Citation Nr: 18147850 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-18 331 DATE: November 7, 2018 ORDER As new and material evidence has not been presented to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss, the appeal is denied. As new and material evidence has not been presented to reopen a previously denied claim for entitlement to service connection for a left knee disorder, to include as secondary to posttraumatic arthritis of the right knee, the appeal is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for cephalgia, to include as secondary to posttraumatic arthritis of the right knee, is remanded. Entitlement to service connection for a cervicothoracic spine disorder, to include as secondary to posttraumatic arthritis of the right knee, is remanded. Entitlement to service connection for a thoracic spine disorder (also claimed as a low back condition), to include as secondary to posttraumatic arthritis of the right knee is, remanded. Entitlement to service connection for a bilateral hip condition, to include as secondary to posttraumatic arthritis of the right knee, is remanded. Entitlement to service connection for left sciatic radicular pain, to include as secondary to posttraumatic arthritis of the right knee, is remanded. Entitlement to service connection for carpel tunnel syndrome of the left wrist is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating for posttraumatic arthritis of the right knee, rated as 20 percent disabling, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for bilateral hearing loss, was denied in a November 2006 Board decision; the Veteran did not appeal the decision. 2. Evidence received since the November 2006 Board decision is either cumulative or redundant, and does not relate to an unestablished fact necessary to establish the claim, or raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran’s claim of entitlement to service connection for a left knee disorder, to include as secondary to posttraumatic arthritis of the right knee, was denied in a December 2008 Board decision; the Veteran did not appeal the decision. 4. Evidence received since the December 2008 Board decision is either cumulative or redundant, and does not relate to an unestablished fact necessary to establish the claim, or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder. 5. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The November 2006 Board decision denied the claim of entitlement to service connection for bilateral hearing loss; and no new and material evidence has been received to reopen this matter. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1100. 2. The December 2008 Board decision denied the claim of entitlement to service connection for a left knee disorder, to include as secondary to posttraumatic arthritis of the right knee; and no new and material evidence has been received to reopen this matter. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1100. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1995 to November 1997. This matter comes before the Board on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. New and Material Evidence Generally, a claim which has been denied in a Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Prinicipi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the “presumption of credibility” doctrine continues to be precedent). The presumption is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). By way of brief procedural history, the RO denied the Veteran’s initial claim for service connection for bilateral hearing loss and a left leg disorder, to include as secondary to posttraumatic arthritis of the right knee, in a June 2003 rating decision. The Veteran appealed the rating decision to the Board and in a November 2006 decision, the Board determined that the Veteran did not have bilateral hearing loss according to VA standards pursuant to 38 C.F.R. § 3.385. The issue of service connection for a left knee disorder, to include as secondary to posttraumatic arthritis of the right knee, was remanded for further development. In a December 2008 decision, the Board denied the service connection claim by finding that the Veteran’s left knee disorder was not caused by or aggravated beyond natural progression by his posttraumatic arthritis of the right knee. The Veteran did not appeal the November 2006 and December 2008 Board decisions; accordingly, the decisions are final. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1100. The relevant evidence added to the record since the November 2006 and December 2008 Board decisions (last final denials) include a statement from P. S., dated June 2007 and submitted in January 2015, asserting that P. S. and the Veteran were friends and colleagues for many years. P. S. asserted that the Veteran’s left knee would occasionally give out and that he and the Veteran worked on the second floor and the Veteran had difficulty climbing up/down the stairs. This lay evidence is not material because it is redundant and cumulative of lay evidence previously considered pertaining to the condition of the Veteran’s left knee since separation from service. In a June 2012 private treatment letter, Dr. P. Y. asserted that the Veteran was service connected for bilateral hearing loss, rated as noncompensable. The treatment letter appeared incomplete, as a page was missing from the letter. This evidence is not material because it does not show that the Veteran has bilateral hearing loss according to VA standards, in addition to being factually inaccurate. The Veteran is not service connected for bilateral hearing loss. Regarding the Veteran’s left knee disorder, in the June 2012 private treatment letter, Dr. P. Y. diagnosed the Veteran with “extension of service connected condition of the left knee”. Dr. P. Y. asserted that the Veteran was service connected for a left knee disorder, rated as noncompensable. Dr. P. Y. opined that the Veteran’s left knee disorder worsened since “service connection” and that his left knee symptoms mirror his right knee symptoms; including pain, swelling and instability. A May 2012 VA treatment record indicated that the Veteran reported chronic left knee pain; x-ray imaging was normal. This medical evidence is not material as it is redundant and cumulative of evidence previously considered pertaining to the condition of the Veteran’s left knee disorder. Furthermore, the medical evidence is not material because it does not tend to show that the Veteran’s left knee disorder was caused by or aggravated beyond natural progression by his posttraumatic arthritis of the right knee. The relevant evidence also includes a February 2013 VA Hearing Loss and Tinnitus examination report indicating that the Veteran had normal bilateral hearing. The audiometric findings, in decibels, read: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 15 20 LEFT 15 20 20 15 15 The Veteran’s speech recognition scores were 94 percent for the right ear and 96 percent for the left ear. This medical evidence is not material because it does not tend to show that the Veteran has bilateral hearing loss according to VA standards as provided by 38 C.F.R. § 3.385. Thus, the lay and medical evidence submitted since the November 2006 and December 2008 Board decisions (last final denials) does not raise a reasonable possibility of substantiating the claim and is insufficient to reopen the claim of service connection for bilateral hearing loss and a left knee disorder, to include as secondary to posttraumatic arthritis of the right knee. 38 C.F.R. § 3.156(a). As such, the Board finds that new and material evidence has not been presented to reopen the previously denied claim and the appeals are denied. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Generally, to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.§ 5107 (b); 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension The Veteran contends that he has hypertension because of his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s STRs did not indicate that the Veteran was treated for or diagnosed with hypertension in service. During active duty, his blood pressure readings generally revealed systolic pressure below 160 and diastolic pressure below 100. STRs did not indicate the Veteran was prescribed medication for hypertension. The Veteran’s separation examination report is not included in the evidence of record. His post-service medical records indicated that on VA outpatient treatment in March 2011, the Veteran reported that he was “on blood pressure medication until 2009 when [he] lost [his] insurance”. A May 2011 VA treatment record indicated that the Veteran was educated on lifestyle changes that “may help contribute to improved control of his hypertension”. A May 2012 VA treatment record indicated that the Veteran was diagnosed with hypertension and smoking abuse. A June 2012 private treatment letter from Dr. W. A., the Veteran’s private psychologist, indicated that the Veteran reported being diagnosed with hypertension secondary to his military service. In light of the foregoing, the Board finds that service connection for hypertension is not warranted. In so finding, the Board considers the Veteran’s STRs which do not indicate that the Veteran was treated for or diagnosed with hypertension during active duty. There is no indication that he was diagnosed with hypertension at separation. Furthermore, the clinical evidence of record indicates that the Veteran was treated for hypertension as early as May 2011, during which he was counseled about lifestyle changes that may improve his hypertension. Clinical evidence indicates that the Veteran did not exhibit symptoms of, or was diagnosed with hypertension until many years after his separation from military service. There is no persuasive evidence that the Veteran’s hypertension manifested to a compensable degree within the one-year presumptive period after separation from service. There is no medical evidence or credible lay evidence of symptoms in service and ever since service. Therefore, the Board finds that the evidence of record preponderates against presumptive service connection or continuity of symptomatology. With regards to the Veteran’s assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The June 2012 private treatment letter indicates that the Veteran contends that he was diagnosed with hypertension secondary to service. However, the Veteran does not possess the medical expertise or specialized knowledge to provide a probative opinion regarding the nexus/relationship between his hypertension and military service. Moreover, the clinical evidence is at variance with the Veteran’s lay assertion as the clinical evidence does not indicate that the Veteran’s hypertension is related to service. Namely, the Veteran was not treated for or diagnosed with hypertension during service and the condition did not manifest to a compensable degree during the presumptive period after separation from service. For the foregoing reasons, the Board finds that service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1.Entitlement to service connection for cephalgia, a cervicothoracic spine disorder, a thoracic spine disorder (also claimed as a low back condition), a bilateral hip condition, and left sciatic radicular pain, to include as secondary to posttraumatic arthritis of the right knee, is remanded. The Veteran contends that he has cephalgia, a cervicothoracic spine disorder, a thoracic spine disorder (also claimed as a low back condition), a bilateral hip condition, and left sciatic radicular pain because of his service-connected posttraumatic arthritis of the right knee. In a June 2012 private treatment letter, Dr. P. Y. asserted that the Veteran was diagnosed with cephalgia secondary to cervical spondylosis; degenerative joint disease and spondylosis of the cervical and cervicothoracic regions; chronic thoracic myalgia concomitant with degenerative joint disease of the thoracic spine; well advanced degenerative joint disease, chronic discopathy and osteoarthritis of the lumbar spine, emphasis on the lumbosacral region and discogenic left sciatic radicular pain. Dr. P. Y. did not provide a bilateral hip diagnosis. Dr. P. Y. rendered a positive medical opinion regarding most of the Veteran’s claimed conditions. Again, Dr. P. Y. did not opine on the Veteran’s claimed bilateral hip condition. In Dr. P. Y’s judgment, it is more likely than not that the Veteran’s cephalgia, cervicothoracic spine disorder, and thoracic spine disorder are “directly and causally related to injury to his knees and involvement of the spine. . . [due to] chronic and constant adaptation and compensation for altered gait and weight shifting.” Regarding the Veteran’s left sciatic pain, Dr. P. Y. opined that the disorder is “directly and causally related as a progression to the demonstrated discopathy of the Veteran’s service-connected low back condition.” The opinion provided is inadequate as it is not supported by a sufficient rationale. In February 2013, the Veteran was afforded several VA examinations. The examiner did not complete the examinations involving the claimed disorders. The examiner’s stated rationale was that “there [was] no documented medical evidence of a chronic disability related to the [Veteran’s] right knee.” The examiner then provided negative nexus opinions regarding each claimed disorder on appeal. As the Veteran is service-connected for a right knee disability and the Veteran contends that his right knee disability caused his cephalgia, cervicothoracic spine disorder, thoracic spine disorder (also claimed as a low back condition), bilateral hip condition, and left sciatic radicular pain, and the February 2013 VA examinations were not completed, new VA examinations are required to decide the appeal. 2. Entitlement to service connection for carpel tunnel syndrome of the left wrist is remanded. A June 2012 private treatment letter from Dr. W. A. indicated that the Veteran reported injuring his left arm while running during active duty. The Veteran reported that he was treated for a left arm injury in service and continued to experience “shooting pains” when he bent his left arm at various angles. The Veteran also reported a history of suspected carpel tunnel syndrome associated with his left arm condition. In February 2013, the Veteran was scheduled for a VA Peripheral Nerves Conditions examination. However, as discussed above, the examiner did not complete the examination. As such, VA will afford the Veteran a new examination. 3. Entitlement to service connection for PTSD is remanded. A March 2011 VA treatment record indicated that the Veteran had a negative PTSD screen. A June 2012 private treatment note from Dr. W. A. indicated that the Veteran was diagnosed with PTSD and bipolar disorder, not otherwise specified (NOS). Dr. W. A. opined that the Veteran’s “symptoms are as likely as not service-connected”. The treatment record, however, did not include a discussion of the Veteran’s in-service stressors. In a July 2012 Statement in Support of Claim for Service Connection for PTSD, the Veteran asserted that he served with “ ‘C’ Company 1/4 …1st Marine Division, Assault Section” from February 1996 to August 1996 and was assigned to the USS Tarawa. The Veteran asserted that he was assigned to tactical recovery of aircraft and personnel (TRAP) missions, recovered Navy Seals from a downed helicopter and was under enemy fire. In a July 2013 Statement in Support of Claim, the Veteran reiterated his assertion that he “provided support for a rescue of a downed helicopter south of Doha during May-June 1968”. The Board notes that the Veteran served on active duty from July 1995 to November 1997. The Veteran also asserted that he provided ground security for 4-6 Navy Seals, retrieved bodies (one was charred black) and engaged in small arms combat in a “hot [landing zone] LZ”. The record evidence indicates that the Veteran’s military occupational specialty (MOS) was Rifleman and that he was deployed on the USS Tarawa from April 1996 to October 1996. The record evidence did not indicate that the claimed in-service stressors were developed and the Veteran was not afforded a VA psychiatric examination. As such, further development is needed, including a VA examination, to decide the appeal. 4. Entitlement to an increased rating for posttraumatic arthritis of the right knee, rated as 20 percent disabling, is remanded. The Veteran was last provided a VA examination in conjunction with his service-connected posttraumatic arthritis of the right knee in February 2013. The Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In addition, as relevant to the present case, the Court stated in Correia that knees were “undoubtedly weight-bearing.” Id. A review of the claims file reveals that the prior VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. It also does not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a physician (M.D.) to determine the nature and etiology of any: cephalgia, cervicothoracic spine disorder, thoracic spine disorder (also claimed as a low back condition), bilateral hip condition, and left sciatic radicular pain. The physician must opine whether it is at least as likely as not that the Veteran’s: (a) Cephalgia, variously diagnosed as cephalgia secondary to cervical spondylosis; (b) Cervicothoracic spine disorder, variously diagnosed as degenerative joint disease and spondylosis of the cervical and cervicothoracic regions; (c) Thoracic spine disorder (also claimed as a low back condition), variously diagnosed as chronic thoracic myalgia concomitant with degenerative joint disease of the thoracic spine; including the lumbar spine related diagnosis of well advanced degenerative joint disease, chronic discopathy and osteoarthritis of the lumbar spine, emphasis on the lumbosacral region; (d) Bilateral hip condition; although the VA examiner did not complete the February 2013 Hip and Thigh Conditions examination, an x-ray suggested an inequality of leg length with the right leg being shorter by an estimated 9 mm then the left; AND (e) Left sciatic radicular pain, variously diagnosed as discogenic left sciatic radicular pain, ARE (1) proximately due to the Veteran’s service-connected posttraumatic arthritis of the right knee, OR (2) aggravated beyond natural progression by the service-connected right knee disability due to altered gait/body mechanics. In so opining, please discuss the June 2012 private treatment letter by Dr. P. Y. regarding the Veteran’s various disorders. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any carpel tunnel syndrome of the left wrist. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 3. Attempt to corroborate the Veteran’s in-service stressors, including that he was assigned to the ‘C’ Company, 1st Battalion, 4th Marine, 1st Marine Division, Assault Section from February 1996 to August 1996, deployed to the USS Tarawa, conducted TRAP missions, rescued Navy Seals from a downed helicopter (south of Doha, Qatar), retrieved bodies and was under enemy fire. See July 2012 and July 2013 Statements in Support of Claim. If more details are needed, contact the Veteran to request the information. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, to include bipolar disorder, NOS, as indicated by the June 2012 private treatment letter from Dr. W. A., the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 5. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected posttraumatic arthritis of the right knee. (a) 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. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees and on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel