Citation Nr: 21000413 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-06 532 DATE: January 5, 2021 ORDER The application to reopen the claim for service connection for a right knee disorder is granted. The application to reopen the claim for service connection for tinnitus is granted. Service connection for tinnitus is granted. REMANDED Service connection for a right knee disorder. FINDINGS OF FACT 1. The veteran had active duty from January 1975 to January 1976, with periods of active duty for training (ACDUTRA) until 2003. 2. Service connection for a right knee disorder and tinnitus were denied in a July 2011 rating decision. The Veteran did not appeal, and that decision became final. 3. Evidence received since that July 2011 rating decision is new and raises the possibility of substantiating the claims. 4. The Veteran had noise exposure in service; tinnitus has been continuous since service. CONCLUSIONS OF LAW 1. The July 2011 rating decision, which denied service connection for a right knee disorder and tinnitus, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the July 2011 rating decision is new and material and the claim for a right knee disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The evidence received since the July 2011 rating decision is new and material and the claim for tinnitus is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. Tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran's claims for service connection for a right knee disorder and tinnitus were originally denied in a July 2011 rating decision. The right knee disorder was denied because there was no evidence showing it was incurred during a period of ACDUTRA. The tinnitus was denied as there was no evidence of acoustic trauma. Additionally, the service treatment records (STRs) were unavailable and there were only a few STRs from the Reserve. Evidence submitted since July 2011 rating decision included additional STRs, VA medical records, VA examinations, military personnel records, and a buddy statement. Right Knee In support of the appeal, the Veteran provided a buddy statement dated in January 2020 concerning the annual training in May 1999 where he remembered that the Veteran injured his knee. This evidence is new as it was not of record prior to the July 2011 rating decision. Moreover, the evidence is material as it relates to the unestablished element of a relationship between the Veteran's current right knee disorder and a period of ACDUTRA. Accordingly, with respect to the request to reopen the claim of service connection for a right knee disorder, the newly-added evidence relates to an unestablished fact necessary to substantiate the claim. As such, the appeal is granted to this extent and the claim is reopened and will be remanded below. Tinnitus The claim for service connection was denied in a July 2011 rating decision for lack of evidence showing he was exposed to acoustic trauma while on active duty. At the hearing, the Veteran explained that he was a supply clerk to an ordnance unit that housed and repaired missiles and bombs. He stated he worked on generators, went to units on tractor trailers, and was in place when they tested bombs and missiles. This evidence is new as it was not of record prior to the July 2011 rating decision. Moreover, the evidence is material as it relates to the unestablished element of a relationship between the Veteran’s job on active duty and tinnitus. Accordingly, with respect to the request to reopen the claim of service connection for tinnitus, the newly-added evidence relates to an unestablished fact necessary to substantiate the claim. As such, the appeal is granted to this extent and claim is reopened and will be addressed on the merits below. Service Connection for Tinnitus Having reopened the claim, the Board will address the appeal on the merits. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.309. Tinnitus is recognized by VA as "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258. Turning to the evidence, the Veteran testified at his hearing that he worked in a supply unit while on active duty where he was exposed to loud noises. He stated he worked around old generators and went out to the units on tractor trailer trucks. He was also present in the ordinance units when they tested bombs and missiles. He stated he spent a lot of time without ear protection or just the “foam things.” A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s statements are consistent with the nature of his service. Further, there is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to continuity, the Veteran reported that he has experienced tinnitus since separation from service. While there is an absence of complaints or treatment for tinnitus for many years after service, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). In sum, there is a favorable finding of acoustic trauma in-service and evidence of continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In the August 2015 VA examination, the examiner stated that there was no evidence in the STRs of the Veteran being evaluated for a right knee disorder during service. The examiner noted a left knee physical profile in March 1999 restricting the Veteran from running; however, the examiner did not address a June 1999 physical profile for a right knee meniscus tear, restricting the Veteran from running and heavy lifting. The right knee profile is consistent with the Veteran’s account of his right knee injury in the file and during his hearing and the buddy statement he subsequently provided. Therefore, a medical opinion is needed to address the right knee disorder. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, private and VA treatment records and associate them with the claims file. 2. Direct the claims file to a clinician to address the etiology of the Veteran’s right knee disorder in light of the right knee profile from 1999 and the Veteran’s statements and his buddy statement. Based on review of the record, the clinician is asked to offer a medical opinion as to the following: • whether it is at least likely as not (i.e. a 50 percent or better probability) that the Veteran’s right knee disorder was incurred in service. The clinician is advised that the Veteran is competent to report his medical history and symptoms and that those reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s report, the clinician must provide a rationale for doing so. A thorough rationale is request for all opinions rendered. 3. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.