Citation Nr: 18160827 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 15-24 667 DATE: December 27, 2018 ORDER The petition to reopen a claim for service connection for a cervical spine condition is denied. The petition to reopen a claim for service connection for a lumbar spine condition is denied. New and material evidence having been received, the claim of entitlement to service connection for residuals of a concussion, also claimed as a traumatic brain injury (TBI), is reopened. To that extent only, the appeal is granted. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for sleep apnea, to include as secondary to residuals of a concussion or TBI, is remanded. Entitlement to service connection for residuals of a concussion/TBI is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for a cervical spine condition was previously denied by a March 2003 rating decision because there was no evidence that the disability was incurred in or caused by service. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. The evidence received subsequent to the March 2003 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for a cervical spine condition. 3. The Veteran’s claim of entitlement to service connection for a lumbar spine condition was previously denied by a March 2003 rating decision because there was no evidence that the disability was incurred in or caused by service. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 4. The evidence received subsequent to the March 2003 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for a lumbar spine condition. 5. An August 1983 rating decision denied service connection for residuals of a concussion. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 6. The evidence received subsequent to the August 1983 final denial of the claim for service connection for residuals of a concussion/TBI is new, and is also material because it raises a reasonable possibility of substantiating the claim. 7. The Veteran does not have a current diagnosis of a left knee condition. 8. The Veteran does not have a current diagnosis of a right knee condition. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the claim of service connection for a cervical spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been submitted to reopen the claim of service connection for a lumbar spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received, the criteria to reopen the claim for service connection for residuals of a concussion/TBI have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1971 to March 1974. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. 1. Cervical Spine Condition The RO originally denied service connection for a neck condition, to include degenerative changes, in August 1995, finding that there was no evidence of a nexus to service and the condition did not manifest within one year of separation. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b). Most recently, the RO declined to reopen the claim in a March 2003 rating decision. This decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. The evidence added to the record since the last prior denial includes additional VA treatment records, lay statements submitted by the Veteran, and treatment records that are cumulative and redundant of the evidence of record at the time of the prior final denial. In view of the foregoing, the Board finds that while the evidence added to the record is “new” to the extent it was not previously on file, it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim, as it does not pertain to the issue of whether there is a nexus to the Veteran’s active service. Thus, new and material evidence has not been received to reopen the previously denied claim in accord with 38 C.F.R. 3.156 (a). Accordingly, the benefit sought on appeal must be denied. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). 2. Lumbar Spine Condition The RO originally denied service connection for a thoracic spine condition, to include degenerative changes, in August 1995, finding that there was no evidence of a nexus to service and the condition did not manifest within one year of separation. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b). In a March 2003 rating decision, the RO denied service connection for lumbar spine degenerative disc disease because there was no evidence of a nexus to the Veteran’s military service. This decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. The evidence added to the record since prior final denial includes VA treatment records, lay statements, and treatment records that are cumulative and redundant of the evidence of record at the time of the prior final denial. In view of the foregoing, the Board finds that while the evidence added to the record is “new” to the extent it was not previously on file, it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim, as it does not pertain to the issue of whether there is a nexus to the Veteran’s active service. Thus, new and material evidence has not been received to reopen the previously denied claim in accord with 38 C.F.R. 3.156 (a). Accordingly, the benefit sought on appeal must be denied. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). 3. Residuals of a Concussion/Traumatic Brain Injury The RO originally denied service connection for residuals of a concussion in August 1983, because there was no evidence of a neurological or psychiatric disease found. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b). In the rating decision on appeal, the RO declined to reopen the Veteran’s claim for service connection for residuals of a concussion or TBI because the Veteran did not submit new and material evidence in support of his claim. The Board is required to address the issue of new and material evidence in the first instance. If the Board determines that new and material evidence has not been received, the adjudication of the claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that the claim for service connection was originally denied because there was no evidence of a current neurological or psychiatric disease and the Veteran’s concussion symptoms had resolved. New evidence received subsequent to the August 1983 rating decision includes VA treatment records reflecting current diagnoses of depressive disorder; major depression, recurrent, moderate; and intermittent explosive disorder. The Veteran has also submitted various lay statements and buddy statements detailing behavioral changes since the 1972 fall. He has also submitted medical articles relative to psychiatric disorders and TBI. Given the current psychiatric diagnoses, the Board finds that the new evidence received since the August 1983 rating decision is material to reopen a claim of service connection for residuals of a concussion/TBI, as it pertains to the issue of whether the Veteran has a neurological or psychiatric disability related to his military service. When considered with the previous evidence of record, the new evidence, if substantiated, would relate to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence sufficient to reopen the Veteran’s claim of service connection for residuals of a concussion/TBI has been received, and the claim is reopened. See 38 C.F.R. § 3.156 Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “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)). Bilateral Knee Conditions The Veteran contends that he has bilateral knee disabilities as a result of his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left or right knee disability, and has not had any diagnosed knee conditions at any time during the pendency of the claim or proximate to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The available service treatment records are silent as to any complaints or treatment for knee conditions. Post-service, VA and private treatment records do not show any diagnosis or treatment of knee conditions. VA treatment records show the Veteran has complained of knee pain. However, the Veteran is not competent to provide a diagnosis of a knee disability. This issue is medically complex, as it requires knowledge of the musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record indicating that the Veteran does not have a diagnosed bilateral knee disability. Finally, the Board is cognizant of the recent holding in Saunders v. Wilkie, which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. In this case, however, the Veteran does not claim, and his medical records do not show that he experiences, any functional impairment due to his subjective knee pain. As such, the Veteran’s knee pain does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. As the Veteran does not have a current diagnosis of a bilateral knee disability, or functional impairment of the knees due to pain, there is no current disability and the first element of service connection has not been met. Therefore, service connection for a bilateral knee disability must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service connection for sleep apnea The Veteran contends that his obstructive sleep apnea is related to his active service, including as a result of residuals of a concussion or TBI. The Veteran was diagnosed with obstructive sleep apnea in April 2017 following a sleep study. To date, the Veteran has not received a VA examination to determine whether his obstructive sleep apnea is directly related to his military service. A VA examination is necessary to determine whether the Veteran’s obstructive sleep apnea is related to his active service. 2. Service connection for residuals of a concussion/traumatic brain injury The Veteran contends that he suffers from residuals of a concussion or TBI in connection with an in-service fall from a second story window in 1972. He further asserts that his current psychiatric disorder is related to the 1972 fall. Service treatment records show that administrative separation was recommended due to the Veteran’s diagnosis of schizoid personality. In January 1974, the Veteran was diagnosed with mild depression. The Veteran received a neuropsychiatric examination in July 1983 and he reported a concussion and fractured wrist after sleep-walking out of a second story window in 1972. The examiner determined that there was no evidence of a neurological or psychiatric disease. It was noted that the Veteran’s history of cerebral concussion was in remission. The RO then denied service connection for residuals of concussion in an August 1983 rating decision because there was no evidence of a neurological or psychiatric disease found. Post-service, VA treatment records reflect current diagnoses of depressive disorder; major depression, recurrent, moderate; and intermittent explosive disorder. The Veteran submitted various lay statements and buddy statements noting behavioral changes in the Veteran following the 1972 fall and his separation from service. He has also submitted medical articles relative to the development of psychiatric disorders and TBI. In light of the Veteran’s current psychiatric diagnoses, a remand is required in order to obtain a medical examination and opinion addressing the nature and etiology of any psychiatric disorder or residuals from the Veteran’s in-service concussion/TBI. 3. Increased rating for left ear hearing loss The Veteran contends that his service-connected left ear hearing loss is worse than initially evaluated. A 0 percent rating is currently effective from October 7, 2014. The Veteran was afforded a DBQ examination for his hearing loss in October 2014, and the examination was adequate for rating purposes at that time. However, this examination is unduly remote, as it is over 4 years old. The Board is unable to determine the current severity of the Veteran’s service-connected left ear hearing loss, and concludes that a remand is needed to afford the Veteran an opportunity to undergo updated an VA examination to assess the current nature, extent, and severity of this disability and to obtain any outstanding VA treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered “contemporaneous”); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). 4. Service connection for right ear hearing loss The Veteran seeks service connection for his right ear hearing loss. The Veteran received a VA examination for his right ear hearing loss in October 2014 and the examination was adequate at that time. The examiner found that the Veteran did not have right ear hearing loss for VA purposes. However, this examination is unduly remote, as the examination was conducted over four years ago. The Veteran has since asserted that he currently has right ear hearing loss. As such, a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s claimed right ear hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include any residuals from the 1972 fall. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current residuals of traumatic brain injury (TBI). The examiner should review the claims file in conjunction with the examination, including the available service treatment records and all pertinent post-service VA treatment records. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any current residuals of TBI are related to any injury in service, including the head injury reported by the Veteran in connection with the 1972 fall. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any current psychiatric disorder. The examiner should diagnose all psychiatric disabilities present. The examiner must review the claims file and this remand, and should note that review in the report. With respect to any psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability is related to any incident of the Veteran’s active duty service, to include the 1972 fall and concussion, or the psychiatric disabilities noted in service, including schizoid personality and mild depression. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss. All necessary tests should be conducted, and the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to left ear hearing loss alone and discuss the effect of the Veteran’s left ear hearing loss on any occupational functioning and activities of daily living. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ear hearing loss. The examiner must opine whether the Veteran’s right ear hearing loss is at least as likely as not related to the Veteran’s period of active service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel