Citation Nr: 19157828 Decision Date: 07/25/19 Archive Date: 07/25/19 DOCKET NO. 17-18 150 DATE: July 25, 2019 ORDER New and material evidence having not been received, the request to reopen the finally disallowed claim for service connection for bilateral hearing loss is denied. New and material evidence having not been received, the request to reopen the finally disallowed claim for service connection for tinnitus is denied. REMANDED Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling, is remanded. Entitlement to service connection for left knee osteoarthritis is remanded. Entitlement to service connection for right knee osteoarthritis is remanded. FINDINGS OF FACT 1. Rating decisions in October 2006 and December 2011 denied service connection for bilateral hearing loss and tinnitus; the Veteran did not file a timely notice of disagreement, and additional relevant evidence was not received with the appeal period. 2. The evidence received since December 2011 denial of service connection for bilateral hearing loss and tinnitus is either cumulative or redundant of prior evidence, does not relate to an unestablished fact necessary to substantiate the claims, or does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The December 2011 denial of service connection for bilateral hearing loss was final, and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5104, 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103 (2018). 2. The December 2011 denial of service connection for tinnitus was final, and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5104, 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103, 20.1100, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1959 to June 1967. In a May 2013 rating decision and April 2016 statement of the case, the agency of the original jurisdiction (AOJ) found that new and material evidence had not been received and declined to reopen the prior denials of service connection for bilateral hearing loss and tinnitus, and briefly addressed the merits and found that service connection was not warranted. Thus, the Board must address the petition to reopen as a threshold jurisdictional matter. In a September 2012 rating decision, the Veteran was denied service connection for left and right knee osteoarthritis. The Veteran submitted a Notice of Disagreement (NOD) in October 2012. A Statement of the Case (SOC) was issued in March 2014. The Veteran perfected the appeal (via a VA Form 9) dated April 2014. In a May 2013 rating decision, the RO increased the Veteran’s PTSD rating from 30 percent to 50 percent, effective September 2012. New and Material Evidence In general, decisions of the AOJ that are not appealed within one year of notice of decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim may be reopened if new and material evidence is received. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For the purposes of reopening, all new evidence received is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in or aggravated by service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Additionally, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, will be presumed to have been incurred in service if they manifested to a compensable degree within one year following separation from service; or, if noted in service and not shown to be chronic, continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.303(b); 3.307. 3.303(a)(3). In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. The AOJ initially denied the Veteran’s October 2005 claims for bilateral hearing loss and tinnitus in an October 2006 rating decision. The Veteran was notified of this decision and his appellate rights at that time, and he did not initiate an appeal, nor was additional evidence received within the appeal period. Therefore, the October 2006 AOJ decision became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Although the Veteran’s electronic file identifies service treatment records as having been received in 2014, this appears to the date when they were uploaded to the electronic file. The records are not date-stamped as to the date of receipt, and the October 2006 rating decision reflects that those records were in the file and reviewed at that time. Thus, no relevant service records were received after the 2006 decision to render it not final. See 38 C.F.R. § 3.156(c). The evidence on file at the time of the October 2006 rating decision consisted of the service treatment records and VA audiological examination reports in August and September 2006, at which time the Veteran related a history of military noise exposure, while working as an ammunitions specialist and using forklifts to move ammunition in Germany and Vietnam. Since separation from service, the Veteran related that he that he worked as a bus driver, and that he first noticed ringing in both ears in the 1970’s while on the buses. The Veteran denied recreational noise exposure. The August 2006 VA audiology examination reveals a bilateral hearing loss disability as VA defines it and reflects a diagnosis of high frequency bilateral sensorineural hearing loss and tinnitus. The VA examiner in September 2006 opined that since there was no shift in hearing in either ear from enlistment to separation, the Veteran’s hearing loss was not related to military noise exposure, explaining that hearing loss caused by acoustic trauma and noise exposure happens at the time of exposure and not years later. In denying service connection for bilateral hearing loss and tinnitus in October 2006, the AOJ found that the Veteran’s bilateral hearing disability was not related to service, including military noise exposure, and that his tinnitus did not have its onset during service, noting that the Veteran first noticed ringing in ears in the 1970’s, nearly three years after service. This rating decision reflects that a current bilateral hearing disability and tinnitus as well as an in-service injury (i.e., military noise exposure) were established, but the element of a nexus between the in-service injury and current disability, including continuity of symptomatology, was not established. In September 2010, the submitted a request to reopen his claims for service connection for bilateral hearing loss and tinnitus, claiming that such conditions were due to military noise exposure, consistent with his prior claims. The AOJ denied these claims in a December 2011 rating decision, finding that new and material evidence had not been received to reopen the previously denied claims. The Veteran was notified of this decision and his appellate rights at this time, and he did not initiate an appeal, nor was relevant evidence submitted within the appeal period. In this regard, the Board notes the September 2012 statement by the Veteran, requesting to reopen his claims and asserting again that his bilateral hearing loss and tinnitus are a direct result of his military noise exposure as an ammunitions specialist. Although received within the one-year appeal period, the Veteran’s statement is not new and material because it relates to the same facts and contentions that have already been considered in his prior claims. Nor does this statement indicate an intent on the part of the Veteran initiate an appeal of 2011 AOJ decision, and as such this statement may not be construed as a NOD. See, 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Therefore, the 2011 AOJ decision became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. In the 2011 denial, the AOJ found that there was still no evidence to establish an onset of a hearing disability and tinnitus during service or to a compensable degree within one year of discharge; and that there is still no evidence of a nexus, or link, between the Veteran’s bilateral hearing loss and tinnitus and military noise exposure, including continuity of symptomatology. This rating decision continues to reflect a current bilateral hearing loss disability and tinnitus as well as an in-service injury (i.e., military noise exposure) were established, but the element of a nexus between an in-service injury and current disability was not established. The AOJ accepted the Veteran’s September 2012 statement as request to reopen the prior disallowance of the claims of service connection for bilateral hearing loss and tinnitus. The evidence associated with the claims file since the December 2011 decision consists of the Veteran’s 2012 statement that he has a bilateral hearing loss disability and tinnitus, which he attributes to his exposure to loud noise as an ammunition specialist while on active duty. No other lay or medical that is germane to bilateral hearing loss and tinnitus has been received into the record. The Board finds that the Veteran has submitted no evidence which tends to indicate a link, or nexus, between his current bilateral hearing loss and tinnitus and service, including his military noise exposure. That is, his reports of in-service noise exposure as an ammunition specialist were already of record and are cumulative and redundant of the contentions that were previously considered by the AOJ in the October 2006 and December 2011 decisions. Therefore, as new and material evidence has not been received, the criteria to reopen the finally disallowed claims of service connection for bilateral hearing loss and tinnitus are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to an increased rating for PTSD, currently rated 50 percent, is remanded. The Veteran contends that a rating in excess of 50 percent is warranted for his service-connected PTSD. The Veteran was last afforded a VA examination in December 2012, at which time the examiner noted that the Veteran had a diagnosis of PTSD. The examiner noted that the Veteran’s condition caused occupation and social impairment with reduced reliability and productivity. At the time of examination, the Veteran’s symptoms included a depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a March 2017 lay statement, authored by the Veteran’s wife (M.L.), she stated that the Veteran struggled to “keep his emotions in check and not go off the chain.” She also stated that the Veteran loses complete control, has severe sleep disturbances, and that she believed that he contemplated taking his life. She further stated that the Veteran was taking medication, but that she did not notice an improvement in his mental health status. In a March 2017 VA Form 9, the Veteran stated that he was currently participating in mental health counseling sessions. He also stated that he was taking medication to relieve his suicidal ideations, anxiety, depression, and irritability. An October 2018 VA mental health outpatient note reflects that that the Veteran’s medication dosage for the residuals of his PTSD symptoms was increased. Here, the most recent VA examination is nearly seven years old and there is evidence in the Veteran’s claims file of his PTSD worsening due to increased symptoms. Upon remand, the Veteran should be afforded a new VA examination to assess the current level of severity of his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for left knee osteoarthritis. 3. Entitlement to service connection for right knee osteoarthritis. The Veteran contends that service connection is warranted for osteoarthritis of the left and right knee. The Veteran’s service treatment records reflect that the Veteran suffered a left knee contusion and injury after falling on railroad tracks in 1962. Additionally, the Veteran’s service treatment records reflect that the Veteran suffered right knee pain and an injury after falling during a basketball game in 1963. In a May 1967 Report of Medical Examination, conducted at separation, the Veteran’s lower extremities were deemed clinically normal. In a May 1967 Report of Medical History, also conducted at separation, the Veteran checked “yes” to having a trick or locked knee. The Veteran did not specify which knee he was referring to, and the examiner did not further comment as to the Veteran’s claimed knee condition. The Veteran was afforded a VA knee and lower leg examination in February 2012. The examiner noted that the Veteran suffered a left knee abrasion in July 1962 and a mild right knee sprain in April 1963. The examiner also diagnosed the Veteran with osteoarthritis of both knees. At the time of the examination, the Veteran stated that he has experienced intermittent, progressively worsening bilateral mechanic knee pain since the injuries occurred since service. The Veteran also noted that since separation, his bilateral knee conditions have only been treated conservatively with outpatient treatment. He also stated that he experiences daily moderate bilateral mechanical knee pain and rare episodes of effusion and instability. The examiner opined that the Veteran’s left and right knee conditions were less likely than not incurred in or caused by service. The examiner rationed that the Veteran’s bilateral knee osteoarthritis was related to chronic degenerative changes associated with aging. In an April 2014 VA Form 9, the Veteran noted that his military service and medical records support his claim for service connection of the bilateral knees. Here, there is supportive evidence to support that the Veteran injured his left and right knees during service. The Board finds that a remand is required as the February 2012 VA examiner did not provide adequate rationale in his opinion, with regard to the Veteran’s knee disorders. In this regard, the examiner indicated that the Veteran’s left and right knee conditions were related to aging, without any discussion of his left and right knee injuries and treatment during service. Therefore, an additional examination and opinion are required to address the etiology of the Veteran’s left and right knee disorders and for an opinion as to whether such disorders onset during service or is otherwise related to service, including the documented 1962 and 1963 in-service treatment. The matter is REMANDED for the following action: (Continued on the next page)   1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD. (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and right knee disorder. The examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) related to an in-service injury, event, or disease, including as due to a fall on railroad tracks in 1962 and a fall while playing basketball in 1963. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.