Citation Nr: 1806351 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-26 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability 2. Entitlement to service connection for a right knee disability, including as secondary to the service-connected left fifth metatarsal fracture with osteoarthritis. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A July 2012 rating decision continued a previous denial of service connection for a right knee condition. Similarly, a January 2016 rating decision, in pertinent part, denied service connection for bilateral tinnitus. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing. A transcript of the proceeding is of record. FINDINGS OF FACT 1. In a final decision dated in December 2006, the RO denied the Veteran's claim of entitlement to service connection for a right knee condition. 2. Evidence received since the final December 2006 RO decision is both new and material, and raises a reasonable possibility of substantiating the underlying claim. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence is in relative equipoise as to whether his status-post total right knee replacement with traumatic arthritis is secondary to the service-connected left foot disability. 4. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed bilateral tinnitus had its onset during his active military service. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria for reopening the claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2017). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for status-post total right knee replacement with traumatic arthritis have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. New and Material Evidence to Reopen Claim VA must reopen a finally adjudicated claim when new and material evidence is submitted regarding the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence that was not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. Id. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of reopening a claim, the evidence is presumed credible unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In a July 2012 rating decision, the RO continued the previous denial of service connection for a right knee condition. Irrespective of any decision by the RO to reopen an appeal, the Board must first make the threshold determination of whether there is new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Among the relevant evidence added to the record since the last final denial is a January 2007 private medical opinion, as well as the Veteran's August 2017 testimony before the undersigned VLJ, addressing the nature and etiology of his right knee condition. In this case, the Board finds that this evidence is new, as it was not previously associated with the record. Additionally, this evidence is also material, as it raises a reasonable possibility of substantiating the appellant's claim. Thus, the Board finds that new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a right knee condition. III. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. IV. Service Connection for Tinnitus The Veteran is claiming entitlement to service connection for tinnitus, which he contends began as a result of noise exposure in service. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the evidence is at least in equipoise with respect to whether the Veteran's tinnitus had its onset during service. Thus, this claim will be granted. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of bilateral tinnitus. See October 2015 VA Examination Report. Additionally, the Veteran is competent to state that he now has tinnitus. See Charles v. Principi, 16 Vet. App 370, 374 (2002) ("ringing in the ears is capable of lay observation"). As a result, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. Initially, the Board notes that the Veteran's DD Form 214 reflects that his military occupation specialties were Track Vehicle Repairman (three years, seven months) and Small Arms Repairman (two years, five months). Also, his service personnel records confirm that he received rifle sharpshooter badges. The Veteran testified at his Board hearing that he first began to experience a constant ringing during his time in the Marine Corps as a tank mechanic and "shoot[ing] a live deuce 50 cal machine gun." See August 2017 Board Hearing Transcript at 7-8. Excessive noise exposure is consistent with the circumstances, conditions, and hardships of the Veteran's service environment. Accordingly, the Board finds that the evidence establishes the Veteran was exposed to loud noise (acoustic trauma) while in service. Similarly, in a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) awarded him service connection for bilateral hearing loss. Based on evidence of service in a military occupation consistent with exposure to high levels of noise and acoustic trauma, the remaining question before the Board is whether the Veteran's currently diagnosed tinnitus is related to his active military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records do not document any evidence suggestive of tinnitus or ringing in the ears. In October 2015, the Veteran underwent a VA audiology examination, where he was diagnosed with bilateral hearing loss and tinnitus. The Veteran reported experiencing a constant, bilateral "buzzing" since service. The examiner indicated that the Veteran's bilateral hearing loss was at least as likely as not the result of his military service due to the high probability of noise exposure, significant threshold shift at 3000 Hertz (Hz) in both ears while in service, and a lack of noise exposure post-discharge. However, the examiner further indicated that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In support of this determination, the examiner noted the lack of any reports of tinnitus being made during service and the absence of any specific noise trauma that occurred in service that was connected to the onset of tinnitus. In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. The Veteran served in a military occupation consistent with exposure to high levels of noise and acoustic trauma. The lay and medical evidence shows that he now has bilateral tinnitus, as well as is in receipt of service connection for bilateral hearing loss. The Board recognizes that the Veteran is competent to testify that he developed ringing in his ears in service and that it has continued ever since, due to tinnitus being a condition for which lay observation is competent to establish the presence of the disability. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the Board finds no reason to question the credibility of the Veteran's assertions of tinnitus dating back to his time of active service. While the October 2015 VA audiological examination contained a negative etiological opinion regarding the Veteran's bilateral tinnitus, the remaining evidence of record shows a positive connection between his documented in-service acoustic trauma and his current hearing related impairments. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). The evidence supporting the onset of chronic bilateral tinnitus in service is at least in equipoise with that against the claim. Thus, the Veteran is entitled to service connection for tinnitus. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Service Connection for Right Knee As noted above, service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service, if it is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. For these claims, establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Here, the Veteran is seeking service connection for a right knee disability, which he contends is attributable to his service-connected left fifth metatarsal fracture with osteoarthritis. In January 2007, Dr. T.Y., a private chiropractor, submitted a medical opinion indicating that the Veteran's right knee condition "was a secondary effect from a long-term weight-bearing shift to the opposite side of the original insult as a compensatory measure of the body favoring the left side." Dr. T.Y. also stated that the Veteran underwent "a reconstructive right knee surgery to correct the secondary trauma from the shift in weight-bearing, yet still suffers from ongoing pain in both the right knee and left ankle and foot." In doing so, Dr. T.Y. noted that the Veteran was currently receiving treatment at this facility for these issues. More recently, the Veteran was afforded a VA examination in October 2016, where he was diagnosed with status-post total right knee replacement in 2005 with residual traumatic arthritis. Following physical evaluation and a thorough review of the medical evidence of record, the examiner concluded that the Veteran's current right knee condition was less likely than not proximately due to or the result of his service-connected left foot disability. In support of this determination, the examiner indicated that while medical records show evidence of extensive treatment for the left foot conditions, there is no evidence of significant gait abnormality that would biomechanically alter the knee joints. The examiner also noted that obesity is a strong risk factor for developing lower extremity arthritis, as well as indicated that advancing age and joint trauma can also predispose the development of arthritis. In this case, the Board finds the October 2016 VA medical opinion to be inadequate, because the primary basis for the examiner's negative etiological opinion was due to an apparent lack of evidence "of significant gait abnormality that would biomechanically alter the knee joints." However, post-service medical records show evidence of a "long-term weight-bearing shift" on the right. See, e.g., October 1996 VA Feet Examination Report (indicating that "[t]he biomechanics of walking have been altered by [the Veteran's] fracture and undoubtedly this is an aggravating for his right knee pain, [with] weight being transferred from the left extremity to the right side which has had a ligamentous injury); see also Dr. T.Y.'s January 2007 Statement. Therefore, the Board is assigning less probative weight to the October 2016 VA medical opinion than to Dr. T.Y.'s January 2007 statement. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Accordingly, given the favorable nexus evidence of record, the Board finds that the evidence of record supports the establishment of service connection for status-post total right knee replacement with traumatic arthritis as secondary to the service-connected left foot disability. 38 C.F.R. § 3.310. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Therefore, in this case, the Veteran is entitled to service connection for status-post total right knee replacement with traumatic arthritis as secondary to a service-connected disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to service connection for tinnitus is granted. 2. Entitlement to service connection for status-post total right knee replacement with traumatic arthritis, as secondary to the service-connected left fifth metatarsal fracture with osteoarthritis, is granted. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs