Citation Nr: 18153940 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-38 979 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for a left knee disorder is granted. Service connection for a right knee disorder is granted. Service connection for a back disorder is granted. Service connection for lumbar radiculopathy of the left lower extremity is granted. An initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for pain of the groin and testicles is remanded. Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of the bilateral lower extremities is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim of entitlement to service connection for a left knee disorder; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the May 2011 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disorder, and raises a reasonable possibility of substantiating the claim. 3. In a May 2011 rating decision, the AOJ denied the claim of entitlement to service connection for a right knee disorder; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 4. Additional evidence received since the May 2011 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disorder, and raises a reasonable possibility of substantiating the claim. 5. In a May 2011 rating decision, the AOJ denied the claim of entitlement to service connection for bilateral hearing loss; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 6. Additional evidence received since the May 2011 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 7. The competent and probative evidence is at least in equipoise as to whether a left knee disorder had its onset in or is otherwise related to the Veteran’s period of active service. 8. The competent and probative evidence is at least in equipoise as to whether the Veteran’s right knee disorder is proximately due to his left knee disorder. 9. The competent and probative evidence is at least in equipoise as to whether the Veteran’s back disorder is proximately due to his bilateral knee disorders. 10. The competent and probative evidence is at least in equipoise as to whether radiculopathy of the left lower extremity is proximately due to the Veteran’s back disorder. 11. The Veteran is in receipt of the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The May 2011 decision denying the claim of entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the May 2011 decision to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The May 2011 decision denying the claim of entitlement to service connection for a right knee disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received since the May 2011 decision to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The May 2011 decision denying the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 6. New and material evidence has been received since the May 2011 decision to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for entitlement to service connection for a left knee disorder have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for entitlement to service connection for a right knee disorder have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for entitlement to service connection for a back disorder have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. The criteria for entitlement to service connection for lumbar radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 11. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.84, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to August 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The January 2014 rating decision reopened and denied the claims of entitlement to service connection for bilateral hearing loss and the bilateral knees. However, even where the AOJ determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that the Veteran claimed loss of use of his lower extremities, which the AOJ adjudicated as a service connection claim. It appears that the Veteran is claiming loss of use of the lower extremities due to his bilateral knee disorders and left lumbar radiculopathy, and not as a separate condition to be service-connected. Accordingly, the Board has recharacterized the claim as entitlement to SMC based on the loss of use of the bilateral lower extremities. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issues of service connection for the bilateral knees. In May 2011, the AOJ denied the claims of entitlement to service connection for the bilateral knees based on the lack of a nexus between a current disorder and the Veteran’s period of service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the May 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the May 2011 decision. A February 2013 private medical evaluation indicates that left knee arthritis is due to multiple in-service traumas to the left knee, and that right knee arthritis is proximately due to the left knee. 03/11/2013, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether the bilateral knee disorders had their onset in or are otherwise related to active service, to include on a secondary basis. Therefore, the claims of entitlement to service connection for the bilateral knees are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for bilateral hearing loss. In May 2011, the AOJ denied the claim of entitlement to service connection for bilateral hearing loss based on the lack of a current disability, as the evidence did not demonstrate hearing loss for VA purposes under 38 C.F.R. § 3.385. Section 3.385 provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the May 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the May 2011 decision. A February 2013 audiological examination indicates bilateral hearing loss under § 3.385. 03/11/2013, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (current disability), by addressing whether the Veteran has hearing loss that satisfies the requirements of § 3.385. Therefore, the claim of entitlement to service connection for the bilateral hearing loss is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 4. Entitlement to service connection for a left knee disorder. After review of the record, the Board finds that the criteria for service connection for a left knee disorder have been met. The record contains a competent diagnosis of degenerative joint disease (DJD) of the left knee. 03/11/2013, Medical-Non-Government; 05/11/2011, Medical-Government. Accordingly, the Board finds competent evidence of a current disability. Service treatment records demonstrate that the Veteran endorsed experiencing left knee problems, including locking and moderate to severe pain, in a July 1988 report of medical history. The examination performed at the time of separation did not indicate any abnormal findings related to the knees. 07/15/2014, STR-Medical. A January 2011 VA examination reflects the Veteran’s report of bilateral knee pain beginning in service. The VA examiner opined that his left knee pain is not due to service because the Veteran did not report left knee pain on subsequent examinations after endorsing left knee pain in July 1988. 02/01/2011, VA Examination. The Board notes that the July 1988 examination was a separation examination, and that there would not have been a subsequent opportunity for the Veteran to report experiencing left knee pain while in service. The VA examiner did not address the etiology of DJD of the left knee, which was indicated by x-ray in January 2011. 07/15/2014, Medical-SSA. In February 2013, a private chiropractor opined that it is more likely than not that the Veteran’s current left knee disorder is related to service, citing to multiple traumas to the left knee, including due to kneeling, stretching, and twisting as part of his military occupational specialty (MOS) as an airplane mechanic. The chiropractor also noted that the Veteran endorsed locking and pain at his separation examination. He concluded that left knee arthritis is a permanent and progressive condition that is due to service and was further complicated by the Veteran’s obese habitus. 03/11/2013, Medical-Non-Government. In December 2013, a VA examiner opined that the left knee disorder is not related to the Veteran’s period of active service because the medical literature does not support a nexus of causality between symptoms of achiness in clinically normal knees at age 24 and minimal DJD in a morbidly obese male 25 years later. 01/22/2014, C&P Exam. The Board notes that the lack of causality between a current disorder and in-service symptoms of achiness does not preclude a finding that in-service symptoms are evidence that DJD of the left knee manifested during service, or that DJD is due to in-service trauma to the left knee. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s left knee disorder had its onset in or is otherwise related to his period of active service. Additionally, the Board finds that the competent and probative evidence is at least in equipoise as to whether left knee pain was noted in service with post-service continuity of the same symptomatology. As the disability in question, arthritis, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Greyzck v. West, 12 Vet. App. 288, 291 (1999) (recognizing that the term osteoarthritis is a synonym of the terms degenerative arthritis and degenerative joint disease). Accordingly, the Board finds that service connection is warranted for a left knee disorder. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 5. Entitlement to service connection for a right knee disorder. After review of the record, the Board finds that the criteria for service connection for a right knee disorder have been met. The record contains a competent diagnosis of DJD of the right knee. 03/11/2013, Medical-Non-Government; 05/11/2011, Medical-Government. Accordingly, the Board finds competent evidence of a current disability. In February 2013, a private chiropractor opined that it is more likely than not that the Veteran’s current right knee disorder is proximately due to his left knee disorder. Since injury of the left knee, the Veteran has experienced progressive pain and dysfunction of right knee that mirrors symptomatology of left knee. The chiropractor explained that the left knee disorder resulted in a right knee disorder due to a process of constant and chronic biomechanical compensation, adaptation, altered gait, and weight shifting. 03/11/2013, Medical-Non-Government. The Board acknowledges that VA examiners in January 2011 and December 2013 opined that the right knee disorder is not related to service, but the examiner did not address whether it is proximately due to the left knee disorder. Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s right knee disorder is proximately due to his left knee disorder. See 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. Entitlement to service connection for a back disorder. After review of the record, the Board finds that the criteria for service connection for a back disorder have been met. The record contains a competent diagnosis of degenerative arthritis of the lumbar spine. 03/11/2013, Medical-Non-Government; 01/22/2014, C&P Exam. Accordingly, the Board finds competent evidence of a current disability. In February 2013, a private chiropractor opined that it is more likely than not that the Veteran’s current back disorder is proximately due to his bilateral knee disorders due to chronic and constant adaptation and biomechanical compensation for altered gait and weight shifting. 03/11/2013, Medical-Non-Government. The Board acknowledges that in December 2013, a VA examiner opined that the back disorder is not related to service, but they did not address whether it is proximately due to the Veteran’s bilateral knee disorders. Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s back disorder is proximately due to his bilateral knee disorders. See 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. Entitlement to service connection for lumbar radiculopathy of the left lower extremity. After review of the record, the Board finds that the criteria for service connection for left lumbar radiculopathy have been met. In December 2013, a VA examiner opined that involvement of the sciatic nerve on the left is due to lumbar radiculopathy. 01/22/2014, C&P Exam. Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether involvement of the sciatic nerve of the left lower extremity is proximately due to his back disorder, for which service connection has been granted in this decision. See 38 C.F.R. §§ 3.102, 3.303, 3.310. Increased Rating 8. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available under Diagnostic Code 6260. See 38 C.F.R. § 4.87, DC 6260. The Board finds that the current 10 percent rating contemplates the impact of his tinnitus, such as difficulty hearing. Accordingly, the Veteran’s claim for an increased rating for tinnitus is denied as a matter of law. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (concluding that the United States Court of Appeals for Veterans Claims (Court) erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. Initially, the Board notes that records received from the Social Security Administration (SSA) demonstrate VA treatment, but VA treatment records have not been associated with the virtual file (other than those contained in the SSA records). Accordingly, the AOJ should obtain all VA treatment records and associate them with the virtual file. 2. Entitlement to service connection for right ear hearing loss is remanded. 3. Entitlement to service connection for left ear hearing loss is remanded. A February 2013 private audiological examination demonstrated bilateral hearing loss for VA purposes. A December 2013 VA examination only demonstrated left ear hearing loss for VA purposes; right ear hearing loss was not shown under 38 C.F.R. § 3.385. The December 2013 VA examiner opined that the Veteran’s left ear hearing loss is less likely than not related to his period of service because the Veteran’s hearing at discharge was not significantly worse than it was at enlistment. However, the examiner failed to properly address in-service threshold shifts demonstrated by the audiograms, delayed onset hearing loss, or the Veteran’s contention of progressively worsening hearing loss. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that neither a normal separation examination alone nor the absence of a separation audiometric examination is an adequate basis for a negative nexus opinion in such a case). Accordingly, the Board finds the examiner’s rationale to be inadequate and finds that a new VA medical opinion is necessary to adjudicate this issue. The Board acknowledges the private chiropractor’s February 2013 opinion that hearing loss is related to the Veteran’s service, but finds that a chiropractor is not competent to opine as to the etiology of hearing loss, which requires the specialized medical training and experience, such as that of an audiologist. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Thus, the opinion cannot form the basis of a grant of service connection for hearing loss. 4. Entitlement to service connection for pain of the groin and testicles is remanded. In February 2013, a private chiropractor opined that radicular pain into the groin and testicles is secondary to the back disorder, but in support, stated that it is due to the bilateral knee disorders. The Board finds the opinion to be internally inconsistent, and thus cannot form a basis for a grant of service connection. In December 2013, a VA examiner opined that pain of the groin and testicles is not related to lumbar radiculopathy, but did not provide an alternative etiology of the pain. Accordingly, the AOJ should schedule the Veteran for an examination to determine the etiology of pain into the groin and testicles. 5. Entitlement to TDIU is remanded. 6. Entitlement to SMC based on loss of use of the bilateral lower extremities is remanded. The Board finds that the claims of entitlement to TDIU and SMC are inextricably intertwined with several of the remanded claims on appeal, and will defer consideration of those matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, obtaining current treatment records will assist in adjudication of these claims. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records. 2. After completing directive #1, schedule the Veteran for an examination with a VA audiologist to determine the nature and etiology of bilateral hearing loss. The examiner should review the virtual file, including a copy of this Remand. The audiologist is to address the following: (a.) Whether the Veteran satisfies the criteria for right ear hearing loss under 38 C.F.R. § 3.385. (b.) Whether it is at least as likely as not (50 percent or greater probability) that hearing loss manifested during or is otherwise related to the Veteran’s period of active service. (c.) Whether it is at least as likely as not that (50 percent or greater probability) that hearing loss (i) manifested to a compensable degree within one year of August 19, 1988, or (ii) was noted during service with continuity of the same symptomatology since service. In responding to these questions, the audiologist is to consider and address the following: (i) positive threshold shifts during service; and (ii) the Veteran’s contention of progressively worsening hearing loss since service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of pain into the groin and testicles. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that pain into the groin and testicles manifested during or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that pain into the groin and testicles is due to a service-connected disability, to include the back, lumbar radiculopathy, and bilateral knees. (c.) Whether it is at least as likely as not (50 percent or greater probability) that pain into the groin and testicles has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability, to include the back, lumbar radiculopathy, and bilateral knees. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel