Citation Nr: 18144878 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-02 643 DATE: October 25, 2018 ORDER New and material evidence having been received, the claim for service connection for a left knee disorder is reopened and granted. New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Entitlement to service connection for a right knee disorder is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left ear hearing loss is dismissed. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a July 2003 rating decision, the RO denied the claims for service connection for a low back disorder and a left knee disorder. The Veteran was notified of the decision in August 2003, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the July 2003 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claims for service connection for a low back disorder and left knee disorder. 3. During the July 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for the issue of entitlement to service connection for left ear hearing loss. 4. The Veteran’s left knee disorder is related to his military service. 5. The Veteran’s right knee disorder is related to his military service. CONCLUSIONS OF LAW 1. The July 2003 rating decision denying service connection for a low back disorder and left knee disorder is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the July 2003 rating decision is new and material as to the claims for service connection for a low back disorder and left knee disorder, and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for withdrawal of the appeal for the issue of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. A right knee disorder was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 5. A left knee disorder was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to October 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that the Veteran contended in an August 2016 Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, that the July 2012 rating decision contains clear and unmistakable error (CUE). Under 38 C.F.R. § 3.105 (a), a prior final decision of the VA can be reversed or amended where the evidence establishes CUE in the decision; however, because the July 2012 rating decision is currently on appeal, it is not a final decision that could be subject to a CUE claim. See Link v. West, 12 Vet. App. 39, 44-45 (1998) (holding that CUE claim does not exist, as a matter of law, where there is no prior final RO decision); see also Best v. Brown, 10 Vet. App. 322, 325 (1997). Therefore, the issue of CUE in a rating decision is not on appeal before the Board. Neither the Veteran nor his representative has any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Left Ear Hearing Loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the July 2018 hearing, the Veteran indicated that he wanted to withdraw the appeal for the issue of entitlement to service connection for left ear hearing loss. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In the August 2003 rating decision, the RO denied the claims for service connection for a low back disorder and left knee disorder. In that decision, the RO noted that the Veteran’s service treatment records were unavailable for review and that there was no evidence that the Veteran had any left knee or low back disorder. The Veteran was notified of the July 2003 rating decision and of his appellate rights in a letter sent to him in August 2003; however, he did not submit a notice of disagreement with the decision. There was also no relevant evidence received within one year of the issuance of the decision. Therefore, the July 2003 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103 (2017). The Veteran submitted a request to reopen his claims for a low back disorder and left knee disorder in April 2011, along with a new claim for a right knee disorder. He indicated that his knee disorders were due to a fall from a helicopter in service, and he requested a new search for his service treatment records. In September 2014, the Veteran submitted statements from individuals who had served with him, all of whom reported that the Veteran fell from a helicopter on to the flight deck during service. VA treatment records dated in September 2014 also show that the Veteran had L4-L5 spondylosis, L5-S1 right paracentral disc herniation with compression of the right S1 nerve root, and L1-L2 central/left paracentral disc herniation with moderate central thecal sac stenosis. VA treatment records dated in October 2014 further indicate that he had degenerative changes of the left knee with chondromalacia and a degenerative tear of the lateral meniscus of the right knee. The September 2014 statements are new and material because they show that the Veteran had an in-service injury that may have resulted in his low back and knee disorders. The September 2014 and October 2014 treatment records are new and material because they show that the Veteran has current bilateral knee and low back disorders. As such, the Board finds that the evidence submitted since the final July 2003 rating decision relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claims for service connection for a low back and left knee disorder are reopened. However, as will be explained below, further development is necessary before the merits of the Veteran’s claim for a low back disorder can be addressed. Service Connection for Knee Disorders and Tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis and organic diseases of the nervous system are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis and organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran is not asserting, nor does the evidence show, that his claimed disorders resulted from engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (b) (2012) are not applicable. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right and Left Knee Disorders In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is entitled to service connection for right and left knee disorders. The Veteran has contended that his right and left knee disorders are due to a fall that he sustained in service. During the July 2018 hearing, the Veteran reported that he fell onto to the flight deck from a helicopter during a fast rope exercise. He reported that his knees buckled due to the fall and that he sustained torn ligaments. Due to damage to his left knee, he also underwent surgery during service. The Veteran reported that he had no injuries or abnormalities pertaining to his knees prior to service and that he did not incur any injuries to his knees following service. He indicated that he sought treatment for his knees in 1996. Prior to that time, the Veteran reported being in a downward spiral following service, including being homeless for periods of time. The Veteran’s complete service treatment records are unavailable; however, a December 1982 entrance examination does show that the Veteran was in good health and did not have any abnormalities pertaining to either of his knees. The Veteran also submitted numerous statements from individuals who served with him, which support his reports of sustaining a fall during service. In a September 2016 statement, S.S. (initials used to protect privacy), a Navy hospital corpsman who served from August 1985 to July 1987, reported providing treatment to the Veteran for ongoing pain that resulted from the fall. In a separate October 2016 statement, I.G., another Navy hospital corpsman, indicated that he witnessed the Veteran falling on the flight deck during a fast roping training exercise. He stated that he assisted the Veteran with his injuries and that the Veteran reported having pain in his back, neck, and knees. In a December 2016 statement, C.N., a pit sergeant and section chief who served in the Veteran’s unit, reported that the Veteran would seek treatment at the 3rd Bn 10th Marines Battalion Aid Station for his knees after physical training exercises. C.N. also reported that the Veteran was often placed on bed rest or light duty due to his chronic knee problems. Given the unavailability of the Veteran’s service treatment records, the normal December 1982 enlistment examination report, and the detailed lay statements from fellow servicemembers, the Board finds the Veteran’s testimony regarding his fall in service to be competent and credible. Moreover, as noted above, VA treatment records have documented that the Veteran has current left and right knee disorders. In the October 2014 record referenced above, the Veteran was noted to have degenerative changes of the left knee with chondromalacia and a degenerative tear of the lateral meniscus of the right knee. Thus, the remaining question is whether the Veteran’s right and left knee disorders were caused by or resulted from his military service. In this regard, there is favorable evidence. In an August 2014 VA treatment record, the examiner noted that the Veteran had a longstanding history of bilateral knee pain likely attributable to bilateral osteoarthritis related to his miliary service. In an October 2014 VA treatment record, the examiner noted that the Veteran had chondromalacia of the patella of the left knee with degenerative changes that are early and consistent with a fall from a height, as there were no other injuries in his history. The examiner also noted that the Veteran’s left knee was status post what appeared to be a lateral release which was also consistent with his reports of having left knee surgery in service. With regard to the right knee, the examiner noted that the Veteran had a degenerative tear in the lateral meniscus of the right knee which was also consistent with a remote injury. The Board notes that it is unclear whether the examiner had an opportunity to review the Veteran’s claims file; however, he did examine the Veteran and elicited a history from the Veteran regarding his knee disorders. Moreover, there is no evidence in the record suggesting that the Veteran’s knee disorders are not attributable to his military service. Therefore, the Board finds that the October 2014 opinion is probative, as it is based on an examination during which a history was solicited from the Veteran and is consistent with the other evidence of record which noted that the Veteran sustained a fall in service. Based on the foregoing, the Board concludes that the Veteran’s right and left knee disorders are related to his fall in service. There is medical evidence that establishes that the knee disorders are consistent with the Veteran’s reports of sustaining a fall and having knee surgery in service. The Veteran has also provided competent and credible reports of the fall and subsequent symptomatology. In addition, the Veteran’s entrance examination does not show any prior knee injury or abnormality, and there is no evidence that suggests that he sustained a knee injury following his separation from service. Accordingly, the Board concludes that service connection for right and left knee disorders are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The Veteran has contended that his tinnitus is due to his service. The Veteran’s DD-214, Certificate of Release or Discharge from Active Duty, noted that he served as a field artillery man. During the July 2018 hearing, the Veteran reported that he experienced acoustic trauma due to his exposure to live fire, chopper movements, and high explosives. He reported that he was sometimes provided with hearing protection, but that he did not have it all times. He also reported that he started noticing ringing in his ears during service and that he sought treatment. As noted above, the Veteran’s service treatment records are unavailable. However, the Veteran’s military personnel records confirm that he did serve as an artillery man. Therefore, the Board finds the Veteran’s reports of noise exposure to be competent and credible. The Veteran has also been noted to have recurrent tinnitus. See e.g. June 2012 VA examination; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is a type of disorder capable of lay observation and description). Thus, the remaining question is whether the Veteran’s tinnitus was caused by or the result of his military service. In this regard, there is both favorable and unfavorable evidence. The unfavorable evidence consists of the June 2012 VA examination report in which the examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or the result of military noise exposure. The examiner indicated that there was no evidence of tinnitus in the Veteran’s medical record; however, as noted above, the Veteran’s service records are unavailable for review. Thus, because the rationale is inadequate, the Board finds that the June 2012 VA examination has limited probative value. The favorable evidence consists of the Veteran’s statements that his tinnitus has been continuous since service. The Board finds that there is no reason to doubt him other than the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In weighing the evidence as the Board is charged with doing, see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998), the Board does note that there is no positive nexus opinion which finds that the Veteran’s tinnitus is related to service. However, as was previously noted, the Board finds the Veteran’s reports of continuous tinnitus to be competent and credible. Moreover, the unfavorable VA examiner’s opinion has limited probative value. In short, the Board finds that both the positive and negative evidence is of approximately equal evidentiary weight. Under these circumstances, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the Veteran. 38 U.S.C. § 5107 (b). In conclusion, the evidence is in relative equipoise with respect to the question of a nexus between the Veteran’s tinnitus and his military service. 38 C.F.R. § 3.303 (d). Resolving reasonable doubt in the Veteran’s favor, the claim for tinnitus is granted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND As noted above, the Veteran has submitted evidence of an in-service fall, which he believes caused his current low back disorder. VA treatment records also show that he has current diagnoses. Given the Veteran’s reports of his in-service injury, along with his current diagnoses pertaining to his back, a remand is necessary to obtain an examination and opinion which addresses the nature and etiology of the Veteran’s current back disorder. In addition, the Veteran reported that he received treatment for his back at the University of Miami. On remand, these records should be located and associated with the claims file. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back disorder. Specifically, the AOJ should request that the Veteran provide information about any treatment he received at the University of Miami. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that any current back disorder manifested during or is otherwise causally or etiologically related to the Veteran’s military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should note that the Veteran’s service treatment records are unavailable and that he is claiming that his back disorder resulted from a fall on the flight deck during service. There are lay statements attesting to the fall in service. (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 favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If it is deficient in any manner, the AOJ should implement corrective procedures. The AOJ should also conduct any other development as may be indicated by a response received as a consequence of the preceding actions. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel