Citation Nr: 22016408 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-38 407 DATE: March 22, 2022 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In a February 1976 rating decision, the RO denied service connection for residuals of a back injury. Although he was notified of the RO's decision and his appellate rights in a March 1976 rating decision, the Veteran did not perfect an appeal nor was new and material evidence received within one year of notification of the decision. 2. The evidence associated with the record since the final February 1976 rating decision is not cumulative or redundant of evidence previously considered and, when the credibility of the evidence is presumed, it raises a reasonable possibility of substantiating the claim of service connection for a back disability. CONCLUSIONS OF LAW 1. The February 1976 rating decision denying service connection for residuals of a back injury is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975) 2. New and material evidence to reopen the claim of service connection for back disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been received to reopen a previously denied claim of service connection for residuals of a back injury and which denied service connection for bilateral hearing loss. In May 2018, the Veteran submitted a notice of disagreement (NOD) with the denial of service connection for bilateral hearing loss. In August 2018, the RO issued a Statement of the Case (SOC) addressing the issue. Although the Veteran's substantive appeal, VA Form 9, was not received by VA until July 2019, the RO nonetheless accepted the appeal and certified it to the Board. Thus, the Board finds that VA has waived the filing of a timely substantive appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (discussing actions which may constitute a waiver of the requirement for filing a timely substantive appeal). In May 2018, the Veteran submitted an NOD with the denial of service connection for a back disability. Following the issuance of Statements of the Case in June 2019, the Veteran perfected an appeal via his submission of a timely VA Form 9 in June 2019. In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for back disability. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The Veteran's service treatment records show that in February 1975, he sustained trauma to his back in a motorcycle accident. He was admitted for observation. Examination the following day showed back pain and tightness at L4 with pain radiating to the sides. He was noted to have limited but improving range of motion. Subsequent service treatment records show continued complaints of low back pain. Diagnoses included persistent strain. In March 1975, the Veteran sought emergency treatment for continued low back pain which had been present since the motorcycle accident. He reported that nothing helped the pain, which radiated to the right knee. He also had paresthesias in the right knee but no weakness in legs. Straight leg raise test was to 90 degrees and sensation was fully intact. The impression was persistent muscle strain-resolving. At his May 1975 separation examination, the spine was normal on clinical evaluation. In January 1976, the Veteran submitted an application for VA compensation benefits, seeking service connection for a back disability. In a February 1976 rating decision, the RO denied the claim, finding that the evidence showed that the in-service injury resolved and that there was no current disability given the normal May 1975 separation examination. In reaching its decision, the RO considered the Veteran's service treatment records but no other evidence. The record on appeal shows that the Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the February 1976 rating decision. The Veteran does not contend otherwise. Thus, the February 1976 rating decision is final and not subject to revision on the same factual basis. In this appeal, the Veteran seeks to reopen his claim of service connection for a back disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final February 1976 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. Since the final February 1976 rating decision, the evidence associated with the record includes VA clinical records documenting complaints of low back pain. See e.g. April 14, 2019, and July 24, 2019, treatment records. He was also afforded a VA medical examination in March 2018 which resulted in a diagnosis of degenerative arthritis of the spine. The evidence also includes private clinical records which include an October 2017 CT scan report showing severe loss of intervertebral disc height at L4-5. In addition to this clinical evidence, the evidence associated with the record since the February 1976 rating decision includes the Veteran's October 2021 Board hearing testimony to the effect that he has experienced low back pain since his in-service motorcycle accident. The Board finds that the clinical evidence and the Veteran's hearing testimony directly address unestablished facts necessary to substantiate the claim of service connection for a back disability, particularly a current disability and causation. When presumed credible pursuant to Justus, this evidence raises a reasonable possibility of substantiating the claim and triggers VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. Shade, 24 Vet. App. at 117. REASONS FOR REMAND 1. Service connection for back disability In connection with his claim, the Veteran underwent a VA examination in March 2018. The examiner diagnosed degenerative arthritis of the spine, as shown by x-ray during the examination. The examiner concluded that it was less likely than not that the current disability was the result of the in-service motorcycle accident because X-rays performed during active duty were normal, the Veteran's spine was determined to be normal at the May 1975 separation exam, and there was no evidence of "chronicity of care." The Board finds that the VA examination is inadequate. In that regard, the examiner failed to address the significance of the October 2017 CT scan report showing severe loss of intervertebral disc height at L4-5. In addition, the examiner appeared to base his opinion on the lack of evidence of continuity of treatment. The U.S. Court of Appeals for Veterans Claims (Court), however, has held that a medical opinion which relies upon the absence of post-service medical treatment is inadequate. Rather, the continuity of symptoms, not treatment or care, is the salient issue in establishing chronicity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). While the Board regrets further delay, remand is required for an adequate medical opinion. 2. Service connection for bilateral hearing loss is remanded. The Veteran contends that his hearing loss was incurred in service and has continued since. Specifically, he alleges that his bilateral hearing loss is related to his service due to his MOS and his exposure to loud noises. The Veteran also noted a specific incident of acoustic trauma in late 1973 while near an explosion of a shell in a gun turret. The Veteran's STRs contain no audiometric findings. At his May 1975 separation examination, whispered and spoken voice tests were conducted and showed hearing acuity of 15/15 bilaterally. In connection with his claim, the Veteran was afforded a VA medical examination in March 2018. Audiometric testing revealed the presence of a current hearing loss disability which meets the criteria set forth in 38 C.F.R. § 3.385. The examiner, however, concluded that it was less likely than not that the Veteran's current hearing loss was incurred in service, to include as the result of acoustic trauma. The examiner noted that service treatment records did not document the presence of hearing loss and that the Veteran had reported significant occupational noise exposure post-separation. Since that examination, however, the Veteran provided testimony to the effect that he developed decreased hearing acuity after noise exposure while on active duty which persisted after separation. Given this testimony, the Board finds that an addendum medical opinion is required. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records, if available, since July 2019. 2. Afford the Veteran a VA examination in order to determine the nature and etiology of his current bilateral hearing loss. After examining the Veteran and the record, the examiner should provide an opinion as to whether it is approximately at least as likely as not that the Veteran's current hearing loss is causally related to his in-service noise exposure. In providing the opinion, the examiner should consider the relevant evidence of record, to include the Veteran's October 2021 hearing testimony regarding in-service decreased hearing acuity after noise exposure which continued after service. The examiner should consider the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported noise exposure and symptoms in service and thereafter represented the onset of his current hearing loss disability, this should be noted. Stated another way, do the Veteran's reports about his noise exposure and symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Afford the Veteran a VA examination in order to determine the nature and etiology of his current back disability. After examining the Veteran and the record, the examiner should provide an opinion as to whether it is approximately at least as likely as not that the Veteran's current back disability is causally related to his in-service 1975 motorcycle accident? (Continued on the next page) In providing the requested opinion, the examiner should consider the relevant evidence of record, including the service treatment records and the October 2017 CT scan report showing severe loss of intervertebral disc height at L4-5. The examiner should also consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's injury and symptoms in service and thereafter represented the onset of his current spine disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.