Citation Nr: 18153878 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-34 228 DATE: November 29, 2018 ORDER New and material evidence having not been received, the petition to reopen the claim for entitlement to service connection for tinnitus is denied. New and material evidence has been received to reopen the claim for entitlement to service connection for a back disorder, so to this extent the claim is granted. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a right knee disorder is granted. FINDINGS OF FACT 1. An August 2011 rating decision initially denied service connection for tinnitus; the Veteran initiated an appeal by filing a timely notice of disagreement (NOD); but he did not perfect it by filing a VA Form 9 after the statement of the case (SOC) was issued in July 2014, so the rating decision became final. 2. He attempted to reopen the claim for entitlement to service connection for tinnitus, which was denied in a May 2016 rating decision; he did not perfect his appeal of this denial, so the decision became final. 3. Evidence received since the May 2016 rating decision is cumulative and redundant, and does not relate to an unestablished fact necessary to substantiate the underlying claim for service connection for tinnitus. 4. An April 2005 rating decision denied service connection for a back disorder; the Veteran initiated an appeal by filing an NOD, but he did not perfect it by filing a VA Form 9 after the SOC was issued in April 2007, so the rating decision became final. 5. There is some evidence received since the April 2005 rating decision that is new and material, and relates to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for a back disorder. 6. The Veteran is not shown to have had a back injury during service, to include active duty, ACDUTRA, and INACDUTRA, and there is no evidence to suggest that a current back disorder is related to service. 7. The Veteran’s current right knee disorder at least as likely as not had its onset while on a period of ACDUTRA. CONCLUSIONS OF LAW 1. The August 2011 and May 2016 rating decisions, which denied the Veteran’s claim of entitlement to service connection for tinnitus, are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2018). 2. Evidence received since the May 2016 rating decision is not new and material and the claim for service connection for tinnitus is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The April 2005 rating decision, which denied the Veteran’s claim of entitlement to service connection for a back disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2018). 4. The additional evidence received since the April 2005 rating decision is new and material, and the claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for entitlement to service connection for a right knee disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to March 1988, which was followed by service in the Reserves that included periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He retired from the Reserve in December 2009. This appeal to the Board of Veterans’ Appeals (Board) is from September 2014 and January 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Additional medical records have been added to the file after a June 2016 statement of the case (SOC) was issued for the low back and right knee disorders and the case was certified to the Board. However, these records are cumulative and not pertinent to the claim concerning the low back disability, so the matter need not be remanded to the RO for initial consideration. Although the evidence is pertinent to the right knee claim, the Board is granting the claim, so there is no prejudice to the Veteran in considering the evidence in the first instance. There is also evidence concerning tinnitus that has been added to the record since the claim was adjudicated in an August 2018 supplemental statement of the case, which was not considered by the RO; however, this evidence only notes complaints of tinnitus, which had also been noted in VA treatment records that were already considered. Thus, these treatment records are cumulative evidence and a wavier is unnecessary. 38 C.F.R. § 20.1304(c). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise 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, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Tinnitus The Veteran’s initial claim for service connection for tinnitus was denied in an August 2011 rating decision. After reviewing service treatment records, post-service VA treatment records, and a March 2011 examination report, the claim was denied on the basis that tinnitus was not shown to have had an onset during service, the Veteran had no measurable hearing loss, and on the lack of nexus evidence linking the disorder to service. Notably, the VA examiner offered an opinion that the Veteran’s tinnitus was not related to noise exposure in service based on evidence that there were no complaints or treatment for tinnitus in service and the Veteran had no measurable hearing loss. When the Veteran sought to reopen his claim in March 2015, the Veteran submitted an August 2015 statement from Dr. J.O. to the effect that the Veteran’s tinnitus was more likely than not related to his military service. See October 2015 Medical Treatment Record – Non-Government Facility. However, the May 2016 rating decision continued the denial based on a finding that the VA treatment records and Dr. J.O.’s statement did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Since the Veteran initiated, but did not perfect his appeal of these decisions, they became final. In the January 2018 rating decision on appeal, the RO reopened the claim for service connection for tinnitus but denied the claim on the merits based on probative evidence that the tinnitus was not related to service. As a threshold matter, however, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence added to the record since the May 2016 rating decision includes ongoing VA treatment records that continued to note the Veteran’s complaints of tinnitus. See November 2017 and September 2018 CAPRI records. The RO also arranged for another VA examination and opinion concerning the etiology of the Veteran’s tinnitus. The December 2017 VA audiologist opined that the Veteran’s tinnitus is less likely than not related to military noise exposure. The Veteran reported first becoming aware of tinnitus in 2000, which was years after his active duty service. See December 2017 C&P Exam. Evidence of record at the time of the prior denial in May 2016 also contained treatment records that noted the Veteran’s current complaints of tinnitus and included a VA examination with an unfavorable opinion. Thus, the newly received evidence that consists of current complaints and an unfavorable opinion is cumulative. Moreover, the evidence does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim. The Board is aware that the Veteran’s NOD referenced the private opinion from Dr. J.O. that links the tinnitus to service; however, this opinion, which was not supported by a rationale, was considered in the May 2016 rating decision that is now final. Even if the Veteran had resubmitted the statement, it is not new and would be no more than duplicative of evidence that was previously considered; therefore, it may not be used as a basis for reopening the claim. Because the evidence submitted since the last final decision is cumulative and/or does not relate to an unestablished fact necessary to substantiate the claim for service connection, he has not submitted new and material evidence on this matter, and the claim is denied. 2. Low Back The RO initially denied service connection for a back disorder in an April 2005 rating decision. The Veteran filed an NOD and an SOC was issued in April 2007; the Veteran did not perfect his appeal by filing a VA Form 9 so the April 2005 rating decision became final and is the last final denial for the claim. The April 2005 denial was based on evidence showing the Veteran complained of back pain on a few occasions in 1989, but no chronic disability or functional impairment was shown. The rating decision on appeal reopened the claim for service connection for a back disorder and then denied the claim on the merits. Regardless, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson, supra; Barnett v. Brown, supra. Additional evidence received since the April 2005 rating decision is new and material because it relates to an unestablished fact necessary to substantiate the claim and, when considered with other evidence of record, raises a reasonable possibility of substantiating the claim. There is now evidence of a chronic disorder based on lumbar X-ray and MRI findings that revealed multilevel degenerative changes and moderate bilateral neural foramina stenosis. See August 2014 CAPRI records. Since a current disability had been an unestablished fact necessary to substantiate the claim, the claim for service connection is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). The term “active service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. §§ 101(24); 38 C.F.R. § 3.6(a). National Guard and Reserves service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(22) (2012); 38 C.F.R. § 3.6(c) (2018). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23) (2012); 38 C.F.R. § 3.6(c) (2018). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The presumption provision applies only to periods of active duty, not ACDUTRA or INACDUTRA. See Biggins, supra; see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period). 3. Entitlement to service connection for a back disorder. Since the claim for service connection has been reopened, the Board must conduct a de novo review of the evidence. Service treatment records from the Veteran’s period of active duty, to include his January 1988 separation examination and medical history reports, reveal no evidence of back problems. See STR – Medical and June 2014 Service Personnel Record. The earliest documented complaint of back pain is dated in August 1989. He reported having a one-month history of pain from a knot in his upper back. No mass was found, but the assessment was upper back pain. There was no line-of-duty determination. Additional complaints that included the cervical, thoracic, and low back were noted in September, October and November 1989. See STR – Medical. In December 1990 he complained of low back pain and a January 1993 treatment record shows that the Veteran’s thoracic spine was very tight and painful. See STR – Medical. In support of his claim, the Veteran submitted a July 2005 statement from Dr. R.Z. that indicates there is a nexus between the Veteran’s thoracic spine and in-service injury. He noted that the Veteran reported that his current disorder caused the same situational problems that they did in service. See July 2005 Medical Treatment Record – Non-Government Facility. This opinion, which is limited to the thoracic spine, has little probative value since it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458 (1993). Here, the physician relied on the Veteran’s reports of in-service injuries. While he is competent to report his symptoms and injuries his assertion is not credible since there is no evidence of a thoracic spine injury in service. See Layno v. Brown, 6 Vet. App. 465 (1994). As noted service treatment records from the Veteran’s active duty contain no evidence of a back problem. Although the Veteran is shown to have had upper back complaints in 1989 and 1993, a review of his service personnel records does not show that he was on ACDUTRA or INACDUTRA when he reported his complaints. There is also no line of duty determination concerning any back injury in 1989 or 1993. See Service Personnel Records. Thus, the evidence tends to show that he did not incur a back injury during service. In fact, there are several service treatment records from his Reserves service that show he denied having any back problems. See STR – Medical. Moreover, there is no evidence of a current thoracic spine disorder. A review of the medical records does not show any thoracic spine problems since Dr. R. Z. offered his opinion in July 2005. The Veteran does, however, have diagnose of other back disorders. X-rays and MRI findings revealed lumbar degenerative disc disease/spondylosis, stenosis, and SI joint dysfunction. See August 2014 CAPRI records. Service connection for arthritis is not available on a presumptive basis, since it did not manifest to a compensable degree within a year after the Veteran separated from active duty service in March 1988. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). More recently, the Veteran had a low back injury in November 2004 and while he was still in the Reserve when it occurred, the evidence shows he was not on ACDUTRA or INACDUTRA at the time. Instead, the evidence shows that the Veteran was a civilian employee and that it was a work-related injury. A traumatic injury report from the Department of Labor shows the Veteran was working at March ARB when he experienced back strain after carrying a heavy object with another employee. See STR – Medical. In short, while the evidence shows the Veteran has a current back disorder and that he has had prior back injuries, there is no probative evidence that these injuries were occurred in or aggravated while on active duty, ACDUTRA, or INACDUTRA. There is also no probative evidence that links a current back disorder to service. As such, a preponderance of the evidence is against the claim and there is no reasonable doubt to resolve in the Veteran’s favor. 4. Entitlement to service connection for a right knee disorder. A Line of Duty Determination shows that the Veteran was on duty status from March 29, 1997 to April 12, 1997 when he injured his right knee on April 4, 1997. The injury was described as right knee sprain with ecchymosis. A treatment record the following month shows he continued to have knee pain and a record shows that he had been told to wear a brace for six weeks and he was given a physical profile. A service treatment record and periodic examination in July 1997 also noted his right knee sprain. The diagnosis was valgus injury and MCL strain, Grade I. See STR – Medical. Subsequent records also show complaints of right knee pain and physical therapy. See September 2018 CAPRI records. During an August 2018 VA examination, the clinician noted a diagnosis of right knee meniscal tear. Based on the examination and a review of the records, the clinician opined that the right knee disorder was at least as likely as not incurred in or caused by service based on evidence of right knee pain on duty and the line of duty determination of a right knee sprain with ecchymosis on April 1997. The clinician added that knee trauma in service treatment records initiated a pathological process resulting in the currently diagnosed right meniscal tear. This opinion is probative and consistent with the record. There is no probative evidence to the contrary. (Continued on the next page)   Based on an in-service injury, current disability, and favorable nexus evidence, service connection has been established for a right knee disability. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst