Citation Nr: 18146968 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-35 376 DATE: November 2, 2018 ORDER New and material evidence not having been received, the request to reopen the claim for service connection for right knee condition is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A claim for service connection for right knee condition was denied by an October 2000 rating decision that was not appealed. New and material evidence was not received within the year after the Veteran was notified of the October 2000 decision. 2. The evidence received subsequent to the October 2000 rating decision is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for right knee condition, does not relate to an unestablished fact necessary to substantiate the claim for service connection, and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran does not have a right ear hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. CONCLUSIONS OF LAW 1. The October 2000 rating decision which denied a claim for service connection for right knee condition is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received, and the claim of entitlement to service connection for right knee condition is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right ear hearing loss disability are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to August 2000. The Veteran testified before the undersigned Veterans Law Judge during a February 2017 Central Office hearing; a transcript is of record. Although the Veteran initially filed a claim for PTSD, the Veteran has been diagnosed with adjustment disorder. To afford the Veteran the broadest possible scope for his claim of entitlement to a psychiatric disorder, the issue has been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and PTSD. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). New and Material Evidence 1. Right knee condition In a decision dated in October 2000, the RO denied the Veteran’s claim for service connection for right knee condition. The Veteran did not appeal the decision. 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. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New and material evidence was not received within the year after the Veteran was notified of the October 2000 decision. Thus, this decision is final. The Veteran’s most recent application to reopen his claim of service connection for right knee condition was received in February 2013. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 Board notes that by a January 2013 rating decision subsequent to the October 2000 rating decision, the RO declined to reopen the Veteran’s claim of entitlement to service connection for bilateral knee condition. The Veteran filed another application for service connection for bilateral knee condition in February 2013. In an April 2014 rating decision, the RO reopened the claim of service connection for bilateral knee condition, granted service connection for left knee condition, and denied service connection for right knee condition. On appeal, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the previously denied claim for service connection for right knee condition. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The October 2000 rating decision denied service connection for right knee condition on the basis that evidence did not show that the Veteran has a current diagnosis of a right knee disability. The rating decision notes that the Veteran’s service treatment records show that in July 1980, the Veteran sustained bruises on both knees when he landed on rocks, that in August 1983, he was treated for pain behind the right knee as the result of a pulled hamstring muscle, and that one examiner noted “airborne knees” without definitive diagnosis of a right knee condition. Moreover, the RO found no current diagnosis of a right knee disability based on a result of June 2000 VA examination. During the June 2000 VA examination, the Veteran reported bilateral knee pain and popping with prolonged walking, running, or physical training exercises, but was found to have normal posture and gait, a full range of motion without pain in both knees, and no cracking, popping, heat, redness, swelling, effusion, instability, or weakness. The x-rays of the right knee revealed no abnormality. The June 2000 VA examiner did not find any pathology for the right knee as well as for the left knee. Based on the grounds stated for the denial of service connection for right knee disability in the October 2000 decision, new and material evidence would consist of competent evidence of a current diagnosis of a right knee disability. In this regard, additional evidence received since the October 2000 decision includes medical evidence; however, the new evidence does not include competent evidence of a current right knee disability. The Veteran underwent a VA examination in March 2014 for his bilateral knee condition. At this examination, an x-ray was taken and it was found that the Veteran has patellofemoral syndrome in his left knee, but no pathology was found for his right knee. The medical treatment records since that time through November 2017 are of record, but no disability or treatment for his right knee are indicated. As such, the Board finds that although the evidence received since the October 2000 rating decision is new, it is cumulative or redundant and not material, and thus, it does not serve to reopen the claim. Service Connection 2. Service connection for right ear hearing loss Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA has specifically defined the term “disability” for service connection claims involving impaired hearing. 38 C.F.R. § 3.385. “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Considering all the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right ear hearing loss disability. Although the evidence of record confirms that the Veteran likely experienced exposure to noise throughout his service, he has not presented evidence of a current right ear hearing loss disability during the pendency of this appeal. Specifically, the Veteran was provided a VA audiological examination in March 2014, and audiometric testing conducted at that time yielded the following results: Frequency (Hz) 500 1000 2000 3000 4000 Right Ear (dB) 10 10 10 15 15 Speech discrimination testing using the Maryland CNC test was 100 percent in the right ear. In this regard, the right ear puretone testing or speech discrimination scores recorded during VA examination in March 2014 do not meet the criteria as outlined in 38 C.F.R. § 3.385. In other words, none of the puretone thresholds was 26 decibels or greater, and the speech recognition score was not less than 94 percent. Analysis of the file indicates that, despite in-service acoustic trauma, the Veteran does not have hearing impairment of the right ear meeting the criteria of 38 C.F.R. § 3.385 or during his service, or at any point during the pendency of his claim. Clearly, the Veteran is competent to testify to those things that come to him through his senses, such as the occurrence of acoustic trauma or his experiencing of diminished auditory acuity, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), and his account thereof is competent and credible. However, a prerequisite for entitlement to service connection, regardless of engagement in combat against the enemy, is a showing of current disability and the record fails to identify hearing loss of the Veteran’s right ear for VA purposes. The Veteran lacks the required medical education and training, such as to render competent any opinion or statement of his to the effect that his right ear hearing loss is to a degree that meets the requisites of 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). There is also insufficient evidence of a right ear hearing loss disability for VA purposes at any point during the claim period or shortly before the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) and Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In view of the foregoing, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran meets the criteria for a current diagnosis of a right ear hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. Since the Veteran’s right ear hearing loss does not meet the criteria of 38 C.F.R. § 3.385, his claim cannot succeed. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim advanced must be denied. 38 U.S.C. § 5107 (b); see also, Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran underwent a VA examination in March 2014 for his psychiatric condition. The symptoms observed were depressed mood, chronic sleep impairment, and disturbance of motivation and mood. The examiner concluded that the Veteran’s condition does not meet the DSM-5 criteria for PTSD, but provided a diagnosis of adjustment disorder with disturbance of emotions and conduct. Even though the examiner considered the Veteran’s reported traumatic experiences in service, the examiner did not provide any opinion concerning whether the Veteran’s adjustment disorder is related to his active service. Upon remand, an addendum opinion for the nexus between his acquired psychiatric disorder and service must be obtained. 2. The issue of entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. The Veteran was diagnosed with sleep apnea in 2013. As noted above in relation with the psychiatric claim, the Veteran complains of chronic sleep impairment as the result of his psychiatric disability. Upon remand, a medical opinion on whether the Veteran’s sleep apnea is related to his psychiatric disorder as well as an opinion on whether his sleep apnea is related to his service or to any of his service-connected disabilities must be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All attempts to obtain records should be documented and the Veteran may be asked to assist in identifying and obtaining any pertinent records as needed. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s acquired psychiatric disorder is at least as likely as not related to his active service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must opine: whether it is at least as likely as not related to an in-service injury, event, or disease; and whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by an acquired psychiatric disorder. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel