Citation Nr: 20026537 Decision Date: 04/17/20 Archive Date: 04/17/20 DOCKET NO. 18-08 487 DATE: April 17, 2020 ORDER The claim of entitlement to service connection for a lumbar spine disability is reopened. The claim of entitlement to service connection for a left knee disability is reopened. New and material evidence not having been received, the Veteran’s petition to reopen a claim of service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In a July 2013 rating decision, the RO denied service connection for a lumbar spine disability and a left knee disability because the evidence did not show incurrence or aggravation of low back and left knee disabilities during active service; the Veteran did not appeal this rating decision or submit new and material evidence within one year of the decision. 2. In a July 2013 rating decision, the RO denied service connection for bilateral hearing loss because the record did not contain evidence of a current bilateral hearing disability for VA purposes; the Veteran did not appeal the rating decision or submit new and material evidence within one year of the decision. 3. Additional evidence received since the July 2013 rating decision is new and relates to an unestablished fact necessary to substantiate the merits of the claims for service connection for a lumbar spine disability and a left knee disability. 4. New and material evidence has not been received since the July 2013 rating decision denying service connection for bilateral hearing loss that relates to an unestablished fact necessary to substantiate the merits of that claim or raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The July 2013 rating decision, denying service connection for a lumbar spine disability, a left knee disability, and bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been received sufficient to reopen the claim of service connection for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for reopening a claim of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from January 2002 to January 2005, from May 2005 to December 2005, and from April 2009 to May 2010, with additional service in the Army National Guard and periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his January 2018 substantive appeal, the Veteran requested a Board hearing via videoconference. A hearing was scheduled for March 3, 2020; however, the Veteran failed to report to the hearing without a showing of good cause, and as such, his hearing request is considered to have been withdrawn. 1. Reopening the Claims of Service Connection for a Lumbar Spine Disability and a Left Knee Disability Generally, to establish service connection, a Veteran must show: (1) a present disability; (2) an 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 Veteran first filed a claim of service connection for a low back disability and left knee disability in October 2011. In a July 2013 rating decision, the RO denied service connection for these claims because they were not found to have been incurred or aggravated during active service. The Veteran was apprised of the decision in an August 2013 notification letter. He did not appeal or submit new and material evidence within one year of the rating decision. Therefore, the July 2013 rating decision is final. In April 2016, the Veteran filed a request to reopen his claim of service connection for a low back disability and a left knee disability. In a September 2016 rating decision, the RO declined to reopen the claims finding that the evidence submitted was not new and material. The September 2016 rating decision is the subject of this appeal. In order to reopen a claim which has been denied by a final decision, new and material evidence must be presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board must make its own determination as to whether new and material evidence has been received to reopen the claim regardless of action taken by RO). New evidence means evidence not previously submitted to agency decision makers. 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. New and material evidence cannot be cumulative or 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. See 38 C.F.R. § 3.156 (a). Finally, in determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence that has been received since the July 2013 rating decision includes additional service treatment records, additional VA treatment records, and private medical records pertaining to the low back and left knee. The Board finds that this evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims of service connection for the lumbar spine and left knee. Specifically, the new evidence supports the Veteran’s contentions that during his active service in Afghanistan, he suffered injuries to his low back and left knee which caused his present disabilities. As such, the claims of service connection for a lumbar spine disability and a left knee disability are reopened. 2. Reopening the Claim of Service Connection for Bilateral Hearing Loss At the time of the July 2013 rating decision, the evidence of record contained incomplete service treatment records, VA treatment records, and a July 2013 VA hearing loss and tinnitus examination. The examination report showed that the Veteran’s hearing was noted as normal in the right and left ears; thus, the examiner did not diagnose the Veteran as having hearing loss in either ear. Since the July 2013 rating decision, the evidence added to the record includes additional service treatment records and updated VA treatment reports. However, this evidence does not relate to establishing whether the Veteran has a current disability of bilateral hearing loss. Furthermore, the Veteran has not asserted that his hearing difficulties have increased in severity nor does the medical evidence of record document that his hearing acuity may have worsened to such an extent as to qualify as a "disability" since the July 2013 rating decision. See 38 C.F.R. § 3.385. Accordingly, new and material evidence has not been received, and the claim of service connection for bilateral hearing loss is not reopened. REASONS FOR REMAND The Board finds that additional development is necessary prior to the adjudication of the claims for entitlement to service connection of a lumbar spine disability and a left knee disability, as well as entitlement to an increased rating for PTSD in excess of 30 percent. The Veteran contends that he is entitled to service connection for a lumbar spine disability and a left knee disability because these disabilities were incurred during his active service. The Veteran was afforded VA spine and knee examinations in July 2013. With respect to the lumbar spine, the examiner diagnosed the Veteran as having back strain. The Veteran reported that prior to enlistment, he injured his low back following a car accident but that the low back pain had resolved shortly thereafter. He then explained that he strained his low back during his deployment to Afghanistan as a result of wearing heavy body armor, carrying equipment, and lifting patients as a medic. He further described an incident at Bagram Air Base in which his back seized up after a ten mile run. The examiner opined that it was less likely than not that the