Citation Nr: 18150916 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-08 250 DATE: November 16, 2018 ORDER New and material evidence having not been received, the application to reopen a claim for service connection for bilateral hearing loss is denied. New and material evidence having not been receive, the application to reopen a claim of entitlement to service connection for tinnitus is denied. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a right knee disability is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for right wrist degenerative arthritis with limited motion, status post lunate replacement, is remanded. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2008 rating decision, the Regional Office (RO) denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus because the evidence did not reveal that bilateral hearing loss or tinnitus was incurred in or aggravated by service. 2. The Veteran did not initiate an appeal to the July 2008 rating decision or submit new and material evidence within one year; it became final. 3. Evidence received since the final July 2008 rating decision does not relate to an unestablished fact necessary to substantiate the claims for service connection for bilateral hearing loss or tinnitus. 4. In an unappealed July 2013 rating decision, the RO denied the Veteran’s application to reopen claims of entitlement to service connection for a right knee or back disability. 5. Evidence received since the final July 2013 rating decision relates to an unestablished fact necessary to substantiate the claims for service connection for a right knee and back disabilities. 6. The preponderance of the evidence is against a finding that the Veteran’s right knee disability is related to his injury in active service. 7. The Veteran’s lumbar spine disability, diagnosed as lumbar spondylosis and lumbar degenerative disc disease, is related to his injury in active service. CONCLUSIONS OF LAW 1. The July 2008 and July 2013 rating decisions that denied applications to reopen claims of entitlement to service connection for bilateral hearing loss, tinnitus, right knee disability, and a back disability are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claims of entitlement to service connection for a right knee disability and a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for lumbar spine disability, diagnosed as lumbar spondylosis and lumbar degenerative disc disease, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1961 to December 1962. Applications to Reopen The Veteran seeks to reopen claims of entitlement to service connection for a right knee disability, bilateral hearing loss, tinnitus, and a back disability. The claims of entitlement to a right knee disability, bilateral hearing loss, and tinnitus were previously finally denied in a July 2008 rating decision. The claims were denied on the basis that the evidence did not associate the disabilities with the Veteran’s active service. The claim of entitlement to service connection for a back disability was previously denied in a July 2013 rating decision. The claim was denied on the basis that the evidence did not associate the Veteran’s back disability with his active service. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the July 2008 rating decision, the Veteran has submitted additional private treatment records, additional VA treatment records were associated with the claims file, and the Veteran was afforded a VA hearing and knee examinations in February 2015 and December 2015, respectively. Since the July 2013 rating decision, the Veteran has submitted a private treatment note regarding his back disability and the Veteran was afforded a VA examination regarding his back in June 2016. Regarding the applications to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus, the Board finds that the evidence is not new and material. It is not new because it is cumulative of evidence already of record and it is not material because it does not relate to an unestablished fact; that is, it does not associate the Veteran’s bilateral hearing loss, or tinnitus with the Veteran’s active service. Therefore, the applications to reopen the claims of entitlement to service connection for bilateral hearing loss, and tinnitus, are denied. Regarding the application to reopen the claim of entitlement to service connection for a right knee disability and back disability, the Board notes that the statement associated with the claims file from the Veteran’s private provider, dated in June 2015, is both new and material. It is new because it was not associated with the claims file at the time of the prior final denial. It is material because it indicates that the only injury that can be related to the Veteran’s right knee disability is the Veteran’s injury in service in the 1960s. In addition, a statement associated with the claims file from the Veteran’s private provider, dated in February 2018, is both new and material. It is new because it was not associated with the claims file at the time of the prior final denial. It is material because it indicates an opinion that the Veteran’s back disability was caused by the injury the Veteran suffered during his military service. As the evidence associated with the claims file regarding the claims of entitlement to service connection for a right knee disability and a back disability are both new and material, the applications to reopen are granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Regarding the Veteran’s claim of entitlement to service connection for a right knee disability, as the RO reopened this claim and denied it again on its merits in the January 2016 Statement of the Case, the Board also may proceed with addressing the Veteran’s claim on the merits. Service Connection Entitlement to service connection for a right knee disability. The Veteran contends that his right knee disability is related to an injury in 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 been diagnosed with degenerative joint disease of the right knee and is status post total right knee replacement, and evidence shows that the Veteran suffered an injury in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of right knee disability began during 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). Service treatment records indicate that the Veteran was treated for a contusion of the right anterior knee and wound, laceration, right anterior knee in January 1962. The Veteran was noted to have been hit by a trailer hitch when the trailer wheel collapsed. Another record indicates that the contusion and laceration were of the right anterior thigh just above the knee. The records do not reveal any knee disability upon examination at separation from service in December 1962. The Veteran was afforded a VA examination in April 2008. After examination the examiner stated that the Veteran did sustain an injury to his right knee but the X-ray studies done at the time of the injury did not show any abnormalities to the right knee joint. The Veteran did not receive any treatment until recent to the examination. Thus, it was less likely than not that the Veteran’s right knee condition was related to his military service. In an August 2013 treatment record it was noted that the difficulties with the knee began when a box of machine guns fell on his knee in service. This was noted to be the start of his degenerative joint disease finally ending in total arthroplasty. In a treatment note dated in June 2015 it was noted that in regard to the causation and need for total knee arthroplasty the only injury that can be related is a service connected injury in the 1960s. He was unloading a trailer full of machine guns that slipped and struck him in the knee. He has had a painful knee ever since that time. The Veteran was afforded a VA examination in December 2015. It was noted that while in the service the Veteran was taking a load of machined guns off a truck. He was pulling the load off the truck and the support wheel collapsed catching his knee under the load. He was taken to the hospital and the knee was sutured and placed on light duty. After examination the examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran’s service treatment records document that the injury occurred in 1962. There was documentation of a deep laceration that required sutures. There was a notation of laceration and contusion of the knee. The injury was record as being above the level of the knee by 4 inches. X-rays were negative and the Veteran was hospitalized for the injury which required crutches for a period of time. The examiner stated that since there were no records of a right knee problem from the time of discharge to indicate chronicity of the right knee problem, that the injury was recorded as being 4 inches above the joint, it was less likely than not that the current knee condition was related to military service. VA treatment notes reveal that the Veteran reported that he injured his right knee in service when he dropped a trailer that was loaded with machine guns onto the anterior aspect of the knee. Entitlement to service connection for a right knee disability is not warranted. As noted above, service treatment records reveal that the Veteran was treated for a knee injury in service. However, no knee disability was noted upon examination at separation from service. The record contains conflicting medical opinions regarding whether the Veteran’s right knee disability is at least as likely as not related to an in-service injury. Private treatment providers have indicated that in regard to the causation and need for total knee arthroplasty the only injury that can be related is a service connected injury in the 1960s. However, the private provider does not provide adequate explanation as to how the injury in service caused or led to the current knee disability. Thus, the Board finds the rationale to be insufficient. VA examiners have opined that the Veteran’s right knee disability is not at least as likely as not related to his active service. In December 2015 a VA examiner provided the rationale that the Veteran’s right knee problem was not related to his injury in active service because the site of the injury was above the knee. The VA examiner’s opinion is more probative, because it provides a clear rationale. As the preponderance of the evidence is against a finding that the Veteran’s right knee disability is related to his active service, to include an injury in service, service connection is denied. Entitlement to service connection for a lumbar spine disability. The Veteran contends that his lumbar spine disability is related to his active service. The Board concludes that the Veteran has a current diagnoses of lumbar spondylosis and lumbar degenerative disc disease are related to his active service. 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). Service treatment records reveal that the Veteran injured his back in service and he had back complaints in service. The treatment records indicate a report of a lumbosacral strain. The Veteran was not noted to have any back disability upon examination at separation from service. However, upon the Report of Medical History at separation from service the Veteran was noted to have mild lordosis. In January 1970 it was noted that the Veteran had a history dating back several years of low back difficulties. The Veteran’s back pain completely resolved and was asymptomatic until his recent episode following an accident in August 1969. In a September 2005 VA treatment note the Veteran was reported to be status post back surgery times three related to work injury. In a private treatment note dated in February 2008 the Veteran was noted to report that he injured his back in the early 1960s and that he developed persistent back pain that required surgery. After evaluation of the Veteran the provider noted that the Veteran’s current low back pain and problems were just as likely as not due to the military service injury in the 1960s. The Veteran was afforded a VA examination in April 2008. The Veteran was relevantly diagnosed with degenerative disc disease with multiple surgeries with laminectomies, radiculopathy of the bilateral lower extremities, and three scars. The examiner found that it was less likely as not that the Veteran’s current back condition was related to his military service. The rationale provided was that the Veteran the examiner could not find any medical records from 1962 to 1969 prior to his work-related injury to his lower back indicating any chronicity of the low back condition. The examiner stated that an examination report dated in May 1970 indicated that the Veteran had a full recovery from his in-service episode of low back pain. The Veteran then worked for eight years performing heavy work as a logger until the accident in 1969. The medical records were noted to reveal that the Veteran settled an industrial claim regarding his low back. In a private treatment note dated in February 2014 the Veteran was assessed with lumbar radiculopathy, lumbar spondylosis, lumbar degenerative disc disease, and chronic low back pain. The provider stated that after a review of the Veteran’s history and physical examination, as well as his lumbar imaging, it was the opinion of the provider that it was much more likely than not that the Veteran’s lumbar spine pain was service-connected. The provider noted that although spondylosis is a degenerative condition, the initial injury which was consistent with disc herniation progressed to lumbar laminectomy, was a service-connected event which likely caused progression of the degenerative cascade in the Veteran, predisposing him to chronic low back pain and two subsequent lumbar spine surgeries. The Veteran was afforded a VA examination in June 2016. After examination the examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran sustained a strain injury while in service in 1962, falling while mountain climbing and landing on his back. The examiner found that the Veteran’s verbal history of the condition differed from the service treatment records. The Veteran’s back condition was self-limiting and was not noted on the separation examination. The examiner stated that the treating officer in service indicated that the Veteran had admitted having back pain prior to entrance to service. The Veteran was noted to have injured his back in a logging accident after service. In a statement from another provider, dated in February 2018, it was noted that the provider treated the Veteran for the prior six years and that the Veteran had complained of constant, chronic back pain during that time. The Veteran was provided with pain medication for his back condition until June 2014 when he was referred to a rehabilitation specialist. The provider noted that the specialist concluded that the Veteran’s disabling back condition was more likely than not due to the injury the Veteran suffered in the 1960s during military service. The provider also noted that the Veteran was seen by another provider in August 2017 who concurred with the opinion of the rehabilitation specialist that the Veteran chronic, disabling back condition was caused by the injury the Veteran suffered during his military service. The provider noted that the Veteran had undergone a lumbar laminectomy in 1971 due to the results of his military injury and subsequent fusion of the lumbar vertebrae in 1976. The provider concluded that after reviewing the Veteran’s chart for the prior six years, including imaging studies and consultations from the specialists, it was more likely than not that the Veteran’s chronic, disabling back condition was caused by the injury suffered in service. Entitlement to service connection for a lumbar back disability, diagnosed as lumbar spondylosis and lumbar degenerative disc disease, is warranted. Service treatment records reveal that the Veteran injured his back in service and that he was treated for back complaints in service. Thereafter, the Veteran again injured his back after service. VA examinations have found that the Veteran’s back disability is less likely than not related to his active service and have opined that the Veteran’s in-service injury fully healed and was self-limiting and that the Veteran reinjured his back after service. However, the service treatment records indicate that the Veteran had mild lordosis upon separation from service. In addition, private providers have rendered the opinion that that Veteran’s back disability is at least as likely as not related to his injury in service. These providers have indicated, in part, that the Veteran’s in-service injury predisposed him to his current back disability. As such, as it is at least as likely as not that the Veteran’s current lumbar spondylosis and lumbar degenerative disc disease are due to his injury in service, service connection is granted. REASONS FOR REMAND Entitlement to an evaluation in excess of 10 percent for right wrist degenerative arthritis with limited motion, status post lunate replacement, is remanded. Entitlement to TDIU is remanded. In a statement dated in October 2013, the Veteran’s provider noted that the Veteran was unable to work due to multiple medical problems. Thus, the issue of entitlement to TDIU has been raised as part of the increased rating claim before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, attempts must be made to obtain VA treatment records regarding the Veteran dated since April 2018. The Veteran was afforded a VA examination regarding the severity of his right wrist disability in November 2015. At that time the Veteran was noted to have palmar flexion of 0 to 44 degrees, dorsiflexion of 0 to 43 degrees, ulnar deviation of 0 to 14 degrees, and radial deviation of 0 to 20 degrees. The examination did not include joint testing in both active and passive motion. Subsequently, in a private treatment note dated in March 2016 the Veteran’s right wrist was noted to have flexion and extension that were limited to 20 and 30 degrees respectively. As the March 2016 treatment note indicates that the severity of the Veteran’s right wrist disability has changed. Thus, the Board finds the examination to be inadequate and the claim for a higher evaluation for the Veteran’s right wrist disability must be remanded for an adequate examination. See 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997), Correia v. McDonald, 28 Vet. App. 158 (2016). The TDIU claim has not been developed or adjudicated. Therefore, it must be remanded for such action. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period beginning April 2018 to the present. 2. Take all appropriate action to develop the claim for TDIU, to include providing the Veteran any appropriate notice and asking him to complete a VA Form 21-8940. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his right wrist disability. The examiner is requested to delineate all symptomology associated with, and the current severity of the disability. The appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose if possible. The examiner should specifically test the Veteran’s right and left wrist ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. (Continued on the next page)   If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU claim. M. E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel