Citation Nr: 1808481 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-00 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for hypertension, to include as due to secondary to herbicide agent exposure and/or secondary to post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The issues of entitlement to service connection for a left knee disability and entitlement to service connection for hypertension, to include as due to herbicide agent exposure and/or secondary to PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has current tinnitus that began during active duty service. 2. In a November 1978 rating decision, the AOJ denied the Veteran's claim for service connection for a left knee disability. Although notified of the denial, the Veteran did not initiate an appeal. 3. Since the November 1978 AOJ denial, new evidence has been associated with the claims file that is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The RO's November 1978 denial of the claim for service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104; 20.302, 20.1103 (2017). 3. As additional evidence received since the AOJ's November 1978 denial is new and material, the criteria for reopening the claim for service connection for a left knee disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection - Tinnitus Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within one year from the date of separation from service. Tinnitus is considered to be organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet App. 258 (2015). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The Veteran was diagnosed with tinnitus at a June 2015 VA examination. The Veteran reported exposure to loud noises, such as helicopters, rocket and mortar fire, grenades, bazookas, and small arms fire while in combat. He reported a specific incident where a five-gallon water can fell on his head following rocket fire. He reported having ringing in his ears for several days following the incident. The examiner stated that there was no indication that the Veteran reported the onset of tinnitus while in service, and opined that it was less likely than not that the Veteran's tinnitus was a result of military noise exposure. The Board recognizes that the Veteran served in combat in the Republic of Vietnam. Based upon his military occupational specialty (MOS) as a rifleman and that he was awarded the Combat Action Ribbon, the Board accepts as true the Veteran's assertions that he was exposed to loud noise while in service and experienced ringing in his ears for several days after being hit in the head with a water can. The Veteran contends that tinnitus continued throughout service to the present. Since these events are consistent with the circumstances of combat service in Vietnam, the Board accepts the Veteran's account of the in-service injury. Furthermore, although the Veteran is not a medical expert, tinnitus is a disorder that is capable of lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Resolving all reasonable doubt in the Veteran's favor, his currently diagnosed tinnitus is a chronic disease that first manifested in service and has had continuous symptomatology from service to the present. As a result, entitlement to service connection for tinnitus is granted. II. New and Material Evidence - Left Knee Rating actions are final and binding based on evidence on file at the time a claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). A claimant has one year from notification of an AOJ decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the determination reached by the AOJ, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). By way of history, the Veteran was first denied service connection for a left knee disability in a November 1978 rating decision. The Veteran was notified of the decision regarding the left knee disability and of his procedural rights by letter dated in November 1978. He did not submit any new and material evidence or a notice of disagreement within a year of the decision. Thus, the November 1978 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran filed a new claim for service connection for a left knee disability in March 2009. In an August 2009 letter, the RO notified the Veteran that new and material evidence was necessary in order to reopen his claim. However, rather than determining whether new and material evidence had been submitted in the September 2009 rating decision, the RO adjudicated the claim on its merits and continued the denial of service connection. At the time of the November 1978 rating decision, the evidence of record consisted of the Veteran's service treatment records The evidence received since the prior final denial of November 1978 includes post service treatment records, private medical records and lay statements from the Veteran. Specifically, the Veteran was diagnosed with degenerative joint disease of the left knee. See December 2013 Physical Medicine Rehab Consult. The Board finds that the above-described evidence provides a basis for reopening the Veteran's claim for service connection for a left knee disability. At the time of the prior November 1978 AOJ denial, the evidence of record did not contain a current diagnosis, the Veteran's lay statements, and post service treatment records. The Board finds that the evidence is "new" in that it was not before agency decision makers at the time of the November 1978 denial of the claims for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it relates to the diagnosis and etiology of the claimed disabilities for which service connection is under consideration. While not in any way dispositive, as this newly received evidence, at a minimum, triggers VA's duty to obtain an examination and/or opinion, the Board finds that such evidence raises a reasonable possibility of substantiating the Veteran's service connection claim. See Shade, supra. Under these circumstances, the Board concludes that the criteria for reopening the Veteran's claim for service connection for a left knee disability are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER Service connection for tinnitus is granted. As new and material evidence to reopen the claim for service connection for a left knee disability has been received, to this limited extent, the appeal is granted. REMAND The Veteran's claims for service connection for a left knee disability and for hypertension, to include as due to herbicide agent exposure and/or secondary to PTSD, require additional evidentiary development. The Board recognizes that the Veteran has not been afforded a VA examination related to his left knee disability. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service, for the purpose of determining whether an examination is warranted, is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In this case, the Veteran reported left knee injuries during service, which he contends caused the present disability to his left knee. He acknowledges that he suffered a fractured left knee prior to service but asserts that any residual knee disability was aggravated by service. Service treatment records show several reports of left knee pain and left knee injury. The Board finds that the evidence surpasses the low threshold established by Locklear and McLendon. A remand is warranted in order to afford the Veteran a VA examination and to obtain a medical opinion related to his claimed left knee disability. Additionally, while the Veteran was afforded an August 2009 VA examination for hypertension, the Board finds the examination report inadequate for claims purposes. The Veteran's January 1970 active duty exit examination included a diagnosis of postural hypertension. The August 2009 examiner reported that the Veteran was diagnosed with hypertension in 1999, and it was controlled with medication. Upon physical examination, the Veteran's blood pressure was taken three times and determined to be within a normal range. The examiner diagnosed the Veteran with well-controlled hypertension and opined that hypertension was not caused by or a result of postural hypertension. However, the examiner failed to provide any rationale to support this opinion. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the August 2009 VA examination report failed to address the Veteran's assertions that his hypertension was caused by exposure to herbicide agents and/or was secondary to his service-connected PTSD. The Veteran's service records indicate that he served in Vietnam during the presumptive periods and is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307. Therefore, a new examination is required. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (stating that an adequate examination should consider all raised theories of entitlement). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's relevant ongoing VA treatment records not currently of record and request that the Veteran identify any private treatment he has received for his claimed disabilities. After the Veteran has signed the appropriated releases, those records not already a part of the claims file should be obtained and associated with the claims folder. If any records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left knee disability. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner is asked to respond to the following questions: (A) Is it clear and unmistakable (i.e., undebatable) that the Veteran's left knee disability existed prior to his entrance into active duty in January 1968? (B) If the answer to Question (A) is "yes", is it also clear and unmistakable (i.e., undebatable) that the Veteran's left knee disability was NOT aggravated beyond its natural progression during his period of active service from January 1968 to January 1970? (C) If the answer to either Question (A) or Question (B) is "no," assume as true that the Veteran entered service in January 1968 in sound condition, and that his left knee disability did not pre-exist service. Based on this assumption, is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability had its onset in, or is otherwise related to the Veteran's period of active duty service? The examiner's attention is directed to: *The December 1967 Report of Medical Examination indicating a two and a half inch scar on the Veteran's left knee and a notation indicating a fractured left knee in 1962. Upon clinical evaluation, the service physician indicated that the Veteran had normal lower extremities. *The January 1968 Health Record that indicated no defects upon examination by the Medical Detachment at Parris Island, South Carolina. *A February 1969 Sick Call Treatment Record reporting that the Veteran injured his left knee while playing football on February 8, 1969. *Service treatment records dated between March 1969 and December 1969 reflecting treatment for a left knee injury and pain. *The January 1970 service separation examination that reported left knee blunt trauma that was resolved. *The February 2010 medical record of Dr. D.S. reflecting treatment for a left knee disability between June 1987 and August 2003. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner is asked to respond to the following questions: (A) Is it as least as likely as not that (50 percent or greater possibility) the Veteran's hypertension had its clinical onset during service or is related to any in-service event, injury or disease, to specifically include his presumed in-service exposure to herbicide agents? (B) Is it as least as likely as not that (50 percent or greater possibility) the Veteran's hypertension was caused by his service-connected PTSD? (C) Is it as least as likely as not (50 percent or greater possibility) that the Veteran's hypertension has been aggravated beyond its natural progression by his service-connected PTSD? The examiner's attention is directed to: *The January 1970 service separation examination that reported postural hypertension. A rationale for all opinions expressed should be provided. 4. After all development has been completed, re-adjudicate all claims on appeal. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs