Citation Nr: 22012242 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 19-18 693 DATE: March 3, 2022 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the Veteran's claim for entitlement to service connection for a bilateral knee disability is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. In a February 2002 rating decision, the RO denied service connection for bilateral hearing loss and bilateral knee disability. The Veteran did not appeal that decision and it became final. 2. Evidence added to the record since the February 2002 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of service connection for bilateral hearing loss and a bilateral knee disability CONCLUSION OF LAW New and material evidence has been received since the February 2002 rating decision denying entitlement to service connection for bilateral hearing loss and bilateral knee disability; the criteria for reopening these claims have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to May 1966. This matter is before the Board of Veterans' Appeal (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans' Law Judge in October 2021. A transcript of the hearing is in the Veteran's file. New Material Evidence 1. Whether new material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disability. The Veteran is seeking to reopen his claims for bilateral hearing loss and a bilateral knee disability. The Board will discuss the reopening of the claims of bilateral hearing loss and tinnitus together because they arise from the same facts and circumstances, as they relate to the issue as to whether new material evidence was received. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). The RO initially denied the Veteran's claims for service connection for bilateral hearing loss and ta bilateral knee disability in a February 2002 rating decision on the basis that the Veteran's hearing loss and bilateral knee disability were not found to be related to his active-duty service. These denials of service connection became final, as the Veteran did not initiate an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Board must now determine whether new and material evidence has been submitted since the February 2002 rating decision sufficient for the reopening of the Veteran's claims. The Veteran testified to the etiology of his bilateral hearing loss and bilateral knee disability at the October 2021 Board hearing. This evidence is new as it was not of record at the time of the previous final denials; it is material, as it speaks to the reason for the previous final denials. The claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking service connection for bilateral hearing loss. He contends that his current bilateral hearing loss is related to in-service hazardous noise exposure. Specifically, the Veteran contends he was exposed to hazardous at the rifle and grenade ranges during basic training and gunfire while stationed in the Dominican Republic. To this point, the Veteran has not been afforded a VA examination to determine the etiology of his claimed bilateral hearing loos. Considering the Veteran's statements regarding in-service hazardous noise exposure, a VA examination addressing the nature and etiology of the Veteran's bilateral hearing loss is needed. 2. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran is also seeking service connection for a bilateral knee disability. The Veteran contends that his bilateral knee disability is proximately due to or caused by his service-connected right ankle disability. To that end, the Veteran was afforded a December 2017 VA examination to determine the nature and etiology of his bilateral knee disability. The VA examiner opined that is less likely than not that the Veteran's bilateral knee disability is secondary to his service-connected bilateral ankle disability. The VA examiner found that the Veteran's post-service occupation and recreational activities contributed to the Veteran's bilateral knee disability. However, the VA examiner did not address whether the Veteran's service-connected right ankle disability aggravates the Veteran's current bilateral disability. As such, the Board find further medical guidance is needed to address the question of aggravation. The record indicates that the Veteran receives Social Security Administration (SSA) benefits. The Veteran presented testimony at this October 2021 Board hearing, in which the Veteran stated that he is receipt of SSA disability benefits. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from SSA. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). A remand is necessary to obtain the Veteran's complete SSA record, including any administrative decisions on his application for SSA disability benefits, disability determinations and all underlying medical records. The matters are REMANDED for the following actions: 1. Contact SSA and request records pertinent to the Veteran's claim for SSA disability benefits, to include administrative decisions, medical records and disability determinations. All efforts to obtain the records should be documented; a negative response should be received if the requested records are not available. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and possible relationship to service of his claimed bilateral hearing loss. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must determine whether the Veteran currently suffers from bilateral hearing loss for VA purposes, and, if so, whether that hearing loss is related to his active service. The VA examiner must consider the Veteran's contentions that she was exposed to hazardous noise during her active-duty service. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and possible relationship to his service-connected right ankle disability of his claimed bilateral knee disability. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. (a) Provide diagnoses for all current bilateral knee disabilities, to include those noted during the appeal period. (b) State whether any diagnosed bilateral knee disabilities are proximately due to, the result of, or aggravated by his service-connected right ankle disability. The VA examiner is must specifically address the Veteran's contentions that his service-connected right ankle aggravated or aggravates his claimed bilateral knee disability. (Continued on next page) The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.