Citation Nr: 22037167 Decision Date: 06/28/22 Archive Date: 06/28/22 DOCKET NO. 15-36 728 DATE: June 28, 2022 ORDER New and material evidence having been received to reopen the claim of service connection for right knee disorder, to that extent, the appeal is granted. New and material evidence having been received to reopen the claim of service connection for right ankle disorder, to that extent, the appeal is granted. New and material evidence having been received to reopen the claim of service connection for left ankle disorder, to that extent, the appeal is granted. New and material evidence having been received to reopen the claim of service connection for bilateral hearing loss, to that extent, the appeal is granted. REMANDED Entitlement to service connection for left knee disorder is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for right ankle disorder is remanded. Entitlement to service connection for left ankle disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a March 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for right knee, right ankle, left ankle, and bilateral hearing loss; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the March 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right knee, right ankle, left ankle, and bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for right knee disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim for service connection for right ankle disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for reopening the previously denied claim for service connection for left ankle disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for reopening the previously denied claim for service connection for bilateral hearing loss have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1965 to November 1966, with additional service in the Rhode Island Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Claims to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Right Knee 2. Right Ankle 3. Left Ankle 4. Bilateral Hearing Loss The RO denied the Veteran's claim of service connection for right knee, right ankle, left ankle, and bilateral hearing loss disabilities in a March 2011 rating decision, finding no current disability for the conditions. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. However, in an October 2011 VA treatment record, the Veteran reported arthritis in the right knee and ankle. Because The RO never determined whether this evidence was new and material. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2011). The evidence received since the March 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, an October 2014 and an August 2015 VA treatment record shows the Veteran reporting pain in his right knee and after undergoing an MRI, there was indication of degenerative joint disease. In a November 2014 VA examination, the Veteran was diagnosed with bilateral hearing loss. This new evidence addresses the reason for the previous denial; that is, indication of a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND With respect to all claims being remanded, the most recent VA treatment records associated with the claims file are from August 2015. At his hearing, the Veteran was asked whether he receives treatment at VA and he said yes, but had not been "for a couple years because of Covid." The undersigned takes judicial notices that the pandemic began in 2020. Because there could be outstanding VA treatment records, the RO should attempt to obtain them if they exist. Additionally, the Veteran testified that he received private treatment after 2014, which is the date of the most recent private treatment records in his claims file. The RO should provide the Veteran with the appropriate release forms and attempt to obtain his private medical records if he returns the forms. 1. Service Connection for Left Knee is Remanded. 2. Service Connection for Right Knee is remanded. The Veteran contends that he has a bilateral knee disorder that began in 1992 after injuring his knee while setting up tents. See February 2022 Hearing Tr. at 2-3. A review of the Veteran's record indicates that this injury occurred while the Veteran was in the Rhode Island Air National Guard. The Veteran's personnel records from his service in the Air National Guard have not been obtained. A response received from the Rhode Island Air National Guard noted that any additional personnel records should be obtained at the Air Reserve Personnel Center. See November 2010 Military Personnel Record, see also September 2014 Third Party Correspondence. While an attempt was made in September 2014 by the RO to obtain these records, there has been no negative response received or notice that such records do not exist. Thus, a remand is required to obtain the Veteran's personnel records from the Rhode Island Air National Guard, and to verify all active duty for training (ADT) and inactive duty training dates (IADT). 3. Service Connection for Right Ankle is Remanded. 4. Service Connection for Left Ankle is Remanded. The Veteran asserts that he has a bilateral ankle disorder that was caused by the same accident that caused his knee disorder. See February 2022 Hearing Tr. at 7. He also asserts that he sustained an ankle injury in April 1992 while working at Camp Las Delicias, Honduras from walking on the rubble. See September 2014 Correspondence. As the Veteran is also asserting that this injury occurred during his Air National Guard service, the issues must be remanded for the same reasons noted above. 5. Service Connection for Bilateral Hearing Loss is Remanded. The Veteran asserts that his bilateral hearing loss was caused by working with heavy equipment during service, such as when he was "ripping down mountains" in Honduras. See February 2022 Hearing T. at 13. The Veteran's MOS while in the Air National Guard was that of Heavy Equipment Operator. Thus, for similar reasons noted above, a remand is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since August 2015 with the Veteran's claims file. If the records are unavailable, he should be notified. 2. Provide the Veteran with the appropriate release forms for his private medical records. If he returns the forms, attempt to obtain his private medical records. Negative responses must be documented. 3. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Rhode Island Air National Guard. Verify all active duty for training and inactive duty training dates for alleged service in the Rhode Island Air National Guard. A request should also be made to the Air Reserve Personnel Center, and if necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 4. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.