Citation Nr: 1305397 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 09-42 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for avascular necrosis of the left hip. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from November 1977 to November 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Review of Virtual VA reveals no pertinent documents. FINDINGS OF FACT 1. In March 2000 and April 2002 rating decisions, the RO denied the appellant's claim of service connection for avascular necrosis of the left hip. Although he was notified of the RO's determinations and his appellate rights, he did not perfect an appeal within the applicable time period. 2. In November 2006, the appellant requested reopening of his claim of service connection for avascular necrosis of the left hip. 3. Evidence received since the last final rating decisions denying service connection for avascular necrosis includes official service department records, in existence and not previously associated with the claims file, and relating to an in-service hip injury, an event which the appellant contends caused his current avascular necrosis of the left hip. 4. Avascular necrosis of the left hip was not clinically identified during service or for approximately eighteen years thereafter and the most probative evidence establishes that the appellant's current avascular necrosis of the left hip is not causally related to his active service or any incident therein, including a hip injury. 5. Tinnitus was not present during the appellant's active service or for more than two decades thereafter and the most probative evidence establishes that the appellant's current reported tinnitus is not causally related to his active service or any incident therein, including noise exposure. CONCLUSIONS OF LAW 1. The March 2000 and April 2002 rating decisions denying service connection for avascular necrosis of the left hip are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. In light of the receipt of additional relevant service department records, the issue of entitlement to service connection for avascular necrosis of the left hip is subject to reopening. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 3. Avascular necrosis of the left hip was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with respect to the issues adjudicated in this decision. There is no issue as to providing an appropriate application form or completeness of the application. In January 2007, prior to the initial decision on the claims, VA notified the appellant of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional, relevant and available records have yet to be requested, or that additional examinations are in order. Neither the appellant nor his representative has argued otherwise. Background In November 1998, the appellant submitted an original application for VA compensation benefits, seeking service connection for avascular necrosis of the left hip which he contended was causally related to an in-service basketball injury. The appellant's application is silent for any mention of tinnitus, as is medical evidence assembled in connection with the application. In support of the appellant's application, VA contacted the service department and requested his service treatment records. In March 2000, however, the service department advised VA that the records were not available. VA also requested private clinical records identified by the appellant, dated from April 1997 to December 1998. In pertinent part, these records show that in January 1998, the appellant was seen by a private orthopedic surgeon in connection with his complaints of intermittent left hip pain for the last three to four years. The appellant denied history of injury or overuse. He subsequently underwent an MRI study and was diagnosed as having avascular necrosis of the left hip. In February 1998, the appellant underwent surgical decompression of the left hip. In a December 1998 letter, the appellant's private orthopedic surgeon indicated that the appellant had been under his care for avascular necrosis of the left hip since January 1998. He indicated that the nature of avascular necrosis was somewhat unpredictable but that it could generally be expected to progress to a chronic and painful condition affecting the hip joints. The condition frequently required a total hip arthroplasty. The orthopedic surgeon indicated that the etiology of the appellant's avascular necrosis was unclear although he did not believe it was related to his employment at the post office. Based on the evidence discussed above, in a March 2000 rating decision, the RO denied service connection for avascular necrosis, finding that the claim was not well grounded under criteria then in effect. Specifically, the RO concluded that in the absence of a nexus between the appellant's current avascular necrosis of the left hip and his active service, the claim was not well grounded. The appellant was notified of the RO's determination and his appellate rights in a March 2000 letter but he did not appeal. In September 2001, the RO notified the appellant that his claim was being reconsidered in light of the enactment of the VCAA. See Pub. L. No. 106-475, 114 Stat. 2096, 2099, §7(b); see also VA O.G.C. Prec. Op. No. 3-2001, published at 66 Fed. Reg. 33,309-01 (Jan. 22, 2001) (providing for readjudication of claims that became final between July 14, 1999, and November 9, 2000, and were denied on the basis that they were not well grounded). In support of his claim, the appellant submitted a statement in which he recalled injuring his left hip in service while playing basketball. He also recalled that his in-service duties had required prolonged standing and walking as well as heavy lifting. In an April 2002 rating decision, the RO denied service connection for avascular necrosis, finding that absent any indication of a relationship between that condition and the appellant's active service, service connection was not warranted. The appellant was notified of the RO's determination and his appellate rights in a May 2002 letter, but he did not appeal. In November 2006, the appellant requested reopening of his claim of service connection for avascular necrosis. He also claimed entitlement to service connection for several additional disabilities, including tinnitus which he argued had been incurred secondary to his training as a marksman. In connection with the appellant's claims, in April 2007, the RO again contacted the service department and requested the appellant's service treatment records, as well as his service personnel records. These records were received later that month. In pertinent part, the appellant's service personnel records show that his military occupational speciality was TOW/DRAGON repairer. His awards and decorations included a Marksman Badge for the M16 rifle. The appellant's service treatment records show that at his October 1977 military enlistment medical examination, no pertinent abnormalities were identified. Audiometric testing showed normal hearing acuity. The appellant again underwent reference audiograms in August 1978 and July 1979, both of which showed normal hearing acuity. In May 1980, the appellant sought treatment for hip pain, reporting that he had hurt his hip one month prior while playing basketball. He indicated that his hip pain had worsened with running. The appellant was given a temporary physical profile for five days. The remaining service treatment records are silent for complaints or abnormalities pertaining to the hips. At the appellant's October 1980 military separation medical examination, his ears, spine, lower extremities, and musculoskeletal system were examined and determined to be normal. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 5 20 LEFT 10 10 10 5 15 In connection with his separation examination, the appellant completed a report of medical history on which he denied having or ever having had hearing loss, ear trouble, arthritis, rheumatism, bursitis, or bone and joint deformities. In connection with his claims of service connection for avascular necrosis and tinnitus, the appellant was scheduled for VA orthopedic and audiology examinations to be held in August 2007. The appellant, however, failed to report for the examinations without explanation and in an October 2007 rating decision, the RO denied the claims. The following month, the appellant contacted the RO and claimed that he had not reported for the scheduled examinations as he had been out of town. He asked that the examinations be rescheduled. The examinations were thereafter rescheduled but the appellant again failed to report without explanation. In December 2007, the appellant contacted the RO and claimed that he had not reported for the rescheduled examinations as he had had to work. In a March 2008 rating decision, the RO again denied the claims. In April 2008, the appellant initiated an appeal, claiming that he had never received any of the notices to report for his VA medical examinations, although he acknowledged that the address to which they had been sent was correct. He asked that the examinations be rescheduled. In May 2008, the appellant underwent VA orthopedic examination at which he reported a history of injuring his left hip in service while playing basketball. He claimed that his hip had been sore for several weeks thereafter and never got better. He indicted that in 1998, his symptoms increased prompting an MRI and surgery for avascular necrosis. After examining the appellant and reviewing the claims folder, the examiner diagnosed the appellant as having avascular necrosis, status post core decompression. The examiner indicated that it was his opinion that the appellant's left hip disability, avascular necrosis, was less likely as not related to service, including the in-service hip injury. The appellant was also scheduled for a VA audiology examination but again he failed to report. In an August 2008 rating decision, the RO denied the claim. In a January 2009 statement, the appellant asked that his examination be rescheduled as he had unable to attend due to an unspecified emergency which had caused him to be out of town. In January 2010, the appellant testified at a hearing at the RO. He set forth the details of his in-service hip injury and claimed that since that time, he had had problems with his left hip. He indicated that he initially thought he had left hip bursitis but was eventually diagnosed as having avascular necrosis. With respect to his tinnitus, the appellant claimed that he had had exposure to loud noises from weapons fire during basic training and on subsequent periodic qualifications. He contended that his tinnitus was related to that noise exposure. The appellant further claimed that he had missed his audiology examinations due to a "bad address" with the VA hospital and requested that his examination be rescheduled. Following the hearing, the RO obtained additional private clinical records identified by the appellant, dated from March 2005 to February 2009. In pertinent part, these records show that the appellant continued to receive follow-up care for avascular necrosis of the left hip. These record show that during a clinic visit in March 2005, the appellant dated the onset of his left hip disability to 1998. During a clinic visit in February 2009, he reported that date of onset of his left hip disability had been in 2000. The appellant was afforded a VA medical examination in March 2010 at which he reported in-service noise exposure from weapons fire and motor pool noise. He indicated that since his separation from service, he had worked briefly at a waste treatment plant, but then had worked for the postal service for the past twenty years. The appellant indicated that he wore hearing protection at the post office. He denied recreational noise exposure. The appellant indicated that approximately five to seven years prior, he had developed left sided tinnitus. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 10 15 20 LEFT 0 0 10 10 10 Speech audiometry revealed speech recognition ability of 100 percent, bilaterally. The diagnosis was clinically normal hearing acuity with subjective tinnitus. The examiner reviewed the claims folder, including the appellant's service treatment records. He noted that audiometric testing conducted at the appellant's service enlistment examination, two in-service hearing conservation tests, and at his separation examination, had all shown that the appellant's hearing acuity had been within normal limits with no significant threshold shifts. He further noted that the appellant had reported that the onset of his tinnitus was 5 to 7 years prior, approximately 25 years after service separation. Given these factors, the examiner concluded it was less likely than not that the appellant's current reported tinnitus had been incurred in service, including as a result of exposure to acoustic trauma. Applicable Law New and material evidence In general, rating decisions that are not appealed in the prescribed time period are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C.A. § 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 must be presumed unless evidence is inherently incredible or beyond competence of witness). Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. Id. An award made based all or in part on additional relevant official service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Service connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection for certain chronic diseases, including arthritis or an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis Avascular necrosis of the left hip As set forth above, in March 2000 and April 2002 rating decisions, the RO denied service connection for avascular necrosis of the left hip, finding that the evidence of record at that time failed to establish a nexus between the appellant's disability and his active service. Although the appellant was duly notified of the RO's decisions and his appellate rights, he did not perfect an appeal nor was new and material evidence received within the applicable time period. Neither he nor his representative has contended otherwise. Thus, the decisions are final and not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. As set forth above, however, in connection with the appellant's request to reopen the claim of service connection for avascular necrosis of the left hip, the RO obtained additional service department records that had existed but were not previously associated with the claims file. These service treatment records include a notation of treatment following a hip injury, an incident which the appellant alleges led to his current avascular necrosis of the left hip. Under VA regulation, where new evidence consists of relevant records from the service department, the former decision will be reopened. 38 C.F.R. § 3.156(c). Relevant records include those which are related to a claimed in-service event, injury, or disease. Given the additional service department records and the appellant's contentions, the Board finds that reopening of the appellant's claim of service connection for avascular necrosis on a de novo basis is now required. The RO has considered the matter on the merits, so the Board may proceed to the merits without prejudice to the Veteran. Turning to the merits of the claim, the appellant contends that his current avascular necrosis of the left hip is causally related to an in-service injury he sustained while playing basketball. As a preliminary matter, the Board notes that the evidence does not show, nor does the appellant contend, that avascular necrosis of the left hip was present during active service or for many years thereafter. Indeed, the record establishes that the appellant was not diagnosed as having avascular necrosis until 1998, approximately 18 years after service separation, and he has not contended otherwise. Rather, he contends that he sustained a left hip injury in service and that such hip injury led to the development of avascular necrosis of the left hip many years thereafter. The Board notes that the appellant's service treatment records do document a complaint of hip pain in May 1980 following a basketball injury. The record, however, contains no indication that the appellant's post-service avascular necrosis of the left hip is causally related to that in-service injury. Indeed, as set forth above, in March 2010, the appellant underwent VA medical examination for the express purpose of determining whether his current avascular necrosis was related to service or any incident therein, including the May 1980 hip injury. After examining the appellant and reviewing the record, however, the examiner concluded that it was less likely than not that the appellant's avascular necrosis was related to the in-service hip injury. There is no medical evidence of record which contradicts this medical opinion or otherwise suggests that the appellant's post-service avascular necrosis was incurred in service or is otherwise causally related to service or any incident therein, including the in-service hip injury. Under these circumstances, the Board finds that the preponderance of the evidence is against the claim. In reaching its decision, the Board has considered the appellant's recent contentions to the effect that that he has experienced continuous left hip symptomatology since service, but finds his reports to be lacking in credibility. In that regard, the Board observes that the contemporaneous clinical record does not support the appellant's recent contentions of continuous left hip symptomatology since service. For example, although the appellant has recently claimed that he initially thought his left hip symptoms were the result of bursitis, at his October 1980 military separation medical examination, he completed a report of medical history on which he denied having or ever having had any joint problems, including bursitis. His musculoskeletal examination was normal at that time. The post-service record on appeal similarly fails to provide support for the appellant's recent claims of continuous left hip symptomatology since service. For example, on multiple occasions in clinical settings prior to filing his claim, the appellant dated the onset of his left hip symptoms to 1994, 1998, or 2000, and denied a history of injury. He gave no indication whatsoever of having experienced continuous left hip symptoms since service. The Board finds that if the appellant had, in fact, been suffering from left hip problems since service, he would have mentioned it at some time prior to filing his most recent claim for VA compensation. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))). The Board also notes that the record contains a pattern of inconsistencies in connection with the claim. As set forth above, the appellant failed on multiple occasions to report for scheduled VA examinations. In requesting that the examinations be rescheduled, he variously claimed that he had been unable to attend because he was out of town, because he had to work, because he had had an unspecified emergency, because he had not received the examination notices even though the address to which they had been sent was correct, and because VA had sent the notices to a bad address. In addition to the factors above, these inconsistencies raise concerns regarding his credibility. Having reviewed the entire record, the Board assigns far more probative value to the contemporaneous clinical records and the medical history reported by the appellant in a clinical setting, than to his recent claims of continuous symptomatology since service, made in the context of a claim for monetary benefits. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); see also Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and desire for monetary gain); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that the contemporaneous evidence has greater probative value than history as reported by a claimant). In summary, the Board finds that the most probative evidence record shows that avascular necrosis of the left hip was not present in service or for many years thereafter and that his current avascular necrosis of the left hip is not causally related to his active service or any incident therein. For the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against the claim of service connection for avascular necrosis. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53. Tinnitus The appellant also seeks service connection for tinnitus which he contends is causally related to noise exposure during active service. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim of service connection for tinnitus. As set forth above, the appellant reports that he sustained acoustic trauma during active service, including from weapons fire and engine noise. The appellant is competent to describe his recollections of in-service acoustic trauma and the record contains no basis upon which to question his credibility in this regard. Indeed, his service treatment records confirm the receipt of a Marksman Badge and a military occupational speciality consistent with noise exposure, including from machinery. That an injury such as acoustic trauma occurred in service, however, is not enough to establish service connection. Rather, there must be chronic disability resulting from that in-service injury or disease. In this case, the evidence establishes that the appellant did not develop tinnitus during service. As set forth above, the appellant's service treatment records are entirely negative for complaints or findings of tinnitus and repeated audiometric tests conducted during service consistently showed normal hearing acuity, including at service separation. Moreover, the post-service record on appeal shows that the appellant dated the onset of his tinnitus to approximately 2003 to 2005. Given this evidence, the Board concludes that tinnitus was not present during the appellant's active service or for many years thereafter. Although the record establishes that tinnitus was not present during the appellant's active service or for many years thereafter, as set forth above, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the Board finds that the record contains no indication that tinnitus is causally related to the appellant's active service or any incident therein, including noise exposure or acoustic trauma. There is no medical evidence suggesting a nexus between the appellant's current reported tinnitus and his active service, nor has the appellant alleged continuous tinnitus since service. Again, at his March 2010 VA medical examination, the appellant indicated that his tinnitus had begun only five to seven years prior. Additionally, in March 2010, a VA audiologist concluded that given the record, the appellant's current tinnitus was less likely than not related to his active service or any incident therein, including noise exposure. Given these findings, the Board concludes that the preponderance of the evidence in this case is against the claim of service connection for tinnitus. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER New and material evidence has been received, the claim for service connection for avascular necrosis of the left hip is reopened. Entitlement to service connection for avascular necrosis of the left hip is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs