Citation Nr: 20004491 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 16-38 044 DATE: January 23, 2020 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for left knee disability, to include ACL sprain and osteoarthritis is reopened and service connection for left knee disability, to include ACL sprain and osteoarthritis is granted. Entitlement to service connection for right knee disability, to include ACL sprain and osteoarthritis, secondary to left knee disability is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a psychiatric disorder, to include depressive disorder, not otherwise specified (NOS) and alcohol use disorder, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. An October 2007 rating decision denied service connection for a left knee disability. The rating decision was not appealed, nor was new and material evidence received within the appeal period. The October 2007 rating decision is final. 2. The evidence submitted by the Veteran since the October 2007 rating decision regarding his left disability is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s left knee disability, to include ACL sprain and osteoarthritis, was aggravated beyond its natural progression by his military service. 4. The Veteran’s right knee disability, to include ACL sprain and osteoarthritis, is caused by, or proximately due to, his left knee disability. CONCLUSIONS OF LAW 1. The October 2007 rating decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(c), 20.1103. 2. Since the October 2007 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a left disability; and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left knee disability, to include ACL sprain and osteoarthritis, on the basis of in-service aggravation have been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for right knee disability, to include ACL sprain and osteoarthritis, secondary to left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1984 to November 1987, and from February 15, 1991 to February 23, 1991. This appeal comes to the Board of Veterans’ Appeals (Board) from the following Department of Veterans Affairs (VA) rating decisions of the Agency of Original Jurisdiction (AOJ): August 2011, July 2013, and September 2014. The Veteran appeared before the undersigned Veterans Law Judge at a July 2019 Board hearing. A transcript of that hearing has been associated with the claims file and has been reviewed by the Board. New and Material Evidence Prior decisions are final. However, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran’s claim for service-connection for a left knee disability was originally denied in an August 1994 rating decision on the basis that his service in February 1991 did not permanently aggravate a preexisting injury sustained prior to his second period of active duty. The AOJ noted that the Veteran had sustained a work-related left knee injury in May 1990 and underwent arthroscopic repair of the ACL later in May 1990. The AOJ noted further that when the Veteran was seen for left knee pain in service in February 2991, he reported that he had been scheduled for additional surgery but had been recalled to active duty before that could be accomplished. He was found not physically qualified for active duty. The Veteran did not timely appeal this decision. The Veteran’s claim was further denied in September 1997 and October 2007 rating decisions on the basis that the Veteran did not submit new and material evidence. The October 2007 rating decision was not appealed, nor was new and material evidence submitted in a timely matter. Therefore, the October 2007 rating decision became final. Since the October 2007 rating decision, the Veteran has submitted medical evidence relating to his left knee disability. This evidence includes an October 2018 statement from Dr. K., the Veteran’s primary care physician. As the evidence was not before the AOJ in October 2007, it is by definition new. Dr. K.’s statement addresses the issue of aggravation of the left knee disability, and also addresses the issue of whether there is a link, or nexus, between the Veteran’s time on active duty in February 1991 and his left knee disability. The Board finds that this evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the Veteran’s claim. Therefore, the evidence regarding the Veteran’s left knee disability submitted to VA since the October 2007 rating decision is both new and material. The Veteran’s claim for entitlement to service connection for a left knee disability, to include ACL sprain and osteoarthritis, is reopened. Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for left knee disability, to include ACL sprain and osteoarthritis The Veteran’s medical record shows that the Veteran’s left anterior cruciate ligament (ACL) has been surgically repaired multiple times. Additionally, the Veteran has been diagnosed with osteoarthritis in his left knee. Therefore, the Board finds that the first Shedden element is satisfied. The Veteran contends that prior to being recalled to active duty in February 1991, he was in a car accident and injured his left knee. As a result of the accident his left ACL had to be surgically repaired. These assertions are corroborated by contemporary medical records. The Veteran was then recalled to active duty while still recuperating from his ACL surgery. According to the Veteran, he was physically unfit for duty yet was told he had to report to Camp Pendleton. Once there, he re-injured his left knee during physical training (PT). The Veteran’s service treatment records (STRs) show that he presented to sick call with a left knee pain in February 1991. The assessment given was that the Veteran would require another “ACL repair.” After the injury, the Veteran was found to be unfit for active duty and medically discharged. The Board finds that there is competent and credible evidence regarding complaints of left knee pain, and therefore the second Shedden element is satisfied. What remains to be determined is whether there is a link, or nexus, between the Veteran’s current left knee disability and his in-service injury. As discussed below, the Board finds that the Veteran’s left knee disability was aggravated beyond its natural progression by his in-service injury. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). In February 1991, prior to reporting for active duty, the Veteran’s private physician, Dr. C., noted that it is his opinion that the Veteran’s “left knee precludes his activity from any type of walking, standing, climbing, kneeling, bending, or other such activities. He is likely to have more problems with [his left knee] if he is returned to active duty.” Despite providing the USMC with this medical note, the Veteran was ordered to present himself for active duty, and a determination about his physical capabilities would be made at a later time. After re-injuring his left knee while on active duty, the Veteran had had six more surgeries on his left knee. Dr. K. examined the Veteran when he returned from active duty and found that his left knee was swollen and painful. According to Dr. K., the fact that the Veteran returned to active duty before his left knee could fully recover “exacerbated his condition” and is the reason why the Veteran’s left knee disability worsened to the point that five more surgeries were necessary. There is no lay or medical evidence to contradict the statements provided by the Veteran and Dr. K.’s conclusion. Considering all of the positive evidence, to the effect that the Veteran’s current left-knee disability, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury. With all competent and credible evidence weighing in the Veteran’s favor, the Board finds that service connection on the basis of aggravation for a left knee disability, to include an ACL sprain and osteoarthritis, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §§ 1153, 5107 (b); 38 C.F.R. §§ 3.102, 3.306. 2. Entitlement to service connection for right knee disability, to include ACL sprain and osteoarthritis, secondary to left knee disability Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran’s right knee has required surgery to repair the ACL, and he has been diagnosed with osteoarthritis in his right knee. The Board finds that the first element to establish secondary service connection is fulfilled. The Veteran contends that his right knee disability is due to his left knee disability. As the Veteran’s left knee disability has been found to be service-connected, the Board finds that the second element to establish secondary service connection has been met. According to the Veteran, his right knee ACL damage and his osteoarthritis is due to him having to favor his left knee because of his left-knee injuries. According to the Veteran, he tried to perform his duties but had to rely heavily on his right leg to take the burden from the recently-injured left knee. While the Veteran is competent to provide evidence regarding the symptoms he is experiencing, the etiology of his ACL damage and osteoarthritis is a complex medical determination that cannot be made by a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In his October 2018 statement, Dr. K. noted that upon his return from active duty in February 1991 the Veteran’s right knee was swollen and painful. Dr. K. opined that the Veteran “put stress on his right leg and knee trying to fulfill his obligation to the military.” Continuing, Dr. K. found that the Veteran’s February 1991 injury to his left knee on active duty “resulted in the fact that [the Veteran] needed surgery on the right knee as well.” Dr. K. concludes his statement by saying that by returning to active duty before his left knee was fully healed, the Veteran “exacerbated his condition which resulted in several more surgeries, 5 on the left knee and 1 on the right knee.” With all evidence weighing in favor of the Veteran, the Board finds that the Veteran’s right knee disability is proximately due to, or caused by, his service-connected left knee disability. Service connection for a right knee disability, to include ACL sprain and osteoarthritis, secondary to a left knee disability, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for psychiatric disorder, to include depressive disorder not otherwise specified and alcohol use disorder 4. Entitlement to service connection for posttraumatic stress disorder The Veteran contends that he has bilateral hearing loss, and that it is related to his time in the Marine Corps as a truck driver. The Board notes that the Veteran’s STRs include complaints of hearing loss. An October 1986 entry in the STRs describes a “severe to profound hearing loss, all freq[uencies].” The Veteran has submitted an August 2016 statement from Dr. B., wherein he opines that “it is reasonable to believe” that the Veteran’s noise exposure in the Marines “is the etiology for his auditory difficulties.” However, Dr. B.’s language of does not rise to the level necessary for the Board to adjudicate the matter. Further, there are no reported audiometry findings. As such, the Board cannot rely on Dr. B.’s opinion to make a determination on the issue of whether or not the Veteran has hearing loss as defined by VA, and if so, whether that hearing loss is related to his military service. In June 2015 the Veteran submitted a statement from Dr. K. regarding the Veteran’s contention that his headaches are a result of his military service. Per Dr. K., “a likely cause for the headaches would be the series of inoculations he received prior to deployment to Desert Storm in February of 1991.” As discussed above, the Veteran was not deployed to Southwest Asia as part of Desert Storm. He was, however, called up in preparation for deployment before he was medically discharged. Therefore, the Board finds that it is within the realm of possibility the Veteran was administered inoculations. Furthermore, Dr. K.’s statement regarding the cause-and-effect of the inoculations the Veteran allegedly underwent is conclusory. Dr. K. did not discuss what injections the Veteran was given and what the potential side effects were. Without a rationale behind his opinion, the Board cannot make a determination as to the etiology of the Veteran’s headaches. There is conflicting evidence regarding the etiology of the Veteran’s psychiatric conditions. VA examinations from 2014 and 2015 have found that the Veteran does not have PTSD, but the Veteran’s medical record shows he is being treated for PTSD. Furthermore, in December 2018 Dr. K. submitted a statement explaining that the Veteran’s PTSD, depression, and alcohol abuse syndrome is “most likely related” to his service in the Marines. However, Dr. K.’s statement was conclusory and did not give a full rationale as to how he came to those opinions. A more thorough mental health examination is necessary to fully explain the etiology and severity of the Veteran’s psychiatric conditions. While the Board regrets the additional delay, it is for these reasons that the Board is remanding these matters for further development. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Provide the Veteran a VA examination, to be conducted by a qualified examiner, to address the etiology of his claimed bilateral hearing loss. The examiner shall review the record, including a copy of this remand, prior to providing the opinion. The examiner will provide an opinion on the following: (a.) Whether the Veteran has hearing loss in accordance with 38 C.F.R. § 3.385, and if so, (b.) Whether it is as least as likely as not (50 percent chance or greater) that any diagnosed hearing loss had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran’s separation from active service. The examiner should address the Veteran’s assertions of diminished hearing since service, the Veteran’s in-service military occupational specialty and the corresponding level of noise exposure, and the in-service complains of hearing loss, especially the October 1986 STR entry that the Veteran experienced “severe to profound hearing loss, all freq[uencies].” 2. Provide the Veteran a VA examination, to be conducted by a qualified examiner, to address the etiology of his headaches. The examiner shall review the record, including a copy of this order, prior to providing the opinion. The examiner will provide an opinion on the following: (a.) Whether it is as least as likely as not (a 50 percent chance or greater) that the Veteran’s headaches had their onset in active service or are otherwise caused by active service. The examiner should address the Veteran’s assertions of his headaches being caused by his numerous inoculations in preparation for deployment to Southwest Asia. 3. Provide the Veteran a VA examination, to be carried out by a qualified mental health clinician, to address the etiology and severity of the Veteran’s psychiatric conditions, to include his depressive disorder NOS, alcohol abuse disorder, and his PTSD. The examiner shall provide an opinion on the following: (a.) Determine whether the Veteran has posttraumatic stress disorder, as defined by the DSM-5. If so, whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s PTSD is caused by, aggravated by, or otherwise related to his service in the Marines. The examiner shall address the Veteran’s contentions that the traumatic experience he suffered was verbal and physical abuse in basic training. (b.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s psychiatric disorder, to include depressive disorder not-otherwise-specific and alcohol abuse disorder, is caused by, aggravated by, or otherwise related to his service in the Marines. 4. Complete rationales for all opinions must be given. If the examiner[s] cannot render an opinion without resorting to mere speculation, he or she must explain why that is the case. The examiner shall state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.