Citation Nr: 1337504 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-18 203A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an increased evaluation in excess of 30 percent for traumatic arthritis of the right knee, status post arthroscopic chondroplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A timely notice of disagreement (NOD) was received from the Veteran in September 2009. After a statement of the case (SOC) was issued to the Veteran in March 2010, the Veteran perfected his appeal in May 2010 by filing a substantive appeal, via VA Form 9. A review of the Virtual VA paperless claims processing system revealed a copy of an informal hearing brief from the Veteran's representative. The issue of entitlement to an increased evaluation in excess of 30 percent for traumatic arthritis of the right knee, status post arthroscopic chondroplasty is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a final decision issued in September 1992, the RO denied the Veteran's claim of entitlement to service connection for tinnitus. 2. Evidence added to the record since the final September 1992 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 3. Granting the Veteran the benefit of the doubt, the evidence of record demonstrates that tinnitus is related to active service. CONCLUSIONS OF LAW 1. The September 1992 rating decision that denied the Veteran's claim of entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006) [(2013)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As the Board's decision to reopen the Veteran's claim of entitlement to service connection for tinnitus as well as a grant for service connection thereof is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Legal Criteria New and Material Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). 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.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his current tinnitus is related to acoustic trauma experienced in military service. In particular, the Veteran has stated that he was exposed to jet aircraft noise while stationed at Beale Air Force Base and assigned to the maintenance squadron. He also stated that he was exposed to such noise when assigned to units that were adjacent to flight lines, to include Korea and McGuire Air Force Base. The Veteran's spouse provided a statement regarding the Veteran's tinnitus. She stated that her husband has suffered from tinnitus since she first met him in 1994. It was stated that he has to sleep with a television or fan in order to drown out the ringing. She further stated that the Veteran claimed he had been told by doctors during his military service that nothing could be done about his tinnitus, but he began revisiting the issue in 2009 when he was told something may be able to be done to treat it. The Veteran's service treatment records were absent for a showing of complaints, treatment, or diagnosis of tinnitus. The Veteran's entrance examination did not show that the Veteran had tinnitus upon entry into service. The Veteran was provided a general VA examination in August 1992. At that examination he was diagnosed with bilateral tinnitus. This diagnosis was made less than one month after service discharge. However, the Veteran failed to attend an audiological VA examination in order to get an opinion regarding etiology. The Veteran was provided with an audiological VA examination in August 2009. It was noted that the Veteran complained of bilateral tinnitus that frequently interferes with sleep that gradually began in 1991. The Veteran indicated that he reported the tinnitus to a doctor during service in Saudi Arabia, but it was never documented. The examiner found that the service treatment records made no mention of a diagnosis of tinnitus, although the Veteran was in a hearing conservation program early in his service. The examiner further noted that a discharge examination was not available. The examiner diagnosed the Veteran with bilateral tinnitus. He opined that it was less likely than not caused by or related to service. In support he provided that, while exposure to acoustic trauma in service was conceded, treatment records were absent for a diagnosis of tinnitus until 2009 and such delayed onset made a connection unlikely. Analysis New and Material In a September 1992 rating decision, the RO denied service connection for tinnitus on the basis that the evidence did not show that such condition occurred in or was caused by service. The evidence considered at the time of the 1992 decision consisted of service treatment records and an August 1992 VA examination. It was noted that the Veteran had failed to report for an audiological examination in order to determine etiology of tinnitus. In February 1993, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for tinnitus was received until June 2009, when VA received his application to reopen such claim. Therefore, the September 1992 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006) [(2013)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for tinnitus was received prior to the expiration of the appeal period stemming from the September 1992 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence received since the September 1992 rating decision includes the aforementioned June 2009 claim, an August 2009 VA examination report, a June 2009 statement from the Veterans spouse, and the Veteran's subsequent statements. Such evidence is new in that it was not previously of record. Additionally, the Board finds that such is material to the claim. In this regard, the statements of the Veteran and the statements made in the course of the August 2009 VA examination provided indication that the Veteran developed tinnitus during service while working on or near various flight lines at Air Force Bases. Additionally, the Veteran and his spouse have provided new statements that he actually sought treatment for tinnitus while in service, but such was not recorded. Last, the statement of the Veteran's spouse provides further indication that the Veteran's tinnitus occurred at least in 1994, if not earlier, which is well before the 2009 onset as found by the 2009 VA examiner. Therefore, as the newly received evidence demonstrates in-service symptoms and onset, the Board finds that the evidence received since the September 1992 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection for tinnitus. See 38 C.F.R. § 3.156(a). Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for tinnitus is reopened. Service Connection The Board finds that the evidence of record supports service connection for tinnitus. First, there is a current disability because the Veteran has been diagnosed with tinnitus as well as provided competent and credible evidence of ringing in his ears. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to testify regarding symptoms such as ringing in the ears or noise to which he was exposed in service, as such things are subject to direct observation. Further, the Veteran is credible because he has been consistent in his statements regarding his symptoms and their onset and the his service record supports such contentions. Second, there is an in-service incurrence because the Veteran has provided competent and credible evidence of ringing in his ears during service, beginning in 1991. Id. Furthermore, the Veteran's service in the Air Force as well as competent and credible statements regarding duty assignments near flight lines indicates in-service noise exposure, which tends to support his statements of ringing in his ears during service. Also, there is evidence that the Veteran had tinnitus within 10 days of discharge from service, as his initial claim for tinnitus was processed on July 27, 1992 after he had been discharged on July 17, 1992, and the August 1992 VA examination, conducted less than a month later, verified that the Veteran was diagnosed with tinnitus at that time. Third, the Veteran has provided competent and credible testimony that his tinnitus has continued since service discharge. See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511. Accordingly, the evidence of record supports a finding of service connection for tinnitus. The Board notes that the August 2009 VA examiner provided a negative etiological opinion. The examiner provided this opinion, however, in reliance on the absence of treatment for tinnitus in service, the absence of a hearing loss shift in service, and the finding that the earliest complaint of tinnitus was in 2009. However, the Veteran's 1992 claim, 1992 VA examination, statements, and spouse statement all indicate that he had complained of tinnitus as early as 1992 and had also told examiners that it first began in 1991 and continued to present. Also, VA examiner's reliance on the mere fact that there is no evidence of treatment in service is not a sufficient rationale for VA purposes. See Nieves-Rodriguez v. Peak, 22 Vet App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Finally, the Board finds the Veteran's lay statements competent, credible, and probative. See Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511. Additionally, the Board does not assign significant weight to the negative VA opinion because it was provided in part on an incorrect factual basis as well as providing insufficient reasoning. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based on an inaccurate factual premise has no probative value); see also Nieves-Rodriguez, 22 Vet App. at 295. As such, the Board has determined that the Veteran is competent and credible in his report that he was exposed to acoustic trauma in service, experienced bilateral constant tinnitus in service, and has experienced continuous symptoms of tinnitus since service. Therefore, service connection for tinnitus is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a current VA examination for the Veteran's right knee arthritis post arthroscopic chondroplasty. The most recent VA examination for the Veteran's right knee was in June 2009, over four years ago. In an informal hearing brief from the Veteran's representative submitted in October 2013, it was indicated that the Veteran's condition is worse than contemplated in the last evaluation. The statement contended that, per a letter from the Veteran's son, the Veteran required assistance with activities of daily living, to include getting out of bed. At the time of the Veteran's June 2009 VA examination, no such limitations were noted. Furthermore, it was posited that the Veteran's current right knee condition is analogous to a total knee replacement and should be evaluated as such. The June 2009 VA examination merely mentioned that the Veteran had considered knee replacement for his right knee, but that he was not currently a candidate for such a procedure. Accordingly, it appears that the Veteran is asserting that his condition has progressed to a much worse level of impairment since his last examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Because of the length of time since the Veteran's last examination, and his testimony of additional and worsening symptoms, a contemporaneous examination is needed to ascertain the current severity of his right knee arthritis status post arthroscopic chondroplasty. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of his right knee arthritis status post arthroscopic chondroplasty. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must also do the following: (a) Describe all orthopedic and neurological impairment associated with the Veteran's right knee arthritis status post arthroscopic chondroplasty. (b) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (c) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (d) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (e) The examiner should also note whether any instability result from the Veteran's right knee and the degree to which such instability is mild, moderate, or severe. (f) The examiner should also provide an opinion regarding whether the current functioning of the Veteran's right knee arthritis status post arthroscopic chondroplasty is analogous to the effects of a total knee replacement. (g) The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. The rationale for all opinions expressed should also be provided. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs