Citation Nr: 21039771 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-58 186 DATE: July 1, 2021 ORDER 1. The appeal to reopen a claim of service connection for a right ankle disability is granted. 2. Entitlement to service connection for bilateral hearing loss is denied. REMANDED 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for right hip disability is remanded. 6. Entitlement to service connection for left knee disability is remanded. 7. Entitlement to service connection for right knee disability is remanded. 8. Entitlement to service connection for left ankle disability is remanded. 9. Entitlement to service connection for right ankle disability is remanded. 10. Entitlement to service connection for a migraine headache disability is remanded. 11. Entitlement to service connection for a vision disability is remanded. 12. Entitlement to service connection for diabetes is remanded. FINDINGS OF FACT 1. An unappealed February 2000 rating decision denied service connection for a right ankle disability, finding that such disability was not shown. 2. Evidence received since the February 2000 shows right ankle pain with functional loss; relates to an unestablished fact necessary to substantiate a claim of service connection for a right ankle disability; and raises a reasonable possibility of substantiating the claim. 3. The Veteran is not shown to have (or during the pendency of this claim to have had) a hearing loss disability of either ear. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a right ankle disability may be reopened. 38 U.S.C. § § 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1996 to May 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal of an April 2016 Department of Veterans Affairs (VA) rating decision. In June 2020, a virtual hearing was held before the undersigned; a transcript is in the record. 1. The appeal to reopen a claim of service connection for a right ankle disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening". See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed February 2000 rating decision denied the Veteran service connection for a right ankle disability, finding that such disability was not shown. The Veteran did not submit new and material evidence within the following year, and the decision became final. New and material evidence to reopen the claim is required before it may be considered de novo. 38 U.S.C. § § 7105, 5108. Because service connection was previously denied on the basis that a right ankle disability was not shown, for evidence to relate to an unestablished fact necessary to substantiate the claim, and be new and material, it would have to tend to show that the Veteran has a right ankle disability that may be related to service. Evidence received since the February 2000 rating decision includes a January 2016 VA ankle examination report. While the examiner did not diagnose a formal right ankle disability, it was noted that the Veteran reported pain with functional loss. Pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, such evidence bears directly on a basis for the prior denial of the claim; pertains to an unestablished fact necessary to substantiate the claim; and, considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since the February 2000 rating decision is both new and material and that the claim of service connection for a right ankle disability may be reopened. 2. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all 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 the claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 55 The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was rifleman. It is not in dispute that in his MOS he was exposed to considerable noise during his active duty service. What remains necessary to substantiate this claim is competent evidence that he has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and that it is etiologically related to his service. On January 2016 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 20 25 20 20 25 Left 20 20 25 15 25 Speech audiometry revealed speech recognition ability of 96 percent in each ear. On August 2017 VA audiological examination audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 15 20 20 15 20 Left 15 20 20 20 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left. At the June 2020 hearing, the Veteran testified he has not undergone any hearing tests since the August 2017 VA examination that showed normal hearing. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether the Veteran has the disability for which service connection is sought, i.e., a hearing loss disability in either (or both) ear(s). Because a hearing loss disability is defined by regulation, to satisfy the threshold requirement the Veteran must show that during the pendency of the instant claim he was found (by audiometry in accordance with 38 C.F.R. § 4.85) to have a hearing impairment that meets that regulatory definition. The evidence of record does not show that the Veteran has been found to have a hearing loss disability in either ear at any time during the pendency of the instant claim. 38 U.S.C. §§ 1110, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). The Board acknowledges the Veteran's testimony at the June 2020 hearing (that he receives Social Security Administration (SSA) disability benefits). However, he has not identified any audiological testing (that may constructively of record) that would show that he now has a hearing loss disability (nor alleged that any such evidence exists, for VA to seek). As a hearing loss disability is not shown, the Veteran has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). REASONS FOR REMAND The Veteran testified at the June 2020 hearing that he receives SSA disability benefits. Any existing SSA records are constructively of record, and medical records considered in connection with an SSA disability determination may be pertinent evidence and must be sought. Additionally, it appears that the Veteran has received private treatment for his orthopedic conditions. At the June 2020 hearing, he testified that he was reviewing his private treatment records as he testified about his conditions. A review of the record found that the Agency of Original Jurisdiction (AOJ) has not sought treatment records from the reported providers or asked the Veteran to provide a completed VA Form 21-4142 authorizing VA to secure such records. Such records, if existing, are likely to contain pertinent information, and any such VA records are constructively of record; consequently the treatment records must be sought. 