Citation Nr: 18160774 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-29 031 DATE: December 27, 2018 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for residuals of a right knee injury is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for residuals of a right knee injury is remanded. Entitlement to service connection for a left knee disability, including degenerative arthritis, is remanded. Entitlement to service connection for degenerative arthritis of the lower extremities is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for bilateral tinnitus is remanded.   FINDINGS OF FACT 1. A June 2006 rating decision denied a claim for service connection for residuals of a right knee injury; the Veteran did not timely perfect an appeal of the decision and VA did not actually or constructively receive new and material evidence within one year of its issuance. 2. Evidence received since the June 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for residuals of a right knee injury. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied a claim for service connection for residuals of a right knee injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, and the claim for service connection for residuals of a right knee injury is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to March 1985. This matter is on appeal of a March 2012 decision. In December 2012, prior to the issuance of a statement of the case (SOC), the Veteran submitted a VA Form 9, indicating he wished to have a video conference Board hearing before a Veterans Law Judge (VLJ). In a subsequent VA Form 9, submitted in June 2016 after the issuance of the SOC, the Veteran specifically indicated that he did not want an optional Board hearing. In correspondence received that same month, his attorney also notified the Agency of Original Jurisdiction (AOJ) that the Veteran did not wish to participate in a Board hearing. As such, the Board deems the Veteran’s earlier hearing request to be withdrawn and the record reflects that there has been no request for a Board hearing since the VA Form 9 was filed. 38 C.F.R. § 20.703. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence is a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Regardless of the AOJ’s determination, the Board must consider whether new and material evidence has been received to reopen a claim previously denied. Jackson v. Principi, 265 F.3d 1366, 1369; Barnett v. Brown, 83 F.3d 1380, 1383.   The Veteran contends that he is entitled to service connection for residuals of a right knee injury. His claim was originally denied in a June 2006 rating decision on the basis that there was no evidence of a chronic right knee disability in service or of right knee arthritis in service or within a year of discharge from service and no objective medical evidence of a chronic disability that was incurred or aggravated by service. The Veteran did not appeal the determination and VA did not actually or constructively receive new and material evidence within a year of the rating decision. Therefore, the June 2006 decision is final as to the denial of service connection for residuals of a right knee injury. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Thereafter, the Veteran filed a petition to reopen the claim in December 2011. The March 2012 rating decision declined to reopen the claim, finding new and material evidence had not been submitted. However, the later June 2016 SOC indicates that the claim was reopened but service connection continued to be denied. As noted above, regardless of the RO’s determination, the Board must first consider whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a right knee injury. Jackson v. Principi, 265 F.3d 1366, 1369; Barnett v. Brown, 83 F.3d 1380, 1383. The evidence of record at the time of the June 2006 decision consisted of the Veteran’s service treatment records (STRs) that show the Veteran was treated once in service for right knee complaints in July 1982. The assessment was ligament strain. There was no subsequent treatment in service and post-service VA and private treatment records of record in June 2006 showed no relevant complaints, findings, treatment or diagnoses. The evidence associated with the claims file after the June 2006 decision includes VA treatment records indicating X-ray evidence of right knee degenerative joint disease (DJD) as early as June 2012 and the April 2016 VA physician’s opinion addressing the etiology of the Veteran’s current right knee condition.   The VA medical records and evaluation are new, in that they were not previously of record. They further provide evidence regarding a current right knee disability, with X-ray evidence of DJD. Therefore, as the lack of credible and competent evidence of a current right knee disability was part of the basis for the denial of the claim in the prior decision, this new evidence clearly relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. New and material evidence has been received to reopen the claim for service connection for residuals of a right knee injury, and reopening the claim is warranted. 38 C.F.R. § 3.156(a). REASONS FOR REMAND On review of the record, the Board has found that additional development is necessary for the claims on appeal. 1. Service connection for residuals of a right knee injury, left knee disability, low back disability and degenerative arthritis in the lower extremities. The Veteran contends that his current degenerative arthritis of the lower extremities, as well as right knee, left knee and low back disabilities are related to his military service. He alleges that he injured his back and both knees during training in “Jump School” at Ft. Benning. He states that he did not report those injuries during service because he was concerned he would be kicked out of the military as a result. He further stated that he could not afford treatment for his symptoms after his discharge, but has had ongoing symptoms since service. The medical evidence of record documents that the Veteran has current diagnoses of DJD of the right and left knees, as well as degenerative changes in the lumbosacral spine, initially documented in June 2012 VA treatment records. The Veteran’s STRs document that he was treated in July 1982 for a right leg complaint. While partially illegible, the treatment record appears to indicate that the Veteran injured his right leg on “PJ” on the previous Tuesday. It is possible that this may indicate a parachute jump. The assessment was that he had a ligament strain. There are no subsequent relevant complaints, findings, treatment or diagnoses for any of the claimed disabilities during service. In April 2016, a VA physician reviewed the evidence of record in the Veteran’s claims file and provided an opinion regarding the etiology of his current right leg disability. The examiner opined that the Veteran’s current right leg disability (presumably documented degenerative changes) was less likely than not incurred in or caused by active service to include his documented July 1982 injury. In the rationale, the examiner indicated that the Veteran’s current condition was unlikely to have been caused by one incident in service as there was no objective evidence of continuity of symptoms since service and the current disability could as likely be the result of other unknown intercurrent events, as well as the natural process of aging that occurs particularly in weight-bearing joints. However, the Board finds this opinion inadequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner failed to address the Veteran’s lay evidence regarding the onset and continuity of symptomatology in the rationale. Therefore, remand is necessary to afford the Veteran an examination and provide an opinion on the etiology of his current right leg disability. The AOJ appears to have denied the Veteran’s other orthopedic claims in part because his military occupational specialty (MOS) of equipment records and parts specialist listed on his Form DD 214 make it unlikely he was required to train to do parachute jumps. However, the Veteran’s Form DD 214 shows that the listed MOS was only for 2 years and 11 months of the 6 years he served. Additionally, the Veteran’s STRs contain a December 1979 examination with the purpose of “Airborne” which indicates the Veteran was qualified for airborne. The Veteran’s service personnel records are not of record and it is unclear whether any attempt was made to secure them. On remand, the AOJ should obtain the Veteran’s complete service personnel records. After the service personnel records are associated with the claims file, the AOJ should attempt to verify whether the Veteran underwent any training at Ft. Benning that involved parachute jumps or had other airborne service. Thereafter, if it can be verified that the Veteran had training or duties that involved parachute jumps, he should be scheduled for an examination to obtain medical opinions addressing any relationship between his current low back, bilateral lower extremities and knees and his military service (to include any verified training in parachute jump school), with consideration of all pertinent service treatment records (including a right leg injury in July 1982). 2. Service connection for bilateral tinnitus is remanded. The Veteran alleges he currently has bilateral tinnitus as a result of his exposure to loud noises in service while assigned to an aviation unit and being around helicopters and planes on a daily basis. His Form DD 214 further shows he was awarded a sharpshooter badge, and may have further been exposed to loud noises on a gun range in association with acquiring this badge. The Veteran should be afforded an appropriate VA examination and to provide an opinion on the etiology of his current bilateral tinnitus. Finally, while the appeal is in remand status, all of the Veteran’s contemporaneous and relevant outstanding treatment records should also be obtained and associated with the claims file. 38 U.S.C. § 5103A(b). The matters are REMANDED for the following action: 1. Take all appropriate action to obtain and associate with the claims file the Veteran’s complete service personnel records.   2. Obtain any updated VA treatment records from June 2012 to the present. 3. After associating the above records, if any, with the electronic claims file, afford the Veteran a VA orthopedic examination by an appropriate medical professional to determine the current nature and etiology of any low back, right and/or left knee, and lower extremity disability, to include diagnosed degenerative arthritis, found to be present. Based on review of all the evidence of record, and the Veteran’s elicited history, the examiner is to state: a) Does the Veteran have a current low back, lower extremity, right and/or left knee disability, including any pain or other symptoms that cause functional impairment? b) Is it at least as likely as not (50 percent or better probability) that any diagnosed low back, lower extremity, right and/or left knee disability, including any symptoms identified as causing functional impairment, if a disability diagnosis is not made, had its onset in service or is otherwise related to his active service, or any incident therein? A complete rationale for all opinions must be provided that addresses the Veteran’s history of low back, right and left knee injuries during parachute jumps in training and ongoing symptoms since service, as well as the STR indicating a right leg injury in July 1982.   If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Afford the Veteran a VA examination by an appropriate medical professional to determine the current nature and etiology of any bilateral tinnitus found to be present. Based on review of all the evidence of record, and the Veteran’s elicited history, the examiner is to provide the following opinion: Is it at least as likely as not that the Veteran’s current bilateral tinnitus (50 percent or better probability) had its onset in service, was manifest to a degree of 10 percent or more within a year of the Veteran’s discharge, or is related to his active duty service or any incident therein, to include any military noise exposure including proximity to airplanes and helicopters or time on a gun range? A complete rationale for all opinions must be provided that addresses the Veteran’s reported military noise exposure, as well as any possible post-service noise exposure.   If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Wells-Green