Citation Nr: 22017525 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-49 142 DATE: March 25, 2022 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. Effective February 9, 2016, a separate 10 percent disability rating is granted for peripheral neuropathy in the femoral nerve of the left lower extremity. Effective February 9, 2016, a separate 10 percent disability rating is granted for peripheral neuropathy in the femoral nerve of the right lower extremity. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy in the sciatic nerve of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy in the sciatic nerve of the right lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy in the femoral nerve of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy in the femoral nerve of the right lower extremity is remanded. FINDINGS OF FACT 1. A July 2011 rating decision denied the issues of entitlement to service connection for bilateral hearing loss and tinnitus; the Veteran did not appeal the decision and no new and material evidence was associated with the claims file within a year of notification of the decision. 2. Evidence received since the July 2011 rating decision that denied service connection for bilateral hearing loss and tinnitus relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 3. In a September 2021 United States Court of Appeals for Veterans Claims Court order vacated and remanded the issue of entitlement to initial disability ratings in excess of 10 percent for peripheral neuropathy in the femoral nerve of the right lower extremity and in excess of 10 percent for peripheral neuropathy in the femoral nerve of the left lower extremity, pursuant to a September 2021 Joint Motion for Partial Remand; therefore, the Board's prior discontinuance is void. CONCLUSIONS OF LAW 1. A July 2011 rating decision, which denied service connection for bilateral hearing loss and tinnitus, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied the claims for entitlement to service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The criteria for entitlement to an initial 10 percent disability rating for peripheral neuropathy in the femoral nerve of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.6, 4.7, 4.124A, Diagnostic Code 8526. 4. The criteria for entitlement to an initial 10 percent disability rating for peripheral neuropathy in the femoral nerve of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.6, 4.7, 4.124A, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Appeals (VA) Regional Office (RO). As a matter of background, the Board previously denied reopening the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus in a January 2021 decision. The Board denied the Veteran's claims of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. The Board awarded the Veteran increased initial 20 percent disability ratings for service-connected peripheral neuropathy in the sciatic nerves of the bilateral lower extremities, each. Additionally, the Board discontinued separate 10 percent disability ratings for service-connected peripheral neuropathy in the femoral nerves of the bilateral lower extremities, each. The Veteran appealed the Board's January 2021 decision to the United States Court of Appeals for Veterans Claims (Court). A September 2021 Court order vacated and remanded the issues on appeal pursuant to a September 2021 Joint Motion for Partial Remand (JMPR). Specifically, the parties agreed that the Board failed to address relevant evidence regarding the Veteran's claims to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus and to assist the Veteran in obtaining additional private treatment records. As such, the issues on appeal have been returned to the Board for readjudication. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. 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). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Whether new and material evidence has been received to reopen a claim to entitlement to service connection for bilateral hearing loss. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus. By way of background, the Veteran initially sought service connection for bilateral hearing loss and tinnitus in June 2010. See June 2010 VA Form 21-526. In a July 2011 rating decision, the RO denied the Veteran's claims to entitlement to service connection for bilateral hearing loss and tinnitus based on a finding that there was no evidence to support a link between the Veteran's current hearing loss and in-service military noise exposure. The RO based its finding on a June 2011 VA examination that found the Veteran's bilateral hearing loss and tinnitus were less likely than not due to military noise exposure. The Veteran did not file a notice of disagreement and no new and military evidence was received within a year of notification of the decision. Therefore, the July 2011 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran subsequently submitted a claim to reopen in February 2016. In the April 2016 rating decision on appeal, the RO denied the Veteran's claim based on a finding that there was no new and material evidence received. As noted, the Board previously denied reopening the Veteran's claims to entitlement to service connection for bilateral hearing loss and tinnitus in a January 2021 decision. The Veteran appealed the Board's January 2021 decision to the Court. As noted, the parties agreed that the Board failed to address relevant evidence in determining no new and material evidence had been received to reopen the Veteran's claims. Specifically, the parties agreed that the Veteran submitted additional lay statements relating his bilateral hearing loss and tinnitus to exposure to "mortars...sometimes several feet away," that was not previously submitted. See February 2016 statement in support of claim. The Board finds relevant evidence associated with the claims file since the July 2011 rating decision, including the Veteran's lay statements relating his hearing conditions to close range mortars noise exposure in service, is new and material as they relate to an unestablished fact, evidence of a nexus, necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds new and material evidence has been received to reopen the Veteran's claim to entitlement to service connection for bilateral hearing loss and tinnitus. Effective February 9, 2016, a separate 10 percent disability rating is granted for peripheral neuropathy in the femoral nerve of the left lower extremity. Effective February 9, 2016, a separate 10 percent disability rating is granted for peripheral neuropathy in the femoral nerve of the right lower extremity. As a matter of history, the RO awarded the Veteran service connection for peripheral neuropathy in the femoral nerves of the left and right lower extremities, and assigned 10 percent disability ratings for each, effective February 9, 2016, the date of receipt of the Veteran's claim. In June 2016, the Veteran disagreed with the initial ratings assigned. In an October 2018 Statement of the Case, the RO denied entitlement to higher ratings in excess of 10 percent for the service-connected peripheral neuropathy of the bilateral lower extremities, and the Veteran subsequently appealed the issues to the Board. In January 2021, the Board awarded the Veteran increased initial 20 percent disability ratings for each of the separately service-connected peripheral neuropathy in the sciatic nerves of the bilateral lower extremities; however, the Board discontinued the 10 percent disability ratings that were assigned for each of the service-connected peripheral neuropathy in the femoral nerves of the bilateral lower extremities. As noted, the Veteran appealed the Board's January 2021 decision to the Court. A September 2021 Court order vacated and remanded the issues on appeal pursuant to a September 2021 JMPR. Specifically, the parties agreed that the Board failed to assist the Veteran in obtaining additional relevant private treatment records pertinent to the Veteran's claims to entitlement to higher disability ratings. As such, the issues of entitlement to higher initial disability ratings in excess of 10 percent for peripheral neuropathy in the femoral nerves of the left and right lower extremities was returned to the Board in order to remand the issues to allow the RO to assist the Veteran in obtaining relevant private treatment records, as discussed below. Upon further consideration and in accordance with the September 2021 JMPR, the Board finds that effective from February 9, 2016, entitlement to a separate 10 percent disability rating is warranted for peripheral neuropathy in the femoral nerves of the left lower extremity, and a separate 10 percent disability rating is warranted for peripheral neuropathy in the femoral nerves of the right lower extremity. The intent of the Board's decision is to reinstate the benefits discontinued in the Board's January 2021 decision and vacated in the September 2021 JMPR. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. The Veteran seeks service connection for bilateral hearing loss and tinnitus. See February 2016 VA 21-526. The Veteran contends that his bilateral hearing loss and tinnitus is related to in-service noise exposure to include guns, mortars, and artillery without ear protection. See February 2016 statement in support of claim. The Veteran also reported that he first experienced hearing loss in service in January 1964 due to weapons fire and has continued to have constant ringing in his ears since then. See September 2010 statement in support of claim. The Veteran reported that he experienced loss of hearing and ringing due to shooting on a rifle range without adequate ear protection in service in May 1965 when he performed two weeks of duty as a coach on the rifle range. Id. The Veteran also reported exposure to shooting and heavy artillery in Vietnam in 1966. Id. Having reviewed the evidence of record, the Board finds that remand for additional development is necessary. When VA obtains an examination and/or opinion, it must ensure that such is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For a medical examination and opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The evidence of record demonstrates the Veteran has a current diagnosis for bilateral hearing loss for VA purposes and tinnitus. See October 2010 VA examination. The Veteran was initially afforded a VA examination in October 2010. The VA examiner noted the Veteran's reports of significant noise exposure during infantry training in January 1964 with no hearing protection and that he experienced hearing loss and tinnitus in service. Id. The Veteran also reported target shooting for recreation with the use of hearing protection. Id. The VA examiner opined that it was at least as likely as not that the Veteran's hearing loss and tinnitus were due to military noise exposure based on the Veteran's statements regarding experiencing significant noise while in infantry training, resulting in temporary hearing loss and constant tinnitus. Id. However, the VA examiner did not address private treatment records that demonstrate the Veteran's exposure to acoustic trauma after service from hunting. For example, a June 2010 private treatment record notes the Veteran's report of experiencing a plugged feeling in his left ear which occurred while he was hunting, and that the Veteran had a significant past history of noise exposure without hearing protection. In June 2011, the RO requested an addendum medical opinion based on a finding that there was no evidence of the Veteran being exposed to combat noise training and because the June 2010 private treatment record indicated the Veteran had extensive post-military noise exposure in the form of hunting without ear protection. In June 2011, a VA examiner opined that it was less likely as not that the Veteran's bilateral hearing loss and tinnitus was related to his in-service noise exposure as a radio repairman. See June 2011 VA examination. The VA examiner based the opinion on the RO's direction to disregard the Veteran's reports of in-service noise exposure and did not address the Veteran's lay statements. Id. The VA examiner also noted the Veteran did not seek medical or audiologic care until 2010, more than 40 years since separation from service and had recreational exposure from hunting. Id. The Board finds the prior October 2010 and June 2011 VA examinations inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). First, as noted, the October 2010 VA examiner did not address the Veteran's exposure to recreational noise from hunting after service and whether the Veteran's bilateral hearing loss and tinnitus are attributable to the intercurrent recreational noise exposure as evidenced by the June 2010 private treatment record. Second, the June 2011 VA examiner incorrectly disregarded the Veteran's lay statements regarding in-service noise exposure. The Board notes the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Board notes that where it is established that a veteran served in combat and that veteran asserts service connection for injuries or disease incurred or aggravated in combat, absent evidence to the contrary, any disability incurred during the combat is presumed. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's military personnel records demonstrate the Veteran served in combat in the Republic of Vietnam from January 1966 to September 1966 and participated in multiple combat operations. Therefore, the Veteran's lay statements regarding exposure to shooting and heavy artillery in Vietnam are presumed. The June 2011 VA examiner did not consider the Veteran's lay statements regarding in-service noise exposure, including from firearms, weapons, howitzers, heavy artillery, and mortars. See September 2010 and February 2016 statements in support of claim. As such, the Board finds the October 2010 and June 2011 VA examinations. See Nieves-Rodriguez, 22 Vet. App. at 302. Therefore, the Board finds remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. Id. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy in the sciatic nerve of the left lower extremity is remanded. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy in the sciatic nerve of the right lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy in the femoral nerve of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy in the femoral nerve of the right lower extremity is remanded. By way of background, in the April 2016 rating decision on appeal, the RO granted the Veteran service connection for peripheral neuropathy in the sciatic and femoral nerves of the bilateral lower extremities and assigned initial 10 percent disability ratings for each. The RO also denied service connection for peripheral neuropathy of the bilateral upper extremities. In June 2016, the Veteran disagreed with the initial ratings assigned by the RO and the denial of his claim to service connection for peripheral neuropathy of the bilateral upper extremities. See June 2016 notice of disagreement (NOD). As noted, the Board previously granted the Veteran initial 20 percent disability ratings for service-connected peripheral neuropathy in the sciatic nerves of the bilateral lower extremities, each; denied service connection for peripheral neuropathy in the bilateral upper extremities; and discontinued service connection for peripheral neuropathy in the femoral nerves of the bilateral lower extremities. In the September 2021 JMPR, the parties agreed remand is necessary to assist the Veteran in obtaining relevant private treatment records. See 38 C.F.R. § 3.159. Specifically, the parties agreed that the VA received notice of potentially relevant outstanding private treatment records. In that regard, the evidence of record demonstrates the Veteran received private treatment from Dr. S.B. indicating the Veteran has neuropathy associated with service-connected diabetes. See January 2016 and March 2016 private treatment records. Therefore, remand is necessary to assist the Veteran in obtaining complete relevant private treatment records, including from Dr. S.B. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to submit any relevant private treatment records and/or VA Form 21-4142 authorizing VA to request copies of any outstanding private treatment records identified by the Veteran, including complete treatment records from Dr. S.B., related to the Veteran's peripheral neuropathy of the lower extremities and claim to entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All development efforts with respect to this directive should be associated with the claims file. 2. Forward the record and copy of this Remand to the examiner who provided the June 2011 VA examination and medical opinion, or, if that examiner is unavailable, to another qualified clinician, for completion of an addendum opinion to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. If the examiner determines that another examination of the Veteran is necessary, such an examination should be scheduled. The VA examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss and tinnitus are related to an in-service injury, event, or disease, to include military noise exposure. The VA examiner must provide an opinion as to whether there is an intercurrent cause of the Veteran's current bilateral hearing loss and tinnitus. The VA examiner must also address the Veteran's June 2010 private treatment record indicating the possibility of an intercurrent cause of the Veteran's bilateral hearing loss and tinnitus due to recreational hunting. A complete rationale should be given for all opinions and conclusions expressed. The examiner must address the Veteran's lay statements, including the September 2010 statement in support of claim which the Veteran asserted that he experienced hearing loss and tinnitus as a result of weapons fire, shooting on the fire range, and shooting of howitzers and other heavy artillery in Vietnam. The VA examiner must consider and address the Veteran's February 2016 statement in support of claim asserting that he was exposed to military noise from guns, mortars, and artillery without ear protection. The examiner is reminded that the Veteran participated in multiple combat operations in Vietnam in 1966. (Continued on the next page) If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.