3. Entitlement to service connection for a back disability. The Veteran alleges he initially injured his back in boot camp and has experienced back pain, reduced range of motion, and difficulty standing since service. On January 2016 VA examination, lumbosacral sprain, intervertebral disc syndrome (IVDS), and bilateral lower extremity radiculopathy were diagnosed. The Veteran reported the back symptoms started in 1997 as burning pain, worsened since service, and that he underwent spinal fusion surgery in 2010. At the June 2020 hearing, he testified that he has seen multiple private doctors for his back since service and that a private orthopedist in July 2011 explained that his current back condition was service-related from compound fractures. The Veteran stated he has not yet submitted his private treatment record, and he was advised to do so. An addendum medical opinion (that considers the entire record and resolves any medical questions remaining) is necessary. 4. 5. Entitlement to service connection for left and right hip disabilities. The Veteran alleges that his hip disabilities are related to injuries he sustained while running during physical training in service. At the June 2020 hearing, he testified that he initially injured his hips in 1997, that the symptoms have continued since, and that bilateral hip arthritis was diagnosed in 2011. He testified his right hip has been replaced and that he was advised that the left hip will also need to be replaced. He has also not been afforded a VA examination in connection with these claims. Under the circumstances presented, the low threshold standard (for determining when an examination or medical opinion is necessary) is met. Accordingly, an examination to ascertain the nature and etiology of any right and/or left hip disabilities is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. 7. Entitlement to service connection for left and right knee disabilities. The Veteran alleges his knee disabilities are related to injuries sustained in service. His service treatment records (STRs) note multiple complaints of lower leg pain (to include knee pain and shin pain) and assessments of shin splints. See January 1996, July 1996, November 1996, and July 1997 clinical records. On January 2016 VA knee examination, the Veteran reported a knee condition began in 1996 with stressful running and excessive movements, and that related pain has worsened since service. Bilateral knee strain was diagnosed. The examiner indicated the Veteran has had shin splits, but opined that he has not had them since service. In the opinion against the claim, the examiner did not address the complaints of knee pain in service. The opinion is inadequate for rating purposes. On August 2017 VA knee examination (by another examiner), bilateral knee strain was diagnosed. The examiner noted the Veteran has had shin splints and described his current symptoms as shin pain on walking. In the opinion against the claim, the examiner does not provide an etiological opinion for the current shin disability. Additionally, while the examiner opines she was unable find records to substantiate ongoing chronic knee treatment, pertinent private treatment records appear to be outstanding, as discussed above. An addendum medical opinion (that considers the entire record -once it is compiled-and addresses any medical questions remaining) is necessary. 8. 9. Entitlement to service connection for left and right ankle disabilities. The Veteran alleges his ankle disabilities are related to injuries sustained in service. His STRs note multiple complaints of bilateral ankle pain and diagnoses of bilateral ankle sprains. Additionally, an August 1996 clinical record notes posterior tibial tendonitis was assessed. In a March 1998 separation examination report of medical history, he endorsed experiencing foot trouble, specifically in his right ankle since boot camp; the provider noted the right ankle was improving with NSAID and time. On January 2016 VA ankle examination, the Veteran reported pain and loss of function in his ankles. However, the examiner indicated there was no evidence of a left or right ankle disability. The examiner did not provide an opinion regarding the etiology of an ankle disability (noting there was no current diagnosis of such). Notably, diagnostic testing was not conducted; additionally, pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. §§ 1110 if it results in functional impairment of earning capacity. See Saunders, 886 F.3d 1356. An addendum examination to confirm whether or not there is a chronic ankle disability, and if so, ascertain its etiology (based on consideration of the entire record compiled) is necessary. 10. Entitlement to service connection for migraine headaches. On January 2016 VA headaches examination, migraines were diagnosed. In an April 2016 addendum VA medical opinion against the claim, the provider stated that STRs show a one-time treatment for headaches secondary to dehydration and there were no other encounters regarding headaches were found. A review of the record shows further complaints of headaches (as when the Veteran was recovering from pneumonia in 1996; see October 1996 clinical records). While the clinical record documenting headaches secondary to dehydration is undated, it appears that it occurred in 1997 (calculated based on the note the Veteran was 21 years old at the time of the visit and his birth year). Accordingly, the opinion appears to be based on an incomplete review of the record. Additionally, at the June 2020 hearing, the Veteran testified his migraine headaches started in 1997 when he fell out in the field and hit his head. He testified that he lost consciousness and was rushed to a hospital, where he received 8 stitches above his left eyebrow and a concussion was diagnosed. A January 1997 clinical record notes the Veteran returned to the clinic for the removal of sutures in his left eyebrow, which he had for 8 days; a healing laceration with sutures was assessed. While the record contains clinical notations from January 1997 documenting removal of sutures on the left eyebrow, it leaves unclear whether additional STRs are outstanding, particularly related to the incident that led to him needing 8 sutures to his eyebrow and whether he then lost consciousness. An exhaustive search for any outstanding STRs and, thereafter, development for an addendum medical opinion (that considers the entire record and resolves any medical questions remaining) are necessary. 11. Entitlement to service connection for a vision disability. At the June 2020 hearing, the Veteran asserted service connection for a vision disability is warranted as secondary to his migraine headaches. He testified that he started to experience blurry vision in his left eye preceding the onset of a migraine. On January 2016 VA headaches examination, the examiner noted non-headache symptoms associated with headaches include sensitivity to light and changes in vision. Whether a claimed eye disability is a separate disability entity from his migraine headache disability (which was caused or aggravated by headaches, so as to warrant secondary service connection) or is merely a manifestation of the migraine headaches (thus, not warranting a separate rating) is a medical question. See Jandreau, 492 F.3d at 1377. Because the claim of service connection for migraine headaches is being remanded, adjudication of this matter must be deferred pending resolution of the service connection for migraine headaches claim. 12. Entitlement to service connection for diabetes. At the Board hearing, the Veteran testified that borderline diabetes was diagnosed in service, escalated upon he separation from service, and a full-blown diabetes was diagnosed within years of separation from service. Because diabetes ia a chronic disease listed in 38 C.F.R. § 3.309 (a), service connection may be established by showing manifestation to a compensable degree within a year following separation from service (or by showing continuity). Records of the initial diagnosis and treatment may contain pertinent information, and must be sought. If records received suggest the Veteran's diabetes mellitus may be related to his service, an examination for a medical advisory opinion may be necessary. The matters are REMANDED for the following: 1. Arrange for exhaustive development to locate, and secure for the record, any outstanding STRs of the Veteran (particularly any relating to his January 1997 injury to his head). He should be asked to submit any STRs in his possession (if he does not submit any, the assumption being that he has none). The search should encompass all storage facilities where such records may have been retired (and any facilities where the records may have been transported for scanning into his electronic file). If any records are unavailable because they have been irretrievably lost or destroyed, it should be so certified (with the scope of the search described in detail), and the Veteran should be so notified. 2. Ask the Veteran to identify all providers of evaluations and treatment he has received for the disabilities remaining on appeal (and to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all private such evaluations and treatment), specifically including the earliest available postservice reports of evaluations or treatment he received for back, hip, knee, ankle, migraine, and diabetes disabilities. Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. 3. Obtain for the record from SSA a copy of their determination on the Veteran's claim for SSA disability benefits and the complete medical records considered in connection with such determination. If the records are unavailable, it should be so noted in the record with explanation (e.g., that the records were lost or destroyed). 4. After the development sought above is completed, arrange for an orthopedic examination of the Veteran to confirm the existence, and ascertain the likely etiology of his claimed back, left and right ankle, left and right knee, and left and right hip disabilities. The examiner must review the Veteran's claims file. On review of the record and examination of the Veteran, the examiner should: (a) Identify (by diagnosis) each back, ankle, knee, shin, and hip disability entity found/shown by the record. [The examiner should note (the rationale should address) that pain resulting in functional impairment of earning capacity may constitute a compensable disability.] (b) Identify the likely etiology for each back, ankle, knee, shin, and hip disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it began in (or is otherwise related to) the Veteran's military service and the documented (or reported, but undocumented) complaints or injuries therein? (c) If a diagnosed back, ankle, knee, shin, and/or hip disability is determined to be unrelated to service, identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting clinical data and medical principles. The rationale must acknowledge all related complaints noted in service and all related injuries in service reported (as well as any suggestion, in additional records received, of continuity of complaints since service). 5. Also, arrange for the Veteran to be an examined by an appropriate clinician(s) to confirm the existence and determine the nature and etiology of the claimed headache and vision disabilities. The examiner must review the Veteran's claims file. On review of the record and examination of the Veteran, the examiner should: (a) Identify (by diagnosis) any/each headache disability found, or shown by the record. (b) Regarding vision disability, indicate whether any found is a separate (from the migraine headaches) vision disability entity or merely a manifestation of the claimed migraine headache disability. (c) If reported vision symptoms are a separate disability entity, identify it by diagnosis, and identify its etiology. (d) Identify the likely etiology for any headache disability diagnosed. Is it at least as likely as not (a 50% or greater probability) that it began in (or is otherwise related to) the Veteran's military service, or is a distinct and separate disability from an underlying disability? (e) If a diagnosed headache disability is determined to be unrelated to service, identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include rationale with citation to factual data and medical principles. 6. Arrange for the Veteran to be examined by an appropriate physician to confirm the existence and determine the likely etiology of his claimed diabetes. On review of the record and examination of the Veteran, the examiner should respond to the following: (a) Does the Veteran have diabetes? (b) Identify the likely etiology for any diabetes diagnosed. Is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's service, was manifested to a compensable degree within a year following discharge from service, or was manifested continuously since service? (c) If a diagnosed diabetes is determined to not be related to the Veteran's service, identify the etiology for the diabetes that is considered to be more likely (with explanation why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.