Veteran’s low back strain was incurred in or caused by an in-service injury, event, or illness. Based on her review of the record, the examiner determined that the Veteran’s lumbar spine disability had pre-existed service, the Veteran’s in-service back complaints were non-limiting, and that there was no evidence of a back injury noted in the service treatment records. The Board notes that additional, pertinent service treatment records have been added to the record following the July 2013 VA spine examination. The service records show that in July 2009, the Veteran was treated for complaints of low to mid-back pain after an eight-mile run the previous day; the Veteran had been diagnosed as having lumbago that was likely caused by overexertion. Notwithstanding the necessity for a review of these records by a VA examiner, the Board finds that the July 2013 VA examiner’s medical opinion is inadequate for a number of reasons. First, she did not consider the Veteran’s lay statements including the resolution of his low back pain prior to enlistment and the causal relationship between his duties as a medic and his low back pain. She also failed to discuss the significance of the Veteran’s in-service diagnosis of lumbago. Moreover, the opinion is inadequate in that the examiner did not provide the correct standard for aggravation in formulating her opinion. With regard to the left knee, the examiner diagnosed the Veteran as having degenerative joint disease, chronic patellar tendonitis, and a history of Osgood- Schlatter Disease. The examiner opined that the diagnoses are less likely than not incurred in or caused by an in-service injury, event, or illness. She stated that the Veteran’s Osgood-Schlatter disease pre-existed active service but was not aggravated during service. She then stated that during active service, he developed Jumper’s knee or chronic patellar tendonitis, the symptoms of which he continues to have. She determined that the degenerative joint disease is not related to service because there was no in-service trauma or other service event that could lead to traumatic arthritis. Again, the Board finds that the examiner’s opinion is inadequate in that she did not consider the Veteran’s lay statements regarding incurrence of left knee pain during service and she did not provide the correct legal standard for aggravation. Notably, her opinion is internally inconsistent insofar as she addressed numerous instances of in-service complaints, treatment and diagnoses related to the left knee, indicated in her supporting rationale that chronic left knee patellar tendonitis developed during active service, yet concluded that the Veteran’s current left knee disabilities, to include chronic patellar tendonitis, were not incurred in service. Based on the foregoing, the Board finds that additional VA examinations and medical opinions are required prior to adjudication of the claims for service connection of the lumbar spine and left knee. Regarding the Veteran’s claim for a higher rating for PTSD, the Board finds that remand is necessary to obtain an updated VA examination and VA treatment reports. The Veteran was last afforded a VA examination in August 2016 in connection with his claim. Subsequently, VA treatment reports show that in early 2017, the Veteran experienced a temporary exacerbation of his PTSD symptoms, including nightmares, fatigue, and impaired functioning at school and work. Furthermore, VA treatment reports indicate that the Veteran was regularly seen by a VA mental health counsellor; however, the most recent VA treatment notes of record are dated from April 2017. Accordingly, the Board finds that a remand is necessary in order to obtain another VA examination that adequately assesses the current severity of the Veteran’s PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997) (requiring a new examination where the evidence reflects that a disability has increased in severity since the last VA examination). These matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and private treatment records and associate the records with the claims file. 2. Ensure that the Veteran is scheduled for VA examinations to determine the nature and etiology of his lumbar spine and left knee disabilities. The examinations must be conducted by an examiner who has not previously examined the Veteran. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should also consider the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from active service. The examiner should consider any other pertinent evidence of record, as appropriate. The examiner must provide the following: (a) Identify and assess all diagnosable lumbar spine disabilities, to include lumbar strain. (b) Provide a medical opinion as to whether the Veteran’s lumbar spine disability clearly and unmistakably (undebatable) pre-existed the Veteran's active service. If so, then the examiner must opine whether the Veteran’s lumbar spine disability did not undergo a worsening beyond its natural progression during his active service. The examiner is cautioned that a statement framed in terms of “at least as likely as not” will not satisfy the legal standard on which this specific directive is based. (c) If the examiner finds that the lumbar spine disability did not clearly and unmistakably pre-exist service, then provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability was incurred in or otherwise related to his active service? (d) Identify and assess all diagnosable left knee disabilities, to include a history of Osgood Schlatter Disease of the left knee, left patellar tendonitis, and left knee degenerative joint disease. (e) Provide a medical opinion as to whether the Veteran’s left knee disability clearly and unmistakably (undebatable) pre-existed the Veteran's active service. If so, then the examiner must opine whether the Veteran’s left knee disability did not undergo a worsening beyond its natural progression during his active service. The examiner is cautioned that a statement framed in terms of “at least as likely as not” will not satisfy the legal standard on which this specific directive is based. (f) If the examiner finds that the left knee disability did not clearly and unmistakably pre-exist service, then provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability was incurred in, aggravated by, or otherwise related to his active service? 2. Ensure that the Veteran is scheduled for a VA examination to determine the current severity and manifestations of his service-connected posttraumatic stress disorder (PTSD). The examiner must review the claims file in conjunction with the examination. The examiner should indicate all symptomatology associated with the Veteran's psychiatric disability and indicate the impact of such on his social and occupational functioning. All findings should be reported in detail and all opinions must be accompanied by a clear rationale.   3. Following any additional indicated development, the RO should readjudicate the Veteran's claims for entitlement to service connection for a lumbar spine disability, service connection for a left knee disability, and an increased evaluation for his service-connected PTSD. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.