Citation Nr: 21002362 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-26 916 DATE: January 13, 2021 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a right knee disability is reopened and, to that extent only, the appeal is granted. New and material evidence having been submitted, the claim for entitlement to service connection for tinnitus is reopened and, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to left knee degenerative arthritis with total knee replacement, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or being housebound is remanded. Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. FINDINGS OF FACT 1. The claims for service connection for a right knee disability and tinnitus were previously denied in September 1962 and August 2003 rating decisions respectively, the Veteran did not appeal the decisions, and no new evidence pertinent to the claims was received within one year from the date the Veteran was mailed notice of each decision. 2. The additional evidence received since the final April 1962 and August 2003 rating decisions relate to unestablished facts necessary to substantiate the claims. CONCLUSIONS OF LAW 1. The additional evidence presented since the September 1962 rating decision is new and material, and the claim for service connection for a right knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The additional evidence presented since the August 2003 rating decision is new and material, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1942 to November 1945. This appeal is before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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). New and material evidence having been submitted, the claims for entitlement to service connection for a right knee disability and tinnitus are reopened and, to that extent only, the appeal is granted. The agency of original jurisdiction (AOJ) denied service connection for a right knee disability and tinnitus in September 1962 and August 2003 rating decisions, respectively. These decisions were not appealed, and no new evidence pertinent to either claim was received by VA within one year from the date that the AOJ mailed notice of the decisions to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of those decisions. Therefore, those decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.52, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The basis of the prior final denial of service connection for a right knee disability was that the evidence did not demonstrate that a right knee disability was related to an in-service injury. The basis of the prior final denial of service connection for tinnitus was that, although there was evidence that the Veteran was exposed to extensive noise in service as a gunner’s mate, he denied having tinnitus (ringing in his ears) on VA examination, and thus the record did not reflect current tinnitus. Evidence obtained since the September 1962 and August 2003 rating decisions includes the Veteran’s testimony at his September 2020 Board hearing. He testified that, as his service-connected left knee disability worsened, it began affecting his right knee condition; the Veteran is service-connected for left knee degenerative arthritis with total knee replacement. He further testified to having a current tinnitus condition. Without addressing the merits of this evidence, the Board finds that it addresses the issues of whether a current right knee disability is related to the Veteran’s service-connected left knee disability, and whether he has a current tinnitus disability, and raises a reasonable possibility of substantiating his service connection claims. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, new and material evidence has been submitted to reopen the Veteran’s service connection claims for a right knee disability and tinnitus. REASONS FOR REMAND Following the most recent AOJ certification of the appeal to the Board in June 2020, new, pertinent evidence was added to the claims file by VA, including September 2020 VA examinations and VA treatment records dated through September 2020. Such records were not initially considered by the AOJ in adjudicating the Veteran’s claims. The Board sent a letter to the Veteran and his representative in November 2020, informing them that the VA records in question were added to the file and not previously considered by the AOJ, and that the Veteran had the right to waive initial AOJ consideration of the evidence. A form for waiving initial AOJ review of the evidence was enclosed. The letter further stated that if the Board did not receive a response in 45 days, it would assumed that the Veteran did not wish to have the Board decide the appeal and would remand it to the AOJ for review. Neither the Veteran nor his representative responded, and initial AOJ review of the records in question has not been waived. Therefore, the claims remaining on appeal must be remanded for the AOJ to consider all new evidence of record. See 38 C.F.R. § 20.1304(c). Also, as discussed above, in September 2020, the Veteran testified that his service-connected left knee degenerative arthritis with total knee replacement—currently rated 60 percent—had affected his right knee problems. VA treatment records reflect current right knee disability, including arthritis and a total knee replacement, and that the Veteran’s knee problems over the years have resulted in abnormal and unsteady gait. The issue of service connection for a right knee disability, to include as secondary to left knee degenerative arthritis with total knee replacement, has therefore been raised. See 38 C.F.R. § 3.310. There is no medical opinion of record addressing whether any right knee disability was caused or aggravated by the Veteran’s service-connected left knee disability. Given the evidence of record, such an opinion should be obtained on remand. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, as noted above, while the AOJ has acknowledged evidence that the Veteran was exposed to extensive noise in service as a gunner’s mate, it found that he denied having tinnitus (ringing in his ears) on VA examination, and thus that the record did not reflect current tinnitus. While in July 2003 a VA examiner determined that the Veteran’s service-related noise exposure was a contributing factor to his bilateral hearing loss—for which he was subsequently service-connected—it was noted that he denied tinnitus. It was again noted on August 2016 VA examination that the Veteran did not report tinnitus, and had not reported tinnitus on any other audiology examinations. However, as also noted above, in September 2020, the Veteran also testified that he currently has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that a lay person is competent to report tinnitus “because ringing in the ears is capable of lay observation”). Under these circumstances, on remand, the AOJ should also obtain an opinion as to whether any current tinnitus is related to service, to include the Veteran’s extensive noise exposure as a gunner’s mate, or to his service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner to determine the etiology of the Veteran’s current right knee disability, to include arthritis and a total knee replacement. If the requested opinions cannot be provided without examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The claims file and a copy of this Remand must be reviewed by the examiner. After reviewing the claims file, the examiner should determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that: a. any right knee disability, to include arthritis and a total knee replacement, had its onset in service or is other related to service, to include as due to injury in service, or b. any right knee disability, to include arthritis and a total knee replacement, is caused or aggravated (i.e. worsened beyond its natural progression) by his service-connected left knee degenerative arthritis with total knee replacement. All opinions are to be accompanied by a rationale consistent with the evidence of record. 2. Forward the claims file to an appropriate VA examiner to determine the etiology of his current tinnitus. If the requested opinions cannot be provided without examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The claims file and a copy of this Remand must be reviewed by the examiner. After reviewing the claims file, the examiner should determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that tinnitus is either: a. The result of, or otherwise related to, service, to include the Veteran’s in-service exposure to extensive noise as a gunner’s mate; or b. Caused or aggravated (i.e. worsened beyond its natural progression) by his service-connected bilateral hearing loss. All opinions are to be accompanied by a rationale consistent with the evidence of record. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.