Citation Nr: 1752912 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-31 376A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a left knee disability, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a hearing loss disability, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for tinnitus, and if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for bilateral pes planus, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to April 1979 and from August 1986 to January 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that rating decision, the RO confirmed and continued previously denied claims of service connection for degenerative joint disease of the left knee, tinnitus, bilateral hearing loss and bilateral pes planus. Although it is apparent that the RO reopened the claims and then denied them on the merits, the Board must still review the RO's preliminary decision in that regard. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in June 2015. A transcript of his testimony is associated with the claims file. In January 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The reopened claims of service connection for hearing loss, a left knee disability, and bilateral pes planus, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 1991 rating decision, the RO denied entitlement to service connection for a left knee disability and bilateral hearing loss; and, the Veteran did not appeal that determination. 2. In a June 2007 rating decision, the RO denied entitlement to service connection for tinnitus, bilateral pes planus; and, denied service connection for hearing loss because new and material evidence had not been received sufficient to reopen that previously denied claim. 2. Presuming its credibility, the evidence associated with the record since May 1991 relates to an unestablished fact necessary to substantiate the claim of service connection for a left knee disability, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for a left knee disability. 3. Presuming its credibility, the evidence associated with the record since June 2007 relates to an unestablished fact necessary to substantiate the claims of service connection for hearing loss, tinnitus, and bilateral pes planus, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of service connection for hearing loss, tinnitus, and bilateral pes planus. 4. The competent and probative evidence is in relative equipoise as to whether the Veteran's tinnitus had its onset during service. CONCLUSIONS OF LAW 1. The May 1991 rating decision denying service connection for a left knee disability and bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 2. The June 2007 rating decision denying service connection for tinnitus, bilateral pes planus; and, hearing loss on a new and material basis, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017). 3. New and material evidence has been received sufficient to reopen the claims of service connection for a left knee disability, bilateral hearing loss, tinnitus, and bilateral pes planus. 38 U.S.C § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. Resolving all doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A 5107(b) (2012), 38 C F R §§ 3 102, 3 159, 3 303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. The May 1991 and June 2007 rating decisions are final because the Veteran did not timely appeal those determinations. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In addition, no evidence that was relevant to the issues was filed with VA during the appeal period(s), thus, new and material evidence was not submitted so as to vitiate the finality of those decisions. 38 C.F.R. § 3.156(b) (2017). Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C § 5108 (2012); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. 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. 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view 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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As noted above, the RO's May 1991 and June 2007 rating decisions are final. Since the May 1991 rating decision, additional evidence pertinent to the claim of service connection for a left knee disability has been added to the claims file, including VA examination reports of the left knee in April 2011 and October 2015; the Veteran's hearing testimony from June 2015 and January 2017; and, VA outpatient treatment records, including a March 2010 MRI of the knee. Presuming its credibility, this evidence is new and material. The evidence was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for a left knee disability. Likewise, since June 2007, additional evidence pertinent to the claims of service connection for tinnitus, hearing loss and bilateral pes planus has been added to the claims file, including VA audiological and feet examination reports in April 2011 and October 2015; the Veteran's hearing testimony from June 2015 and January 2017; and, VA outpatient treatment records. Presuming its credibility, this evidence is new and material. The evidence was not previously of record and raises a reasonable possibility of substantiating the claims of service connection for tinnitus, hearing loss, and bilateral pes planus. As the new evidence addresses the reason for the prior denials, it is material and the claims may be reopened. The reopened claims of service connection for hearing loss, a left knee disability, and bilateral pes planus are addressed in the REMAND which follows. II. Service Connection - Tinnitus Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2017). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although the Veteran asserts that he first noticed tinnitus in service, he did not report that to an examiner at discharge, and the Veteran's discharge examination is negative for findings or diagnoses of tinnitus. However, the service treatment records (STRs) do reflect that the Veteran's hearing was tested because he was routinely exposed to hazardous noise during service. Accordingly, acoustic trauma in service is conceded. A VA examiner in April 2011 opined that the Veteran's tinnitus was a symptom of his hearing loss; and, that the Veteran's hearing loss was less likely than not a result of in-service noise exposure. The examiner reasoned that no hearing loss or threshold shift in hearing was noted during active duty and research does not support late onset hearing loss due to noise exposure. The examiner also noted that post-service occupational noise exposure and the use of ototoxic medications may be factors in hearing loss and tinnitus. First, the April 2011 VA examiner did not explain what ototoxic medication was used by the Veteran that could have caused his hearing loss and tinnitus. Additionally, the opinion refers to post-service occupational noise exposure as being a potential cause of the Veteran's tinnitus and hearing loss; however, at his RO hearing in June 2015, the Veteran testified that on a scale of 1 to 10, with 10 being the level of military noise exposure, his post-service noise exposure was only a 2. See June 2015 Hearing Transcript, p. 24. Thus, according to the Veteran, his post-service noise exposure was far less than the documented in-service hazardous noise exposure. Moreover, the April 2011 VA examiner did not consider the Veteran's competent statements regarding the onset of his tinnitus. By contrast, a private examiner noted the Veteran's self-reported history of an onset of tinnitus in 1987, and his in-service noise exposure; and, opined on this basis alone, that the Veteran's tinnitus was 100 percent due to the Veteran's in-service exposure to high frequency noise regularly during his duties as a power generator operator in service. The Veteran is competent to report observable symptoms such as ringing in the ears. These are symptoms capable of lay observation, and there is no reason to doubt the Veteran's credibility in this regard. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. There is a current diagnosis of tinnitus, objective evidence of hazardous noise exposure during service, and competent and credible evidence that the Veteran first noticed ringing in his ears during service. As noted above, the Board finds no reason to doubt the Veteran's competent statements regarding the onset of his tinnitus; and, while he may not have reported tinnitus at the time of discharge, it appears from the Veteran's statements that he at least noticed ringing in his ears at that time, and ever since. This, combined with the doctor's October 2015 opinion that the Veteran's tinnitus was most likely caused by noise exposure in the military, provides the evidence necessary to decide the claim. The doctor noted that repeated noise exposure in the military produces tinnitus; and, the evidence of record does not suggest that the Veteran was otherwise exposed to any significant acoustic trauma after service. The evidence of record, at the very least, is in equipoise and, accordingly, service connection for tinnitus is warranted. ORDER New and material evidence to reopen the claim of service connection for tinnitus has been received; service connection for tinnitus is granted. New and material evidence to reopen the claim of service connection for hearing loss has been received; to this limited extent only, the appeal is granted. New and material evidence to reopen the claim of service connection for a left knee disability has been received; to this limited extent only, the appeal is granted. New and material evidence to reopen the claim of service connection for bilateral pes planus has been received; to this limited extent only, the appeal is granted. REMAND The Veteran seeks service connection for a hearing loss disability, a left knee disability, and for bilateral pes planus. Although the Board finds the Veteran's assertions regarding the onset of his tinnitus and hearing loss to be credible, the hearing loss claim differs from the tinnitus claim because hearing loss can be objectively confirmed by audiologic testing, whereas tinnitus cannot. Because the Veteran's audiometric testing at discharge revealed normal hearing, a competent medical nexus opinion is necessary to determine the likely etiology of the current hearing loss. The April 2011 examiner opined that current hearing loss was less likely than not related to in-service noise exposure because research does not support late onset hearing loss due to noise exposure. The examiner also suspected that occupational post-service noise exposure and ototoxic medication could have played a part in the Veteran's hearing loss. However, the examiner did not explain what ototoxic medication the Veteran had taken, and the examiner did not consider the Veteran's hearing testimony indicating that his post-service occupational noise exposure was only a "2" on a scale of 1-10 whereas his in-service noise exposure was a "10." By contrast, a private examiner in October 2015 opined that the Veteran's hearing loss was 100 percent related to in-service noise exposure; however, the only rationale provided was that he reported hearing loss since service and was exposed to high frequency noise while operating power generators. As noted above, the objective findings do not show a hearing loss disability during service. Nevertheless, the Board finds it notable that the Veteran filed a claim of service connection for hearing loss in 1991, only a few years following service discharge, and his hearing testimony reflects that he began receiving VA treatment around the same time that he filed his initial claim. Accordingly, another opinion is necessary to decide the claim. Regarding the left knee, the Veteran has consistently reported left knee pain since service; and, like the hearing loss, he submitted his initial claim of service connection for a left knee disability in 1991, just a few years following discharge. The April 2011 VA examiner opined that the Veteran's left knee degenerative joint disease was less likely than not related to his in-service knee injury; however, a private examiner in October 2015 indicated that the Veteran's in-service injury may have been a ligament injury; and, that his current knee disability is related to that injury. However, the private examiner provided no rationale for that opinion. Accordingly, another examination is necessary to decide the claim. Finally, regarding the bilateral pes planus, the Veteran's enlistment examination notes pre-existing bilateral pes planus which was asymptomatic. The Veteran complained of foot pain during service, and was treated for a left foot callous during service. He has reported that he has suffered from foot pain ever since service. Because the Veteran's pes planus was asymptomatic prior to service, and he has reported foot pain ever since service, another examination is necessary to determine whether there was an increase in disability (a permanent worsening) of the pes planus during service, or as a result of service. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA records from November 2015 onward. 2. Schedule the Veteran for a VA examination by an authorized audiologist with appropriate expertise to determine the nature and etiology of the bilateral hearing loss. The entire record must be reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the entire record, the examiner should provide an opinion as to whether any current hearing loss, at least as likely as not (a probability of 50 percent or greater) began in or is related to the Veteran's in-service acoustic trauma. In this regard, the examiner's attention is directed to the Veteran's assertions that he first noticed a hearing loss during service, that he filed a claim for service connection for hearing loss in 1991, only a few years after service discharge; and, that he was not exposed to any significant post-service occupational noise. Please provide a complete explanation for the opinion. In addition, the examiner should be mindful that in-service noise exposure is conceded; and, even if a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. Schedule the Veteran for an orthopedic examination to assess the current nature, extent, and severity of the Veteran's left knee disability and bilateral pes planus. All indicated tests should be completed, and the examiner is asked to review the entire claims file, including the Veteran's reports of left knee pain in a 1991 claim form, and the March 2010 knee MRI. The examiner should opine as to whether the Veteran's current left knee disability is related to the in-service left knee injury, taking into consideration the Veteran's competent and credible reports of left knee pain since service. Additionally, the examiner should opine as to whether the Veteran's pre-existing asymptomatic bilateral pes planus underwent an increase in disability during service; and, if so, whether such increase was, clearly and unmistakably, due to the natural progression of the disease. In so opining, the examiner should consider the Veteran's reports of foot pain in service and his reports of foot pain ever since service. 4. Ensure that the information provided by the examiner(s) satisfies the criteria above and, if not, return the report(s) as insufficient. Then, readjudicate the claims. If any benefit sought on appeal remains denied, provide the appellant with an Supplemental Statement of the Case, and an appropriate period of time to respond before the case is returned to the Board. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs