Citation Nr: 1509130 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-28 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a right knee disorder. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for bilateral hearing loss. 4. 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 A. Dixon, Associate Counsel INTRODUCTION The Veteran served in the Army Reserves with active duty periods from October 1994 to May 1997, and September 2002 to September 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2013, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's virtual claims file. In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. The issues of service connection for toothaches and decrease in eyesight have been raised by the record in a June 1997 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an unappealed decision dated in December 1997, the RO denied a claim for entitlement to service connection for a right knee disability, on the basis that there was insufficient evidence of a diagnosis of a right knee disability. 2. The evidence received since the RO's December 1997 decision is new, but is not material as it does not raise a reasonable possibility of establishing the Veteran's claim of entitlement to service connection for a right knee disability. 3. The Veteran does not have a current left knee disability. CONCLUSIONS OF LAW 1. The December 1997 rating decision that denied service connection for a right knee disability is final and binding. 38 U.S.C.A. § 7105 (2014); 38 C.F.R. § 20.1103 (2014). 2. New and material evidence has not been submitted and the Veteran's claim for entitlement to service connection for a right knee disorder is not reopened. 38 U.S.C.A. § 5108 (2014); 38 C.F.R. § 3.156 (2014). 3. The criteria for service connection for left knee disability have not been met. 38 U.S.C.A. § 1110 (2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Service connection for a right knee disability was denied in a December 1997 rating decision on the basis that there was insufficient evidence to warrant a current diagnosis of any acute or chronic medical condition. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period, and the rating decision therefore became final. See 38 U.S.C.A. §§ 5103, 5103A, 7105 (2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2014). If a claim has been previously denied and that decision became final and binding, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. §§ 5108, 7105(c); see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 38 C.F.R. § 3.156(a). The December 1997 rating decision denied service connection for a right knee disability on the basis that the evidence did not establish a current right knee disorder. Therefore, in this case, new and material evidence would consist of evidence that the Veteran has a current right knee disorder. At the time of the December 1997 rating decision, the evidence of record included the Veteran's service treatment records (STRs), which show treatment for right knee pain in November 1994, and an August 1997 VA examination. The VA examiner noted that the Veteran complained of daily bilateral knee pain under the patella for the past three years, and that the Veteran twisted both knees during basic training in 1994. Upon examination, there was no warmth, swelling, erythema, tenderness to palpitation, patellar compression tenderness. Flexion and extension were both normal. Medial and lateral collateral ligaments were stable. Lachman's and McMurray's tests were both negative. The examiner concluded that there was insufficient evidence to warrant a diagnosis of any acute or chronic medical condition. The Veteran's right knee claim was accordingly denied, as there was no evidence of a current right knee disability. Since the December 1997 rating decision, additional evidence has been presented. Specifically, the Veteran stated in his October 2012 substantive appeal and August 2013 Board hearing that he was diagnosed with Osgood-Schlatter disease following his 1994 in-service knee injury. When asked directly during his Board hearing whether he was currently being treated for a knee disorder, the Veteran testified that he had not gotten treatment for knee problems since he left service in 2003. Rather, he self-medicates with Motrin and wears a non-doctor prescribed knee brace that he purchased at Walmart. The record also includes medical records generated since the December 1997 rating decision. However, those records are absent for any treatment for knee disorders, except for a non-service-related fibular fracture in May 2002. See VA treatment record dated May 26, 2002. Finally, the Veteran was afforded a VA examination in July 2012. Objective clinical testing revealed normal range of motion, no objective evidence of pain on motion, no limitation of motion after repetitive-use testing, and no tenderness or pain to palpitation in both knees. Additionally, muscle strength and joint stability testing was all normal bilaterally. Diagnostic imaging showed no evidence of degenerative or traumatic arthritis, patellar subluxation, or other significant findings in either knee. The VA examiner concluded that as to the Veteran's right knee, there was no diagnosis of a right knee condition since all examination findings were negative. The Board finds that while all of the above evidence is new, it is not material in that it fails to show that the Veteran has a current right knee disorder, and therefore raises no reasonable likelihood of substantiating the Veteran's claim. Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). The Board also acknowledges that the Veteran alleges that he has a right knee disability, and is presumed to be credible for the limited purpose of determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, while the Board finds the Veteran's subjective complaints of right knee pain to be credible, that assertion is no different than the allegation he made in 1997 when he initially filed his claim. As such, his statements now are effectively not new. As such, the Board finds that the Veteran has not submitted new and material evidence required to reopen his claim for entitlement to service connection for right knee disability. Therefore, the Veteran's claim is not reopened and it is denied. II. Service Connection for Left Knee Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). Although the Board notes the Veteran's subjective complaints of bilateral knee pain, the objective medical evidence of record shows no abnormalities in either knee. As detailed above, the July 2012 VA examination shows no abnormalities in the Veteran's left knee, either through clinical observation and testing, or by diagnostic imaging. The Veteran's medical records are consistent with the VA examiner's opinions in that there is no evidence of treatment for a knee disability. As there is no evidence of a current disability, there is no basis on which the claim for service connection may be granted. Brammer, 3 Vet. App. at 225. It is therefore unnecessary to address any other element of service connection. Accordingly, the claim for service connection for right and left knee disabilities is denied. III. VA's Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him under the Veteran's Claims Assistance Act of 2000 (VCAA). Notice letters dated in January 2010, March 2010, and June 2010 are of record. In addition to notifying the Veteran of the evidence needed to support his left knee claim, those letters specifically notified the Veteran as to why his right knee claim was previously denied, and what "new" and "material" meant in the context of reopening that claim. The Veteran was provided a thorough VA medical examination in July 2012 for the development of his knee disability claims. The Veteran has made no specific allegations as to the inadequacy of that opinion. Thus, the Board finds that opinion adequate. Sickels v. Shinseki, 643, F.3d 1362 (Fed. Cir. 2011). The RO has obtained pertinent medical records including the Veteran's STRs and VA outpatient treatment reports. The Board notes that VA was unable to obtain the Veteran's complete service personnel and treatment records from his second period of active service, despite several attempts. See VA Memorandum regarding formal finding on the unavailability of service records for the Veteran's second period of military service, dated April 19, 2010. In a case where a claimant's service records are unavailable through no fault of his own, the Board acknowledges that there is a heightened obligation for VA to assist in the development of his claim and to provide reasons and bases for any adverse decision rendered without these records. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claims. Therefore, the duty to assist him in obtaining pertinent records has been satisfied, to the extent that identified records are obtainable. 38 C.F.R. § 3.159(c) (2014). Finally, the Veteran testified at a hearing before the Board in August 2013. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative and the VLJ asked relevant questions concerning the onset and etiology of his knee disabilities. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2014). Accordingly, the Board finds that no further development is necessary to reach a decision on the Veteran's knee disability claims. ORDER As new and material has not been presented to reopen a claim of service connection for right knee disability, the claim is not reopened. Entitlement to service connection for left knee disability is denied. REMAND Unfortunately, the Board finds that remand is necessary to obtain an adequate medical opinion in regard to the Veteran's claim for bilateral hearing loss and tinnitus. The Veteran's military entrance and separation examinations reflect that some degree of right ear hearing loss preexisted service, as the threshold for normal hearing for VA purposes is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss). Although the Veteran's STRs are absent for hearing problems, his military personnel records document that he was enrolled in a hearing conservation program due to routine exposure to hazardous noise. In December 2011, the Veteran underwent a VA examination, in which the examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of military noise exposure. The examiner's only rationale was that the Veteran's entrance and separation examinations showed no significant threshold shifts in either ear. The examiner provided the exact same rationale for concluding that the Veteran's preexisting right ear hearing loss was not aggravated by service. The examiner also concluded that although the Veteran's tinnitus was at least as likely as not caused by his hearing loss, tinnitus was not related to service since hearing loss was not related to service. The Board finds that the December 2011 VA examiner's opinion is inadequate, as the examiner failed to address whether the Veteran's in-service noise exposure caused or aggravated his current hearing loss and tinnitus. Rather, the examiner's response went to the issue of in-service hearing loss. However, normal hearing at separation is not a bar to establishing entitlement to service connection for hearing loss. Hensley, 5 Vet. App. at 163-64. Furthermore, as discussed above, hazardous noise exposure is documented in the Veteran's personnel records. Therefore, the pertinent question for the examiner is whether the conceded hazardous noise exposure caused the Veteran's current left ear hearing loss and tinnitus, and aggravated the preexisting right ear hearing loss beyond the natural progression of the disease. As such, the Board finds that an addendum opinion is necessary for the proper adjudication of the Veteran's claims for hearing loss and tinnitus Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the same examiner who conducted the December 2011 audiology examination; or if unavailable, by another appropriate examiner. A new examination is not required, unless the examiner determines a new one is necessary. The examiner should address the following questions: a. For the Veteran's current left ear hearing loss and tinnitus, is it at least as likely as (i.e., a 50 percent probability or greater) that the disability is caused by the Veteran's documented in-service hazardous noise exposure. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. b. With respect to the Veteran's right ear hearing loss, is it at least as likely as not (i.e., a 50 percent probability or greater) that the disability was aggravated beyond the natural progression of the disease as a result of the Veteran's in-service noise exposure. Note: Aggravation means any increase in the severity of an existing disability that is not due to the natural progress of the disease or injury. A complete rationale for all opinion and conclusions reached should be provided. The examiner should consider the Veteran's noise history and find credible the Veteran's exposure to acoustic trauma in service. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the claim on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs