Citation Nr: 18148481 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-19 945A DATE: November 7, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee condition is reopened. New and material evidence having been received, the claim of entitlement to service connection for a back condition is reopened. New and material evidence having been received, the claim of entitlement to service connection for bronchitis and a lung condition is reopened. Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for a kidney condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for bronchitis and a lung condition is remanded. Entitlement to service connection for a bilateral eye condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a blood clot is remanded. FINDINGS OF FACT 1. Service connection for a bilateral knee disorder was denied in an unappealed June 1993 rating decision. 2. Evidence received since the June 1993 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim. 3. Service connection for a back disorder was denied in an unappealed June 1993 rating decision. 4. Evidence received since the June 1993 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim. 5. Tin a January 1996 decision, the Board denied the Veteran’s request to reopen a previously denied claim for entitlement to service connection for bronchitis and a lung condition. 6. Evidence received since the January 1996 decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claims. 7. The Veteran does not have a current diagnosis of sinusitis and did not manifest a diagnosis during the pendency of the appeal. CONCLUSIONS OF LAW 1. The June 1993 rating decision that denied service connection for a bilateral knee condition is final. 38 U.S.C. § 4005 (1988); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. The criteria for reopening the Veteran’s previously denied claim for service connection for a bilateral knee condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The June 1993 rating decision that denied service connection for a back condition is final. 38 U.S.C. § 4005 (1988); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 4. The criteria for reopening the Veteran’s previously denied claim for service connection for a back condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. A January 1996 Board decision that declined to reopen the previously denied claim for service connection for bronchitis and a lung condition is final. 38 U.S.C. § 7104 (1994); 38 C.F.R. § 20.1100 (1995). 6. The criteria for reopening the Veteran’s previously denied claim for service connection for bronchitis and a lung condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1953 to April 1955. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office. The Veteran testified at a personal hearing before the Board in June 2017, and a transcript of the hearing is of record. These matters were previously before the Board, and, in October 2017, the Board remanded them for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. The Board notes that the issues of entitlement to service connection for a kidney disorder and a bilateral eye condition were originally characterized as whether new and material evidence was submitted to reopen previously denied claims, but a review of the record indicates that no decision denying entitlement to service connection for these disorders became final before the Veteran appealed. As such, the Board has recharacterized the claims accordingly. In an October 2018 written statement, the Veteran requested an evaluation in excess of 80 percent for pension. It is not clear what benefit the Veteran is referring to. In any event, a claim on the appropriate form must be filed to initiate action. The Veteran should discuss this matter with his representative and take appropriate actions. New and Material Evidence The Veteran contends that he has submitted new and material evidence sufficient to reopen claims for entitlement to service connection for multiple disabilities that were previously denied. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee condition. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for a bilateral knee condition. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for a bilateral knee condition is reopened. The RO originally denied the Veteran service connection for bilateral knee pain in June 1993. The decision became final after the Veteran failed to submit additional evidence or file a notice of disagreement within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in March 2011, the RO denied the Veteran’s claim to reopen. The Veteran appealed. In the June 1993 rating decision, the RO denied the Veteran’s claim, because, in pertinent part, the Veteran could not establish an in-service incurrence to prove that his condition was incurred in or caused by a period of service. Nevertheless, the medical evidence before the RO at the time did not contain a competent diagnosis of a bilateral knee condition. Medical evidence submitted since the June 1993 rating decision includes an October 2017 treatment record that indicates that the Veteran has a current diagnosis of osteoarthritis of the knees. Therefore, the evidence submitted since the last final denial is new and material, and the Veteran’s claim for service connection for a bilateral knee condition is deemed reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back condition. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for a back condition. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for a back condition is reopened. The RO originally denied the Veteran service connection for a back condition in June 1993. The decision became final after the Veteran failed to submit additional evidence or file a notice of disagreement within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in December 2008, the RO denied the Veteran’s claim to reopen. The RO continued this denial in October 2009, and the RO continued this denial again in March 2011. The Veteran appealed. In the June 1993 rating decision, the RO denied the Veteran’s claim, because, in pertinent part, the Veteran could not establish an in-service incurrence to prove that his condition was incurred in or caused by a period of service. Nevertheless, the medical evidence before the RO at the time did not contain a competent diagnosis of a back condition. Medical evidence submitted since the June 1993 rating decision includes an April 2011 treatment record that indicates that the Veteran has a current diagnosis of chronic back pain. Pain alone is not a disability for VA compensation purposes. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nevertheless, unexplained pain may suggest a diagnosis of a disorder. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Moreover, pain coupled to a functional impairment of earning capacity is a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Finally, the disability rating schedule recognizes a difference between subjective reports of pain and painful motion that results in objectively observable symptoms such as facial expressions, wincing, etc.; 38 C.F.R. § 4.59; and the “diagnosis” of pain in the Veteran’s treatment records suggests a level of severity that goes beyond the mere subjective reports of pain. Therefore, the evidence submitted since the last final denial is suggestive of a current diagnosis of a disability; which was absent from the evidence contained in the record before the last final decision. Therefore, the evidence is new and material, and the Veteran’s claim for service connection for a back condition is deemed reopened. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bronchitis and a lung condition. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for bronchitis and a lung condition. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for bronchitis and a lung condition is reopened. The RO originally denied the Veteran service connection for bronchitis and a lung condition in April 1961. The decision became final after the Veteran failed to submit additional evidence or file a notice of disagreement within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in June 1993, the RO denied the Veteran’s claim to reopen. The RO continued the denial in July 1993 and again in August 1993. The Veteran appealed, and the Board denied the Veteran’s request to reopen the claim in January 1996. The Veteran subsequently filed a claim to reopen the issue, and, in December 2008, the RO denied the Veteran’s claim to reopen. In October 2009, the RO continued the denial, and the RO continued this denial again in March 2011 The Veteran appealed. The medical evidence before the Board at the time of the January 1996 decision contained a competent diagnosis of multiple lung conditions, but it did not contain a diagnosis of chronic obstructive pulmonary disorder (COPD). Medical evidence submitted since the March 2011 rating decision including a disability benefits questionnaire completed by a private physician in June 2014 indicates that the Veteran has a current diagnosis of COPD. A claim for service connection for COPD is within the scope of a claim for service connection for bronchitis and a lung condition. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, evidence of a new diagnosis within the scope of the previously denied claims has been submitted. As such, the evidence submitted since the last final denial is new and material, and the Veteran’s claims for service connection for bronchitis and a lung condition are reopened. 4. Entitlement to service connection for sinusitis. At issue is whether the Veteran is entitled to service connection for sinusitis. The weight of the evidence indicates that the Veteran is not entitled to service connection. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 The Veteran testified at a personal hearing before the Board in June 2017. When asked whether or not he had sinusitis, the Veteran asked what sinusitis was. Upon further questioning, the Veteran would discuss either his claimed eye problems or his claimed lung condition. See Transcript. The Veteran’s current treatment records are silent for reports of or treatment for a diagnosis of sinusitis during the pendency of the appeal. The Veteran submitted written statements, in January 2010 and January 2012, in which he claimed that he had a diagnosis of sinusitis. The weight of the evidence indicates that the Veteran is not entitled to service connection for sinusitis, because the evidence of record does not establish that the Veteran has a diagnosis of sinusitis. The Board notes that, during the pendency of the appeal, the Veteran claimed that he had a diagnosis of sinusitis. Nevertheless, a diagnosis of sinusitis is a matter of medical complexity, and the record does not establish that the Veteran has sufficient medical training to diagnose such a condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran’s treatment records are silent for a competent diagnosis of sinusitis during the pendency of the appeal. A current diagnosis or a diagnosis during the pendency of the appeal is the cornerstone of a claim for service connection, and the Veteran cannot sustain a claim for service connection without one. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for sinusitis. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for sinusitis is denied. REASONS FOR REMAND 1. Entitlement to service connection for a kidney condition is remanded. The Veteran contends that he is entitled to service connection for a kidney condition. He has contended that his kidney disorder is due to medication prescribed for disabilities for which he is seeking service connection. Therefore, this issue is inextricably intertwined the Veteran’s claims for service connection and must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Entitlement to service connection for a bilateral knee condition is remanded. The Veteran contends that he is entitled to service connection for a bilateral knee condition. An October 2017 treatment record indicates that the Veteran has a current diagnosis of osteoarthritis of the knees. The Veteran’s service treatment records indicate that the Veteran sought treatment for his knees during a period of service. Therefore, the record contains evidence of a current diagnosis and a potentially related in-service incurrence, and this matter must be remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a back condition is remanded. The Veteran contends that he is entitled to service connection for a back condition. The Veteran has been diagnosed with chronic back pain, and this could be sufficient to be suggestive of a disability for VA compensation purposes as it could be pain sufficient to cause functional impairment. See Stankevich; see also Saunders. Additionally, the Veteran’s service treatment records indicate that the Veteran sought treatment for a back condition during a period of service. Therefore, the evidence of record includes that there is evidence of a current diagnosis of a back condition and a potentially related in-service incurrence, and this matter must be remanded in order to provide the Veteran with a VA examination. See McLendon. 4. Entitlement to service connection for bronchitis and a lung condition is remanded. The Veteran contends that he is entitled to service connection for bronchitis and a lung condition. The Veteran has been diagnosed with multiple respiratory conditions including COPD. Additionally, the Veteran’s service treatment records indicate that the Veteran sought treatment for bronchitis and lung conditions during a period of service. Therefore, the evidence of record includes that there is evidence of a current diagnosis of respiratory conditions and a potentially related in-service incurrence, and this matter must be remanded in order to provide the Veteran with a VA examination. See McLendon. 5. Entitlement to service connection for a bilateral eye condition is remanded. The Veteran contends that he is entitled to service connection for a bilateral eye condition. The Veteran has been diagnosed with multiple ocular conditions including pterygium. The Veteran testified at a personal hearing before the Board that he manifested eye symptoms during his period of service. See Transcript. Therefore, the evidence of record contains a current diagnosis and a potentially related in-service incurrence, and this matter must be remanded for a VA examination. See McLendon. 6. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he is entitled to service connection for bilateral hearing loss. The Veteran underwent a VA examination in February 2011, but audiometric testing indicated that the Veteran’s hearing loss was not severe enough to be considered a disability for VA compensation purposes. 38 C.F.R. § 3.385. The Veteran underwent additional audiometric testing, in August 2014, which indicated that the Veteran’s hearing loss had increased in severity. The Veteran reported that his hearing loss had increased in severity over the past 15 years. The Veteran’s pure tone thresholds had increased in severity in both ears (though more so in the left than the right), and the Veteran’s speech discrimination scores were on the cusp of being sufficiently low enough to be considered bilateral hearing loss (although it is unclear whether the Maryland CNC word list was used). Id. This demonstrates that the February 2011 VA examination is no longer sufficiently detailed to provide a complete evaluation of the Veteran’s hearing loss, because the evidence of record demonstrates that over the course of three years the Veteran’s hearing loss deteriorated to being on the cusp of being considered a disability for VA compensation purposes. Over seven years has passed since the last VA examination, and over four years has passed since the last audiogram of record. Once VA undertakes to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one, and adequate examinations are sufficiently detailed to provide a complete evaluation of the Veteran’s claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this matter must be remanded for a new VA examination. 7. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he is entitled to service connection for tinnitus. As discussed above, the issue of entitlement to service connection for bilateral hearing loss is being remanded for a new VA examination. VA examinations evaluating the nature and etiology of bilateral hearing loss may also evaluate the nature and etiology of tinnitus. Therefore, these two issues are inextricably intertwined, and the issue of entitlement to service connection for tinnitus must be remanded as well. See Harris. 8. Entitlement to service connection for hypertension is remanded. The Veteran contends that he is entitled to service connection for hypertension. The Veteran has a current diagnosis of hypertension, and the Veteran’s service treatment records indicate that the Veteran sought treatment for the cardiovascular system. Therefore, the evidence of record contains a current diagnosis and a potentially related in-service incurrence, and this matter must be remanded for a VA examination. See McLendon. 9. Entitlement to service connection for a blood clot is remanded. The Veteran contends that he is entitled to service connection for a blood clot. As this matter is related to the issue of service connection for hypertension, it is inextricably intertwined with the above issue and must be remanded as well. See McLendon. The matters are REMANDED for the following action: 1. Updated pertinent treatment records should be obtained and added to the claims file. 2. Following completion of the above, arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an in-service incurrence and a knee condition to include osteoarthritis of the knees? Why or why not? 3. Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Does the Veteran have a current diagnosis of a back condition? Why or why not? (b.) Does observable or demonstrable medical evidence exist, other than the Veteran’s lay reports, to demonstrate that the Veteran’s back pain is severe enough to functionally limit his ability to work (if so please describe what the medical evidence is)? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a back disorder or functional impairment in the Veteran’s earning capacity due to back pain? Why or why not? 4. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between a lung condition or bronchitis and an inservice incurrence? Why or why not? 5. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an in-service incurrence and a bilateral eye condition to include senile cataracts, tear film, presbyopia, hypermetropia, astigmatism, and pterygium? Why or why not? 6. Arrange to provide the Veteran with a VA examination in order to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an in-service incurrence and a bilateral hearing loss? Why or why not? (b.) Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an in-service incurrence and tinnitus? Why or why not? 7. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or greater probability) that a (CONTINUED ON NEXT PAGE) medical nexus exists between an in-service incurrence and hypertension or a blood clot? Why or why not? BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel