Citation Nr: 18159297 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-26 977 DATE: December 18, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for left knee osteoarthritis (OA) is denied. Entitlement to service connection for right knee osteoarthritis (OA) is denied. FINDINGS OF FACT 1. In a July 2013 Board decision, the Board denied the claim of entitlement to service connection for bilateral hearing loss. 2. Evidence associated with the claims file since the July 2013 Board decision is cumulative or redundant and fails to raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran’s left knee OA did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 4. The Veteran’s right knee OA did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The July 2013 Board decision was final. 38 U.S.C. §§ 511(a), 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. No new and material evidence has been received since the Board’s July 2013 decision, thus the claim of entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for left knee OA are not met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for right knee OA are not met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from March 1956 to February 1958. This case comes before the Board on appeal from May 2014 and November 2015 rating decisions. This case was previously before the Board in April 2012, December 2012, July 2013, and October 2017. In the latest decision, the issues on appeal were remanded for further evidentiary development. The Board notes that the RO complied with the Board’s October 2017 remand instructions, thus there is no prejudice for the Board to proceed with adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). New and Material Evidence – Bilateral Hearing Loss Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and re-adjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” 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). Service Connection – Bilateral Knee OA Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017). The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss At the time of the July 2013 Board decision, which denied service connection for bilateral hearing loss, the evidence of record consisted of VA examinations and opinions, VA outpatient treatment records, and the Veteran’s lay testimony, buddy statement and private doctor’s opinion. Likewise, the Board acknowledged that the Veteran’s service treatment records (STRs) were, and remain, unavailable for review due to the 1973 fire of the National Personnel Records Center (NPRC). Thus, the Board fully considered the benefit of the doubt doctrine in adjudicating the claim. In the July 2013 decision, the Board denied the Veteran’s claim for bilateral hearing loss because the probative evidence of record was against the claim. Specifically, the Board gave significant probative weight to the May 2013 VA examiner’s opinion and determined that the Veteran’s assertions were internally inconsistent thereby rendering his lay testimony of little probative value. Even more, the buddy statement and private doctor’s opinion related to symptoms of tinnitus, as opposed to bilateral hearing loss. Thus, the Board denied the Veteran’s claim as the preponderance of the lay and medical evidence was against the claim. Since the July 2013 Board decision, the Veteran continued to assert that his bilateral hearing loss was related to his active duty service as a heavy weapons infantryman. However, the Veteran’s arguments are neither new nor material. In fact, the Veteran’s arguments are identical to the arguments the Board found of little probative value in July 2013. Furthermore, although VA outpatient treatment records and statements from the Veteran’s representative following the Board’s decision are considered new, it is not material as it fails to raise a reasonable possibility of substantiating the claim. Therefore, although some evidence submitted since the July 2013 decision is new, it is not material as it fails to raise a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s claimed is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. Entitlement to service connection for bilateral knee osteoarthritis (OA) Here, the Veteran asserts that his bilateral knee OA was incurred during service. At the outset, the Board notes that the Veteran had diagnoses of osteoarthritis of the right knee in 2003 and of the left knee in 2009. See May 2018 VA Examination. As discussed above, the Veteran’s STRs are unavailable for review and presumed destroyed in a fire at the NPRC in 1973. See June 2012 Formal Finding on Unavailability of Records. When service records are unavailable through no fault of the Veteran, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). As it relates to the Veteran’s service, the Veteran has maintained that his bilateral knee disabilities were the result of training during service and exposure to extreme cold weather in Germany. Likewise, during the May 2018 VA examination, the Veteran reported that he bumped his right knee on a tank, and then fell off the tank in 1957 in Germany. He added that he went to the dispensary, where ointment was applied to a cut and he was given pain pills and light duty for a week. Additionally, the Veteran reported working in a steel mill and living on a small ranch with two horses. He added that he does not experience knee pain since his knee replacements in 2012 and 2013. The Veteran denied a left knee injury during service. Based on the first prong being met, and Veteran’s contention regarding his in-service injury, training, and exposure to cold, the Board must determine whether the Veteran’s current disability is related to service, which is generally proven by medical evidence. In that regard, in the May 2018 VA examination, the VA examiner opined that the Veteran’s bilateral knee disability was not caused by or etiologically related to active duty service, or manifested within one year from separation from active duty service. The VA examiner reasoned that the Veteran was diagnosed with DJD of the knees first appearing in the records when he reported to the VA for complaints of right knee pain after a fall from a haystack which occurred two years prior to his orthopedic evaluation in 2003. The examiner continued that the Veteran’s left knee DJD was first diagnosed in 2009. The examiner added that it was unlikely that the Veteran’s bilateral knee disabilities were caused by his active duty service 45 years earlier, which was only discovered after the Veteran complained of knee pain two years after a fall in 2003. More importantly, the Veteran denied any injury to the left knee in service, and mechanism of injury as he described and related to cold exposure, would be unlikely to cause the DJD his bilateral knees within one year of his separation from active duty or in the interim until 2003. The examiner concluded that the Veteran failed to mention that his knee disability was related to service until 2015. The Board finds that the May 2018 VA examiner’s opinion is entitled to significant probative weight as such considered the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale based on medical principles. Moreover, there is no contrary medical opinion of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In a December 2018 appellant brief, the Veteran, through his representative argued that the VA examiner’s opinion was inadequate as he is not a specialist and only a physician assistant. The Veteran, through his representative argues that the examiner must be a specialist to provide a medical opinion on the etiology of the Veteran’s bilateral knee disabilities. The Board rejects this argument. The Board notes that VA satisfies its duty to assist in when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician’s assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses’ statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Further, the Board may assume a VA medical examiner is competent. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). In this instance, the Board finds that Veteran and his representative have only made generalized statements as to the May 2018 examiner’s qualifications and have not met their burden of persuading the Board that he was not qualified to offer an opinion. Thus, absent any indication beyond a general statement by the Veteran and/or his representative, he is presumed to be qualified to offer an opinion on such matter. See Cox, supra; Rizzo, supra. Furthermore, the argument that the VA examiner did not take into consideration the Veteran’s lay statements is incorrect as the examiner considered the Veteran’s statements in his rationale. Additionally, the evidence of record fails to support that the Veteran’s bilateral knee disabilities manifested within one year of his separation from service. Therefore, the Board finds that the Veteran cannot avail himself of the presumption concerning chronic diseases because arthritis was not shown within one year of discharge from active service. The Board also finds that direct service connection cannot be established because there is no nexus between his current disability and his in-service injury. (Continued on the next page)   Accordingly, the Board finds that the evidence of record is against a finding of service connection for bilateral knee arthritis. As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel