Citation Nr: 20028899 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 17-63 123 DATE: April 24, 2020 ORDER New and material evidence having been received, the claim for entitlement to service connection for left knee disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for right knee disability, to include as due to a left knee disability is reopened. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability as due to a left knee disability is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. New and material evidence having been received, the claim for entitlement to service connection for left knee disability is reopened. 2. New and material evidence having been received, the claim for entitlement to service connection for right knee disability, to include as due to a left knee disability is reopened. 3. Resolving reasonable doubt in the Veteran's favor, his left knee disability is at least as likely as not etiologically related to active duty service. 4. Resolving reasonable doubt in the Veteran's favor, his right knee condition is at least as likely as not related to his service-connected left knee condition. 5. The Veteran is not shown to have a hearing disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The December 1976 and September 1985 rating decisions denying the Veteran’s claims for entitlement to service connection are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. The criteria for new and material evidence having been met, the claim for entitlement to service connection for a left knee disability is reopened. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2019). 3. The criteria for new and material evidence having been met, the claim for entitlement to service connection for right knee disability, to include as due to a left knee disability is reopened. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2019). 4. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154 (2012); 38 C.F.R. §§ 3.303, 3.385 (2019). 5. The criteria for entitlement to service connection for a left knee injury have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 6. The criteria for entitlement to service connection for a right knee injury as due to a left knee injury have been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during the Vietnam era and Peacetime on active duty from October 1972 to October 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing has been associated with the Veteran’s electronic claims file. New and Material Evidence A claim of entitlement to service connection for a left knee disability and a right knee disability was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 C.F.R. § 3.156(a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for left knee injury. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for right knee injury, to include as due to a left knee disability Here, the RO previously denied the Veteran’s claim for service connection for a bilateral knee disability in December 1976 and September 1985 rating decisions. The Veteran did not perfect an appeal to the Board of these decisions. As such, these decisions became final. The Veteran petitioned to reopen his claim for a left knee disability in March 2003. In May 2003, the Appellant's claim was administratively denied for lack of new and material evidence (5/19/03 Notification Letter). This claim is considered abandoned. 38 C.F.R. § 3.158(a) (2018). The Board notes that after the September 1985 rating decision, no evidence pertinent to the Veteran’s claim for a bilateral knee disability or a left knee disability was associated with the record until November 2016. Since the September 1985 rating decision, the Veteran has submitted new evidence in the form of buddy statements, letters from the Veteran’s private medical providers, private treatment records, and a private medical opinion from Dr. N.C. A Board hearing transcript and a VA examination and addendum opinion have also been associated with the record. In October 2017 buddy statements, G.S., M.G., and J.R. recounted witnessing the Veteran fall and injure his knees on several occasions while playing on a competitive Navy basketball team in 1973 and 1974. They recounted witnessing the Veteran being carried off the court and sitting out the remainder of the games. They recounted that the Veteran limped from pain after games on several occasions and that he was treated with cold spray and ice packs applied to his knees. M.G. stated that the Veteran missed games due to his injuries. J.R. stated that he spoke with the Veteran after 1974 and that the Veteran told him that he could barely walk and had just had surgery on his legs. In letters from the Veteran’s private doctors, Dr. T.A. and Dr. D.L., the doctors confirm that the Veteran has been diagnosed with and received treatment for osteoarthritis of the bilateral knees. The Veteran’s private treatment records include diagnostic testing showing degenerative changes of the bilateral knees. The Veteran was afforded a VA examination in May 2018. The VA examiner opined that the Veteran’s right knee osteoarthritis is not related to service, as the Veteran’s STRs document only an injury to his left knee. In a November 2018 addendum opinion, the examiner reviewed the Veteran’s statements and other lay statements and opined that there is a lack of objective evidence to support that the Veteran’s left knee osteoarthritis had its onset during service or was caused by basketball-related left knee pain or treatment for local inflammation in December 1973. The Veteran was afforded a Board hearing in February 2020. The Veteran testified that he injured his knees while playing basketball in service and has experienced continuous pain and degeneration in his knees since his injuries. The Veteran testified that his knees worsened as he alternately favored one or the other. The Veteran testified that he has undergone surgery for meniscus tear and has had a right knee replacement. The Veteran’s spouse testified that she watched the Veteran play basketball on active duty, that she saw him fall and be carried off the court, and that he could not play for the rest of the game. His spouse testified that he walked with a limp after his injuries and continued to do so after discharge, and that he eventually had surgery. A March 2020 private medical opinion from Dr. N.C. found it more likely than not that the Veteran’s osteoarthritis of the left and right knees originated in service. Dr. N.C. further opined that because the Veteran experienced pain and pressure in his left knee he began favoring the right knee which caused the right knee to deteriorate and eventually require a complete right knee replacement in 1985. Upon review of the Veteran’s STRs and post-service medical records, Dr. N.C. found that the Veteran’s knee condition originated from an in-service fall in 1973 and that his symptoms have continued to the present. Dr. N.C. noted that the Veteran has been treated for pain from osteoarthritis for 40 years, to include injections in both knees. Dr. N.C. explained that in its first stage, osteoarthritis symptoms are mild, and that by the fourth stage a person may need surgery or knee replacement. Dr. N.C. further explained that osteoarthritis of the knee affects the bones, cartilage, and synovium of the knee joint and can cause pain and stiffness. Dr. N.C. found that the etiology of the Veteran’s condition followed this progression, culminating in three knee surgeries. The buddy statements, letters from the Veteran’s private medical providers, private treatment records, private medical opinion, Board hearing testimony, VA examination, and VA addendum opinion were not previously considered by agency decision makers and address one or more of the in-service incident, current diagnosis, and nexus elements of the Veteran’s service connection claim. Therefore, the evidence is considered new and material, and the claims of service connection for a left knee disability and right knee disability are reopened. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, to include arthritis and “organic diseases of the nervous system” such as bilateral hearing loss, if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Secondary service connection is warranted for any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233 (2019). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition where the condition is simple, (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 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). 3. Entitlement to service connection for a left knee disability. The Veteran asserts that he has a left knee condition that began in service. As an initial matter, the Board notes that with regard to the first element of service connection for a left knee condition, there is competent evidence establishing that the Veteran has been diagnosed with a knee condition for his left knee during the claim period. An August 1985 x-ray shows mild degenerative changes of the bilateral knees, with the left greater than the right. A December 2002 MRI shows degenerative changes of the left knee. An October 2014 x-ray reveals mild tricompartmental osteoarthritis of the bilateral knees. Statements from the Veteran’s private doctors, Dr. T.A. and Dr. D.L., indicate a diagnosis of osteoarthritis of the knees. Accordingly, the first criterion of a current disability for a left knee condition has been met. With regard to the second element, the Veteran's STRs indicate that he sought treatment for a left knee injury in December 1973. Lay statements from the Veteran, three fellow service members, and the Veteran’s spouse indicate that the Veteran fell and injured his knees multiple times while playing competitive basketball during service and received treatment consisting of a cold spray and icing his knees. The lay statements also indicate that the Veteran was unable to continue playing, missed games, and walked with a limp after games. The Veteran, his fellow service members, and his spouse are competent to report on what they observe or sense, such as witnessing or experiencing a fall and witnessing the Veteran limping after a fall. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds these statements credible, as there is no evidence in the record contradicting these accounts. In addition, the Veteran’s STRs indicate that he sought treatment on at least one occasion for a basketball-related left knee injury. As such, the Board finds that the lay statements concerning an in-service left knee injury are competent and credible lay evidence. The Board therefore resolves all doubt in favor of the Veteran to find that the in-service element is met. The evidence also establishes a link between the Veteran's left knee condition and his military service. Specifically, the Veteran submitted a positive nexus opinion from a private doctor in March 2020. The March 2020 private examiner opined that the etiology of the Veteran’s left knee condition since an in-service injury is consistent with the general clinical progression of osteoarthritis. The Board finds the March 2020 private opinion to be highly probative, as it is based on a review of the Veteran’s STRs and post-service medical records, considered lay statements submitted by the Veteran, and contains an adequate rationale. Although the Veteran's record also includes a negative nexus opinion from a VA examiner in November 2018, the Board finds the private medical opinion to be more probative than the VA examiner's opinion. This is because the November 2018 VA examiner based his negative opinion on there being no objective evidence of an actual injury to the left knee while in service. The VA examiner also mentioned only one episode of a knee complaint in service. As noted above, the Board finds that the multiple lay statements regarding several in-service left knee injuries, in conjunction with medical evidence of an in-service left knee injury, are competent and credible evidence of an in-service injury. As the VA examiner's negative nexus opinion is based on partially inaccurate facts, the Board finds the private medical opinion from March 2020 to be more probative in this case. As such, the Board finds that with resolving all reasonable doubt in the Veteran's favor, the Veteran's claim of entitlement to service connection for a left knee condition is warranted. 4. Entitlement to service connection for a right knee injury, to include as due to a left knee injury. As noted above, the Veteran has a current diagnosis of osteoarthritis of the bilateral knees. Thus, the Veteran has a current disability of his right knee. The Veteran has claimed that this condition is secondary to his left knee condition. Specifically, the Veteran asserts that his current right knee condition is the result of putting more pressure on his right knee following an in-service injury to his left knee. See April 2017 Notice of Disagreement. As noted above, the Board has granted entitlement to service connection for a left knee disability. Accordingly, the second criterion of a service-connected disability for secondary service connection has been met. The evidence also establishes a link between the Veteran's right knee condition and his service-connected left knee condition. Specifically, the Veteran submitted a positive nexus opinion from a private doctor in March 2020. The private doctor opined that the condition of the Veteran’s right knee deteriorated because he favored it after an injury to his left knee, eventually requiring a complete right knee replacement. As noted above, the Board finds the March 2020 private opinion to be highly probative. Although the Veteran's record also includes a negative nexus opinion from a VA examiner in May 2018, the Board finds the private medical opinion to be more probative than the VA examiner's opinion, as the VA examiner’s opinion considered only direct service connection for a right knee disability and did not address whether the Veteran’s right knee disability is caused or aggravated by his left knee disability. As such, the Board finds that with resolving all reasonable doubt in the Veteran’s favor, the Veteran’s claim of entitlement to service connection for a right knee condition, to include as due to a service-connected left knee condition, is warranted. 5. Entitlement to service connection for bilateral hearing loss Post-service development of an “organic disease of the nervous system” to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. An “organic disease of the nervous system”, to include bilateral hearing loss, is subject to presumptive service connection under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Before service connection may be granted for a hearing loss, that loss must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in January 2017. The audiometry results, in decibels, read: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 20 LEFT 10 5 5 15 20 The Veteran’s speech discrimination scores were 98 percent for the right ear and 96 percent in the left ear. The Veteran reported a history of military noise exposure while serving as an Electrical/Mechanical Equipment Repairman. The Veteran reported working with aircraft, serving on aircraft carriers, and working on the flight deck. The Veteran reported a history of post-military occupational noise exposure, as he worked as an aircraft mechanic after discharge from active duty. The examiner determined that the Veteran has normal hearing in both ears based on audiometric testing and that there is no pathology to render a diagnosis of hearing loss. The Veteran was afforded a Board hearing in February 2020. The Veteran testified that he was an aircraft mechanic in the military, and that he inspected planes and was exposed to noise. The Veteran testified that he has already been granted service connection for tinnitus and that a VA doctor told him that he has hearing loss which is characterized as not significant. The Veteran testified that he does not wear hearing aids but has to turn the television up loud. Under the standards established by 38 C.F.R. § 3.385, there is no indication of a current bilateral ear hearing loss “disability” in this case. The results of the January 2017 VA audiometric evaluation do not establish that a hearing disability is present. Upon audiometric evaluation, the Veteran had a decibel threshold in the left ear of 5, 5, 15, and 20, at 1000, 2000, 3000, and 4000 Hertz, respectively with speech recognition ability of 96 percent. In the right ear, he had a decibel threshold of 10, 10, 15, and 20 at 1000, 2000, 3000, and 4000 Hertz, respectively with speech recognition of 98 percent. These findings do not meet the criteria of 38 C.F.R. § 3.385 for service connection for bilateral hearing loss. The Board has considered the Veteran’s statement that constant ringing in his ears prevented him from distinguishing tones during his VA examination. The Board acknowledges that he is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran, however, is not competent to diagnose hearing loss for VA purposes because this requires expertise in the administration of audiological testing, and he is not competent to provide an opinion on the best methods for evaluating hearing difficulties. Section 3.385 prohibits a finding of a hearing disability when the requisite hearing status is not met. Hensley v. Brown, 5 Vet. App. 155, 157-164 (1993). Thus, the Veteran’s claimed hearing loss does not constitute a “presently existing disability,” for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1332, (Fed. Cir. 1997) (upholding the Secretary’s interpretation of 38 U.S.C. § 1131 to require a presently existing disability, and concluding that such a requirement comports with the other provisions of the statute as a whole). Accordingly, the Veteran’s claim of entitlement to service connection for bilateral hearing loss must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.