Citation Nr: 18148835 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-35 248 DATE: November 8, 2018 ORDERED The application to reopen the previously denied claim for service connection for sore knees, status post torn tendon, is granted. The application to reopen the previously denied claim for tinnitus, also claimed as ringing in ears, is granted. REMANDED Entitlement to service connection for fibromyalgia, claimed as painful joints is remanded. Entitlement to service connection for sore knees, status post torn tendon, is remanded. Entitlement to service connection for tinnitus, also claimed as ringing in ears, is remanded. Entitlement to service connection for respiratory disability, including obstructive sleep apnea, is remanded. FINDINGS OF FACT 1. In an August 2008 decision, the RO denied the Veteran’s claim for sore knees, status post torn tendon, because there was no medical evidence of record to show that the Veteran had been diagnosed with a chronic disability that was incurred in or caused by his military service, there was no indication of which knee was injured, and the RO was unable to obtain the Veteran’s service treatment records. Following proper notification in August 2008, the Veteran did not appeal this decision and it became final. 2. Evidence received since the August 2008 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim for entitlement to service connection for sore knees. 3. In an August 2008 decision, the RO denied the Veteran’s claim for ringing in ears due to the RO being unable to obtain the Veteran’s service treatment records and the RO needed evidence showing that the ringing in the Veteran’s ears existed from military service to the present time. Following proper notification in August 2008, the Veteran did not appeal this decision and it became final. 4. Evidence received since the August 2008 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim for entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for sore knees, status post torn tendon, has been submitted since the August 2008 decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for tinnitus, also claimed as ringing in ears, has been submitted since the August 2008 decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy during the Persian Gulf War era from June 1993 until his honorable discharge in June 1997. During his service, he was awarded the National Defense Service Medal, Good Conduct Award, Sea Service Deployment Ribbon with one bronze star, Southwest Asia Service Ribbon with one bronze star, Meritorious Unit Commendation, NATO Medal, Armed Forces Service Medal with one bronze star, Navy “E” Ribbon, Armed Forces Expeditionary Medal, and a Flag Letter of Commendation. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. New and material evidence to reopen the claim for entitlement to service connection for sore knees, status post torn tendon. In an August 2008 rating decision, the RO denied service connection for sore knees, post torn tendon, because there was no medical evidence of record to show that the Veteran had been diagnosed with a chronic disability that was incurred in or caused by his military service, there was no indication of which knee was injured, and the RO was unable to obtain the Veteran’s service treatment records. The Veteran did not appeal that decision. The decision is thus final based on the evidence then of record. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Since that time, the Board finds that the Veteran submitted new and material evidence for the claim of sore knees, post torn tendon. Specifically, the Veteran’s service treatment records were obtained, private provider medical records were obtained, and statements by the Veteran that his sore knees are related to environmental hazards from serving in the Persian Gulf. To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below. 2. New and material evidence to reopen the claim for entitlement to service connection for tinnitus, also claimed as ringing in ears. In an August 2008 rating decision, the RO denied service connection for ringing in ears, because there was no medical evidence of record to show that the Veteran had been diagnosed with a chronic disability that was incurred in or caused by his military service, and the RO was unable to obtain the Veteran’s service treatment records. The Veteran did not appeal that decision. The decision is thus final based on the evidence then of record. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Since that time, the Board finds that the Veteran submitted new and material evidence for the claim of tinnitus, also claimed as ringing in ears. Specifically, the Veteran’s service treatment records were obtained, and statements by the Veteran that his tinnitus related to environmental hazards from serving in the Persian Gulf, including noise exposure, on the flight decks of the U.S.S. Dwight D. Eisenhower (CVN 69) and the U.S.S. Theodore Roosevelt (CVN 71), and that he has had ringing in his ears since he left service. To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below. REASONS FOR REMAND VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). (Continued on the next page)   1. Entitlement to service connection for fibromyalgia, claimed as painful joints is remanded. 2. Entitlement to service connection for sore knees, status post torn tendon, is remanded. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for respiratory disability, including obstructive sleep apnea is remanded. The Board finds that because there is evidence of current disabilities, at least an indication of an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for VA examinations is required. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s contention that during his service on the U.S.S. Dwight D. Eisenhower (CVN-69) and the U.S.S. Theodore Roosevelt (CVN-71), the ships were deployed to the Persian Gulf theater of military operations for consideration of application of Gulf War presumptions. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his fibromyalgia, claimed as joint pain. The entire claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s joint pain is etiologically related to service. All opinions must be supported by a detailed rationale. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sore knees, status post torn tendon. The entire claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is asked to specifically address the in-service right knee injury and the post-service left knee injuries. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sore knees are etiologically related to service. All opinions must be supported by a detailed rationale. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his tinnitus. The entire claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that with conceded noise exposure and the Veteran’s report of ringing in his ears since service, the Veteran’s tinnitus is etiologically related to service. All opinions must be supported by a detailed rationale. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his respiratory disability, including obstructive sleep apnea. The entire claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability is etiologically related to service. All opinions must be supported by a detailed rationale. JOHN Z JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL