headsets, generators, sirens, and that he worked in loud environments, like an airplane hangar, flight line and flight deck. The question for the Board is whether the Veteran has a current disability of bilateral hearing loss and/or tinnitus that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether he has tinnitus which is otherwise shown to be etiologically related to an in-service injury, event, or disease. In this regard, the existence of a present disability for bilateral hearing loss and tinnitus was established in a March 2017 hearing loss and tinnitus DBQ produced during the course of this appeal. The March 2017 hearing loss and tinnitus DBQ contained audiometric testing which revealed that the Veteran has a hearing loss disability for VA purposes for each ear. 38 C.F.R. § 3.385. In addition, the March 2017 hearing loss and tinnitus DBQ also documented the Veteran reported recurrent tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). These findings are consistent with the Veteran's VA treatment records, such as a July 2018 record, which documented, in part, bilateral sensorineural loss and tinnitus as well as the July 2019 private examiner's diagnosis of tinnitus. Thus, the current disability element for bilateral hearing loss and tinnitus are established by the evidence. Thus, the question becomes whether these current disabilities are related to service. The evidence against the claim includes a March 2017 VA examiner's opinion. The March 2017 VA examiner found the Veteran's hearing loss and tinnitus were each not likely as not caused by or a result of an event in military service. As to the Veteran's right and left hearing loss, the March 2017 VA examiner explained the Veteran reported his hearing loss was likely due to a fall that occurred in 1980 but that the audiogram from 1981 showed normal hearing with no report of tinnitus. Similarly, as to the Veteran's tinnitus, the March 2017 VA examiner explained the Veteran's separation audiogram showed no significant threshold shifts or documented complaints for tinnitus. However, the lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The evidence in favor of the claim includes a July 2019 private examiner's opinion. The July 2019 private examiner found the Veteran's current auditory condition, to include bilateral tinnitus, was at least as likely as not due to and/or related to military acoustic trauma during active duty military service. As a rationale, the July 2019 private examiner explained, in part, that the current medical literature stated that many people suffering from tinnitus present without typical cochlear damage, and thus, exhibit normal parameters on audiograms. The examiner noted that the Veteran was exposed to noise in service due to his military occupation specialty. Further, the July 2019 private examiner provided a rationale which accounted for the lack of documentation of hearing loss in the Veteran's service treatment records. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are related to active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right hand disability is remanded. 2. Entitlement to service connection for a left hand disability is remanded. 3. Entitlement to service connection for a right wrist disability is remanded. 4. Entitlement to service connection for a left wrist disability is remanded. 5. Entitlement to service connection for a right ankle disability is remanded. 6. Entitlement to service connection for a left ankle disability is remanded. 7. Entitlement to service connection for bilateral foot disability is remanded. 8. Entitlement to service connection fibromyalgia is remanded. 9. Entitlement to service connection for a traumatic brain injury is remanded. 10. Entitlement to service connection for sleep apnea is remanded. 11. Entitlement to service connection for migraine headaches is remanded. 12. Entitlement to service connection for hypertension is remanded. VA is obligated to obtain relevant Social Security Administration records if there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). The Veteran's Social Security Administration records are not associated with the record nor does the record reflect an attempt has been made to obtain any such records with regard to disability benefits. The Board finds there is a reasonable possibility that any relevant existing Social Security Administration records may be relevant to the Veteran's above claims (and below claims), as during in a May 2020 statement, the Veteran reported, in part, he recently was awarded Social Security disability benefits due to the injuries he sustained during active service. Thus, upon remand, an attempt should be made to obtain any relevant Social Security Administration disability benefits records relevant to the claims on appeal. 13. Entitlement to service connection for a right hip disability is remanded. 14. Entitlement to service connection for a left hip disability is remanded. Besides the above remand for relevant records from the Social Security Administration for disability benefits, which is also relevant to these claims, remand is also warranted for an opinion on a secondary basis. Specifically, a May 2018 VA treatment record documented the Veteran reported his back pain was localized with right hip pain and worsened with walking. The same May 2018 VA treatment record also documented the Veteran had an antalgic gait. Findings that the Veteran had an altered gait due to his service-connected lumbar degenerative facet disease was also indicated in other clinical records. In this regard, a May 2017 VA treatment record diagnosed an abnormality of gait. Additionally, April 2020 and June 2020 a back conditions DBQs both documented the Veteran had guarding resulting in abnormal gait or abnormal spine contour. Thus, there is a suggestion that the Veteran's bilateral hip disability may be secondary to his service-connected lumbar degenerative facet disease. Accordingly, an opinion for bilateral hip disability as secondary to service-connected lumbar degenerative facet disease is warranted. 15. Entitlement to service connection for a right knee disability is remanded. 16. Entitlement to service connection for a left knee disability is remanded. Besides the above remand for relevant records from the Social Security Administration for disability benefits, which is also relevant to these claims, remand is also warranted for an opinion on a secondary basis. Specifically, in an April 2017 VA treatment record the Veteran reported during his first physical therapy session he was told that his sore low back and right hip problems caused him to overuse his left leg. As discussed above, clinical records provided an indication that the Veteran had an altered gait due to his service-connected lumbar degenerative facet disease. Thus, there is a suggestion that the Veteran's bilateral knee disability may be secondary to his service-connected lumbar degenerative facet disease. Accordingly, an opinion for bilateral knee disability as secondary to service-connected lumbar degenerative facet disease is warranted. The matters are REMANDED for the following actions: 1. Obtain and associate with the record all relevant records pertaining to the Veteran concerning a claim for disability benefits from the Social Security Administration, to include all evidence and copies of any disability determination. Document all requests for information as well as all responses in the claims file. 2. Obtain opinions from an appropriate clinician regarding the nature and etiology of the Veteran's bilateral hip disability and bilateral knee disability, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support each proffered opinion, to the following: (a.) Is it at least as likely as not that the Veteran has a right and/or left hip disability which is proximately due to service-connected lumbar degenerative facet disease? Please explain; (b.) Is it at least as likely as not that the Veteran has a right and/or left hip disability which is aggravated (any increase in disability) by service-connected lumbar degenerative facet disease? Please explain; (c.) Is it at least as likely as not that the Veteran has a right and/or left knee disability which is proximately due to service-connected lumbar degenerative facet disease? Please explain; (d.) Is it at least as likely as not that the Veteran has a right and/or left knee disability which is aggravated (any increase in disability) by service-connected lumbar degenerative facet disease? Please explain. 3. After undertaking any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them appropriate opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.