Citation Nr: 18154189
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-30 466
DATE:	November 29, 2018
ORDER
The application to reopen the claim of entitlement to service connection for a low back disability is granted.
The application to reopen the claim of entitlement to service connection for bilateral hearing loss disability is denied. 

REMANDED
The issue of entitlement of service connection for a low back disability is remanded.
FINDINGS OF FACT
1. In December 2003, the Regional Office (RO) denied the claim of entitlement to service connection for a low back disability (claimed as lower back pain and stiffness). The Veteran did not appeal this decision so it became final. 
2. The additional evidence received since the December 2003 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back disability. 
3. In September 2010, the RO denied, in pertinent part, the claim of entitlement to service connection for bilateral hearing loss disability. The Veteran did not appeal this decision so it became final.
4. The additional evidence received since September 2010 rating decision is cumulative and redundant of the evidence of record at the time of the September 2010 rating decision and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a bilateral hearing loss disability. 
CONCLUSIONS OF LAW
1. The December 2003 rating decision, which denied the claim of entitlement to service connection for a low back disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 
2. The criteria for reopening a claim of entitlement to service connection for a low back disability have been met. 38 U.S.C § 5108 (2012); 38 C.F.R. § 3.156 (2018). 
3. The September 2010 rating decision, which denied the claim of entitlement to service connection for bilateral hearing loss disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 
4. The criteria for reopening the claim of entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1994 to February 1998.  This matter is before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) RO. 
I. New and Material Evidence 
In a December 2003 rating decision, the RO denied the Veteran’s original claim of entitlement to service connection for low back disability.  In a September 2010 rating decision, the RO denied the Veteran’s original claim of entitlement to service connection for bilateral hearing loss disability.  The Veteran did not appeal either of these decisions to the Board.  As such, each decision became final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2012).
Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104 (b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the 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 (a).  In determining whether evidence is new and material, the “credibility of the evidence is to be presumed” unless the evidence is inherently incredible or beyond the competence of the witness.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  

A.	Low Back Disability
In the final December 2003 rating decision, the Veteran’s claim of entitlement to service connection was denied because there was no diagnosed back disability and there were no findings to support causation of a specific injury to the back in service.  At the time of the decision the pertinent evidence of record included the service treatment records (STRs) which showed that the Veteran was treated for lower back pain while in service but was not diagnosed with a lower back disability. The RO also considered a VA examination from October 2003, in which the examiner noted that the Veteran had chronic back pain. However, the examiner opined that back pain was likely secondary to morbid obesity and unlikely due to military service. 
The evidence received since the final December 2003 rating decision includes a July 2015 statement from the Veteran. This evidence is new, as it was not previously submitted to agency decision makers. Some of it is also material as it relates to unestablished facts necessary to substantiate the claim. Specifically, in the statement, the Veteran contends that the development of his obesity is an in-service event that caused low back pain and consequent disability. 
Accordingly, the claim of entitlement to service connection low back disability is reopened.  See Shade, supra.  The appeal is granted to this extent only. 
B.	Bilateral Hearing Loss Disability
Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2018).
In the final September 2010 rating decision, the Veteran’s claim of entitlement to service connection for bilateral hearing loss disability was denied because the record did not show a current disability of hearing loss for VA purposes.  38 C.F.R. § 3.385.  At the time of that decision the pertinent evidence of record included STRs, the Veteran’s DD214, and an August 2010 VA audiology examination report which found normal hearing bilaterally.  Specifically, the report indicates all relevant auditory thresholds below 26 decibels, and speech recognition scores above 94 percent.  38 C.F.R. § 3.385.    
The evidence received since the final September 2010 rating decision includes a VA audiology report dated in October 2015, VA treatment records, and a July 2015 statement from the Veteran.  This evidence is new but it is not material evidence. As with the evidence of record in September 2010, the new evidence does not contain a current diagnosis of hearing loss for VA purposes.                  See 38 C.F.R. § 3.385.  The October 2015 VA audiology report indicated audiometric results “unchanged from 2010.”  The report states that the Veteran’s hearing is within normal limits bilaterally.  As such, the new evidence, even when considered with evidence of record in September 2010, does not relate to an unestablished fact necessary to substantiate the claim (i.e., evidence of a diagnosis of bilateral hearing loss disability under 38 C.F.R. § 3.385).    
Accordingly, the new evidence does not raise a reasonable possibility of substantiating the underlying claim of service connection.  38 C.F.R. § 3.156(a).  Therefore, the Board cannot grant the petition to reopen the claim of entitlement to service connection for bilateral hearing loss disability.  

REASONS FOR REMAND
The Veteran seeks service connection for a low back disability. He asserts that he has had continuous back problems since active duty.  An October 2003 VA examination report indicates that the Veteran may have chronic pain in his lower back.  Further, STR’s document multiple complaints of back pain.  He now asserts that the obesity which led to his discharge from service led to back problems that developed into chronic low back disability.  He should be provided a VA compensation examination into his reopened claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The matter is REMANDED for the following action:
1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic claims file. If any identified records are not obtained (or none exist), the Veteran and his representative should be notified and the record clearly documented in accordance with 38 C.F.R. § 3.159(e).
2. Schedule an examination to determine the nature and etiology of any back disability.  After reviewing the claims file and interviewing and examining the Veteran, the examiner should answer the following questions.
(a). What are the Veteran’s current back disabilities?  
(b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that a current back disability is related to an event, injury, or disease during active duty?  
In answering (b), consider and discuss the STRs noting complaints of back pain, the Veteran’s documented obesity during service, and his theory that obesity during service led to chronic back disability.  
(Continued on the next page)
 
Please explain in detail any opinion provided.
 
CHRISTOPHER MCENTEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Ronquillo, Law Clerk  

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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