Citation Nr: 20005115 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-25 830 DATE: January 22, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is reopened. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran was denied entitlement to service connection for a right knee disability, a left knee disability, and a lumber spine disability in a July 2006 rating decision. The Veteran timely disagreed with the decision and a statement of the case (SOC) was issued. The Veteran did not perfect the appeal, and no new and material evidence was received within sixty days after the SOC was issued or within one year after the July 2006 rating decision. 2. Evidence received since the issuance of the July 2006 rating decision is not cumulative or redundant of the evidence previously of record, relates to unestablished facts necessary to substantiate the merits of the claims, and raises the reasonable possibility of substantiating the claims of entitlement to service connection for a right knee disability, a left knee disability, and a lumbar spine disability. 3. The preponderance of the evidence is against finding that a right knee disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The July 2006 rating decision that denied the claims of entitlement to service connection for a right knee disability, a left knee disability, and a lumbar spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for a right knee disability, a left knee disability, and a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1992 to June 1996. In September 2019, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing regarding the issues enumerated on the title page of this decision. A copy of the hearing transcript is of record. The Board notes that the Veteran recently perfected an appeal for the issue of entitlement to service connection for posttraumatic stress disorder. On his VA Form 9, he requested a videoconference hearing on this specific issue that has not yet been held. Thus, the Board will not adjudicate this issue until the requested hearing has been conducted. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). 1. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. In July 2006, the regional office denied the Veteran’s claim of entitlement to service connection for a right knee disability on the basis that there was no permanent residual or chronic disability subject to service connection shown in the Veteran’s service medical records or in evidence after service. At the time of the denial, the pertinent evidence of record included the Veteran’s application for compensation and his service treatment records. The Veteran timely filed a notice of disagreement in August 2006, and the regional office issued an SOC. However, the Veteran failed to perfect an appeal within the requisite sixty days following the issuance of the statement of the case. Thus, the July 2006 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the July 2006 rating decision includes a March 2016 VA medical opinion and addendum which address whether the Veteran’s currently diagnosed right knee disability is at least as likely as not incurred in service or caused by the in-service diagnoses of chondromalacia and patellofemoral syndrome. This evidence is new as it was not of record at the time of the initial rating decision and is not cumulative or redundant of the available evidence of record at that time. It is material in that this competent medical opinion directly relates to an unestablished fact necessary to substantiate the claim, a nexus between the Veteran’s current right knee disability and service and/or his in-service right knee diagnoses. Therefore, the claim of entitlement to service connection for a right knee disability is reopened. 2. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened. In July 2006, the regional office denied the Veteran’s claim of entitlement to service connection for a left knee disability on the basis that there was no evidence of a current left knee disability and no evidence that the Veteran was treated for a left knee disability in service. At the time of the denial, the pertinent evidence of record included the Veteran’s application for compensation and his service treatment records. The Veteran timely filed a notice of disagreement in August 2006, and the regional office issued an SOC. However, the Veteran failed to perfect an appeal within the requisite sixty days following the issuance of the statement of the case. Thus, the July 2006 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the July 2006 rating decision includes VA and private treatment records which reflect the Veteran’s current complaints of knee pain. In Saunders v. Wilkie, the Federal Circuit held that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and that pain alone may be a functional impairment. 886 F.3d 1356, 1368 (Fed. Cir. 2018). This evidence is new as it was not of record at the time of the initial rating decision and is not cumulative or redundant of the available evidence of record at that time. It is material in that this competent evidence documenting post-service left knee pain directly relates to an unestablished fact necessary to substantiate the claim, the presence of a current disability. Therefore, the claim of entitlement to service connection for a left knee disability is reopened. 3. New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is reopened. In July 2006, the regional office denied the Veteran’s claim of entitlement to service connection for a lumbar spine disability on the basis that there was no evidence of a current lumbar spine disability and no evidence that the Veteran was treated for a lumbar spine disability in service. At the time of the denial, the pertinent evidence of record included the Veteran’s application for compensation and his service treatment records. The Veteran timely filed a notice of disagreement in August 2006, and the regional office issued an SOC. However, the Veteran failed to perfect an appeal within the requisite sixty days following the issuance of the statement of the case. Thus, the July 2006 rating decision became final. 38 C.F.R. § 20.1103. Evidence received since the July 2006 rating decision includes VA and private treatment records which reflect the Veteran’s diagnoses of mild bulging discs at L3-4 (shown in a June 2008 treatment record) and mild degenerative changes (shown in a September 2015 treatment record). This evidence is new as it was not of record at the time of the initial rating decision and is not cumulative or redundant of the available evidence of record at that time. It is material in that this competent evidence documenting two lumbar spine diagnoses directly relates to an unestablished fact necessary to substantiate the claim, the presence of a current disability. Therefore, the claim of entitlement to service connection for a lumbar spine disability is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for a right knee disability is denied. The Veteran maintains that his right knee disability is the direct result of his active duty service. As an initial matter, there is evidence of a current disability. The Veteran has most recently been diagnosed with degenerative joint disease (arthritis) of the right knee. There is also evidence of an in-service event, disease, or injury, as the Veteran’s service treatment records reflect diagnoses and treatment for mild patellofemoral syndrome (PFS) and chondromalacia. At issue in this case is whether there is a relationship been the Veteran’s current right knee disability and the in-service diagnoses. A VA medical opinion was rendered in March 2016. The examiner endorsed a full review of the Veteran’s claims file. The Board notes that the original opinion referred to the Veteran’s left knee instead of his right knee. However, in an addendum completed the very next day, the examiner corrected the mistake, stating that all references to the left knee in the prior opinion should be for the right knee and were made in error. Thus, the Board has referred to the correct knee in its summarization of the medical opinion that follows. The examiner opined that the claimed knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that there was no medical evidence that the Veteran’s current right knee disability was related to his service. The Veteran was treated conservatively for his right knee with a diagnosis of PFS. He was noted to have had X-rays of his knee taken in November 1995 which were recorded as normal with no chondromalacia reported. His lower extremities were assessed as normal at separation and he denied any knee problems at that time. The examiner noted that the Veteran had been seen by VA for multiple visits since separation, and no chronic knee disability was seen until recently. The Veteran had a reported history of being able to play racquetball and use the P90X system for workouts with no VA knee complaints noted until recently. The examiner further noted that the Veteran was seen by a chiropractor in 2006 with knee complaints noted at that time. The examiner concluded that the Veteran’s current degenerative changes of the right knee were most likely due to the normal aging process as well as obesity. To further bolster this opinion, the examiner cited corroborative medical research. The Board finds the March 2016 medical opinion the most probative evidence regarding the etiology of the Veteran’s right knee disability. Following a review of the Veteran’s claims file, the VA examiner provided an extensive and detailed discussion of the case with conclusions based on a review of the Veteran’s complete history, replete with references to supporting medical literature. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This examiner reviewed the claims file and provided an opinion that is sufficiently clear and has a well-reasoned rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999). No alternative medical opinion is of record. The only evidence in support of the Veteran’s contentions is his own lay assertions. Lay evidence may be competent to establish medical etiology or nexus. However, given that the Veteran has not demonstrated that he has specialized medical training or expertise, the Board must find that he is not competent to provide a medical opinion as to the etiology of his right knee disability, diagnosed as arthritis of the right knee. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his lay assertions hold little probative value. Arthritis is a disease that would be entitled to presumptive service connection had it manifested to a compensable degree within one year of separation from service. However, the Veteran was not diagnosed with right knee arthritis until January 2008, several years after separation from service. As a result, presumptive service connection is not warranted as it is not shown that right knee arthritis manifested to a compensable degree within one year following separation from service. Therefore, the Board finds that the Veteran’s right knee disability is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for a right knee disability is not warranted. The preponderance of the evidence is against the claim of entitlement to service connection for a right knee disability and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is remanded. The Veteran maintains that he has a left knee disability and a lumbar spine disability that is related to his active military service. Specifically, he maintains that his current left knee pain and lumbar spine disability had their onset during service while spending several hours on a submarine, working on his hands and knees, climbing in and out of the superstructure of the ship, climbing in and out of lockers, and working the sails. His own statements and those of his leading petty officer also noted that much of the Veteran’s work was performed on uneven steel decks and braces, and slips and falls were frequent. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation 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, (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 the Secretary to make a decision on the claim. Here, VA treatment records reflect competent evidence of a left knee disability as the Veteran has consistently complained of left knee pain. They also reflect that the Veteran has been variously diagnosed with mild bulging discs at L3-4 and mild degenerative changes of the lumbar spine. Further, the Board finds that the Veteran’s statements regarding his duties during active service are credible as they are consistent with the circumstances of his service. Thus, there is evidence of an in-service event, injury or disease. There is an indication of relationships between the Veteran’s current left knee pain and lumbar spine disability and duties he performed during service, as the Veteran maintains that the knee pain and lumbar spine disability began during the completion of those duties. Finally, the Board finds that there is insufficient competent medical evidence on file to make a decision. While the Veteran believes that there is a relationship between his claimed knee and lumbar disabilities and service and he is deemed competent to describe the observable symptoms of his disabilities, he does not have the requisite specialized knowledge to ascertain its etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Thus, a remand for appropriate VA examinations and medical opinions is warranted. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran maintains entitlement to service connection for sleep apnea. He avers that his sleep disability had its onset during service. The Veteran has a current diagnosis of obstructive sleep apnea. He has submitted copies of journal entries that were written during his active duty service indicating that he was getting very little sleep. He testified that there were too many shipmen to all fit in the sleeping berth, so he slept between missile tubes and in supply closets. These sleeping arrangements caused continuously interrupted, non-restful sleep. The Board finds these journal entries and the Veteran’s testimony credible. Thus, there is evidence of an in-service event, injury or disease. There is an indication of a relationship between the Veteran’s current obstructive sleep apnea and his lack of sleep during service, as the Veteran avers that he had no problems with sleep or apnea prior to this experience. Finally, the Board finds that there is insufficient competent medical evidence on file to make a decision. While the Veteran believes that there is a relationship between his sleep apnea and service and he is deemed competent to describe the observable symptoms of his sleep apnea, he does not have the requisite specialized knowledge to ascertain its etiology. Thus, a remand for an appropriate VA examination and medical opinion is warranted. 4. Entitlement to service connection for tinnitus is remanded. The Veteran maintains entitlement to service connection for tinnitus. He testified that he used pneumatic tools (grinders, sanders) as part of his deck division duties during service. While he did use earplugs, he stated that he was still in a confined area utilizing these tools constantly for several hours a day over the course of several weeks. The Veteran also stated that he trained on firearms. He avers that the described noise exposure caused tinnitus. VA treatment records confirm a diagnosis of tinnitus and use of masking devices. Further, the Board finds that the Veteran’s statements regarding his duties and subsequent exposure to noise during active service are credible as they are consistent with the circumstances of his service. Thus, there is evidence of an in-service event, injury or disease. There is an indication of a relationship between the Veteran’s claimed tinnitus and service as the Veteran avers that his tinnitus began after noise exposure in service. Finally, the Board finds that there is insufficient competent medical evidence on file to make a decision as no examination has yet been arranged in conjunction with this claim to determine the likely cause of his tinnitus. Therefore, a remand for an appropriate VA examination and medical opinion is warranted. The matters are REMANDED for the following action: 1. Obtain all updated VA treatment records and adequately identified private treatment records that the Veteran has received for a left knee disability, a lumbar spine disability, sleep apnea, and tinnitus. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including working on his hands and knees, climbing in and out of the superstructure of the ship, climbing in and out of lockers, and working the sails. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including working on his hands and knees, climbing in and out of the superstructure of the ship, climbing in and out of lockers, and working the sails. If, and only if, the Veteran’s left knee disability is determined to be service-connected, the examiner is asked to address whether it is at least as likely as not that the Veteran’s lumbar spine disability is (1) proximately due to the service-connected left knee disability, or (2) aggravated beyond its natural progression by the service-connected left knee disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s lack of sleep during service (1-3 hours per night). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of tinnitus. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to the noise of pneumatic tools and firearms training. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.