Citation Nr: 18159451 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-06 497A DATE: December 19, 2018 ORDER The application to reopen the previously denied claim for service connection for bilateral knee disability is granted. The application to reopen the previously denied claim for service connection for epigastric pain is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for epigastric pain claimed as gastritis is remanded. FINDINGS OF FACT 1. In a January 1997 decision, the Regional Office (RO) denied claims of entitlement to service connection for a bilateral knee condition and epigastric pain; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. Evidence added to the record since the January 1997 decision relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. 3. The Veteran’s tinnitus was caused by military noise exposure during active duty service. CONCLUSIONS OF LAW 1. The January 1997 RO decision that denied the claims for service connection for a bilateral knee condition and epigastric pain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a bilateral knee condition and epigastric pain have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156 (a). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to July 1982, and December 1990 to September 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico which denied the application to reopen the Veteran’s claims for service connection for a bilateral knee condition and gastritis, and denied service connection for tinnitus. In August 2014, the Veteran submitted his notice of disagreement, was issued a statement of the case in February 2015, and in March 2015 perfected his appeal to the Board. The Veteran requested a video conference hearing before a Veterans Law Judge on his March 2015 VA Form 9, but in a subsequent letter submitted by the Veteran’s attorney (by whom he was represented at that time), cancelled the request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). New and Material Prior to the filing of the current claims, the Agency of Original Jurisdiction (AOJ) denied service connection for, among other things, a bilateral knee condition and epigastric pain in a January 1997 rating decision and the Veteran did not initiate an appeal or submit new and material evidence within a year. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §20.1100. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. 38 C.F.R. § 3.156 (b). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence available at the time of the January 1997 rating decision included service treatment records, VA post-service treatment records from January 1992 to February 1994, insurance fund records, and VA examination reports from March 1992 and September 1996. The AOJ’s denial of each claim hinged in part on the lack of a specific diagnosis as to either claimed disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision thus became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since the January 1997 prior denial includes VA treatment records which note treatment for knee pain, statements regarding an in-service injury, a diagnosis of degenerative joint disease, and a diagnosis of gastritis. This new evidence is not redundant of the evidence of record, and raises a reasonable possibility of substantiating the claim as it provides previously unsubmitted evidence elaborating on the nature of the current disabilities, to include new and specific diagnoses. Therefore, the evidence received since the January 1997 prior denial is new and material, thus the application to reopen the claim for service connection for a bilateral knee disability and gastritis is granted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for tinnitus The Veteran claims that his tinnitus is a result of military noise exposure during active duty service. The Veteran’s April 1991 Medical History Report upon discharge does not note any issues concerning the Veteran’s hearing or ears. A July 2014 disability benefits questionnaire noted the Veteran’s complaint of recurrent tinnitus which the Veteran stated began in the 1990’s after active duty in Operation Desert Storm. The examiner stated the Veteran’s tinnitus was at least as likely as not a symptom associated with his diagnosis of clinical hearing loss, and at least as likely as not related to exposure to noise while he was in service as per service treatment records. The examiner explained that it is well known that prolonged exposure to high intensity noise levels like the military type can cause damage to auditory structures resulting in hearing loss. The examiner noted the Veteran was exposed to military noise from heavy vehicles, mortars, and the firing range and that tinnitus is a subjective symptom usually considered secondary to hearing loss which the Veteran currently presents at high frequencies. April 2018 VA treatment notes indicate the Veteran denied tinnitus. Tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that ringing in the ears is capable of lay observation). Here, the Veteran has reported recurrent tinnitus since the 1990’s after active duty service in Operation Desert Storm, and while the April 2018 VA treatment notes recorded during a sleep study screening indicate the Veteran denied tinnitus, it is reasonable to conclude that his tinnitus was not severe enough at the time of treatment to report it as the primary reason for the treatment was not for his tinnitus. Therefore, considering the relatively consistent complaints of tinnitus since service, evidence of a current disability has been demonstrated. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim). As to the in-service injury element, there is no reason to dispute the Veteran’s credible lay statements concerning his in-service noise exposure, particularly given his Persian Gulf War service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). The in-service injury element has therefore been met. In addition, the Veteran’s statements that he experienced tinnitus in and since service are competent and credible. There is nothing in the claims file that indicates the Veteran’s lay statements are not credible with respect to experiencing continuous symptoms since active military service. In addition, the July 2014 examiner concluded that the Veteran’s tinnitus was at least as likely as not related to in-service noise exposure and provided a clear and thorough rationale to support his conclusion, thus his opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There are no medical opinions to the contrary of record. For the foregoing reasons, the evidence weighs in favor of the Veteran’s claim for service connection for tinnitus and entitlement to service connection for this disability is therefore warranted. REASONS FOR REMAND Entitlement to service connection for bilateral knee disability and Gastritis The Veteran contends that his bilateral knee pain is the result of two accidents wherein he injured his knees during active duty service in the Persian Gulf. He stated that since the accidents he has suffered chronic and severe pain in his knees, and that prior to the accidents he had no history of knee problems. March 1991 service treatment records indicate the Veteran complained of left knee pain, but denied any injury to the knee and stated the pain is localized in the knee and does not radiate. The records also note tendonitis of the left knee. The Veteran’s April 1991 medical history report upon separation from service notes the Veteran complained of swollen or painful joints, and a “trick” or locked knee. January 1992 post-service treatment records note the Veteran complained of right knee pain, but denied numbness and tingling. September 1996 post-service treatment records note the Veteran’s right knee was normal with no bony or joint pathology seen. A November 1996 VA examination report notes the Veteran suffered pain around the right knee joint, but denied pain in the left knee. February 1997 private post-service treatment records indicate the Veteran had 2 accidents in service, in February 1991 and May 1991, wherein he sustained injuries to his knees, and since these injuries he suffers chronic and severe pain. December 1998 post-service treatment records note the Veteran was treated for knee pain. September 2013 VA treatment records note the Veteran stated he had bilateral arthralgias of the knees, mostly related to weather changes. October 2016 VA treatment records note the Veteran was evaluated for left knee pain after he felt an acute pop when he put weight over his knee. The Veteran also reported that he did not suffer trauma, but had trauma during active military service. November 2016 VA treatment notes indicate the Veteran was diagnosed with mild degenerative joint disease of the left knee. November 2018 VA treatment notes indicate the Veteran was treated for left knee pain. The Veteran also contends that his gastritis is related to his active duty service. Private treatment records from February 1990 during service indicate the Veteran was treated for epigastric pain. The Veteran’s April 1991 medical history report upon separation does not note any issues with indigestion, or intestinal trouble. September 1993 private treatment records note a diagnosis for chronic cholecystitis and cholelithiasis. January 2003 VA treatment notes indicate the Veteran was diagnosed with gastritis. April 2017 VA treatment notes indicate that the Veteran underwent an esophagogastroduodenoscopy which found the Veteran suffered from gastritis. Unfortunately, the Board cannot make a fully-informed decision on the issues of service connection for bilateral knee disability and gastritis because no VA examiner has opined whether the Veteran’s bilateral knee disability or gastritis are etiologically related to service. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As previously noted, the Veteran’s September 2013 VA treatment notes indicate the Veteran suffered bilateral knee pain, his November 2016 VA treatment notes provide a diagnosis for degenerative joint disease of the left knee, and April 2017 VA treatment notes indicate the Veteran suffers from gastritis, thus competent evidence of current disabilities has been demonstrated. Additionally, the Veteran’s lay statements that his bilateral knee disability was caused by 2 in-service accidents, and private treatment records noting treatment for epigastric pain during service provide competent evidence that his bilateral knee disability and gastritis may be associated with service. However, there is insufficient evidence of a nexus between the Veteran’s in-service symptoms and injury, and his current diagnoses to decide the claim, thus the VA’s duty to obtain an examination is triggered. An examination is needed to obtain a medical opinion as to the nature and etiology of the Veteran’s current bilateral knee disability and gastritis. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his bilateral knee disability. The claims file must be sent to the physician for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee disability is related to his military service, to include consideration of the Veteran’s reports of two in-service accidents. 2. Schedule the Veteran for a VA examination to determine the etiology of his gastritis. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran’s gastritis is related to his military service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel