Citation Nr: 21005254 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-54 673 DATE: January 29, 2021 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for bilateral hearing loss is granted. The request to reopen the finally disallowed claim of entitlement to service connection for a right knee injury is granted. The request to reopen the finally disallowed claim of entitlement to service connection for a back injury is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a back condition, diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis, and previously claimed as a back injury, is granted. REMANDED Issue of entitlement to service connection for dermatological issues is remanded. Issue of entitlement to service connection for a right knee condition is remanded. FINDINGS OF FACT 1. The Veteran’s claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury were denied in a September 2002 rating decision. 2. The Veteran appealed the September 2002 rating decision and a Statement of the Case (SOC) was issued, but the appeal was not perfected to the Board of Veterans Appeals (Board) and the September 2002 rating decision then became final. 3. Evidence received since the September 2002 rating decision are new to the record, relate to unestablished facts, and a raise reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury. 4. The evidence is in at least relative equipoise as to whether the Veteran has a current disability of bilateral hearing loss that was incurred in or is otherwise due to service. 5. The evidence is in at least relative equipoise as to whether the Veteran has a current disability of tinnitus that was noted during service with a continuity of symptoms since discharge from active duty. 6. The evidence is in at least relative equipoise as to whether the Veteran’s degenerative arthritis of the spine with right sacroiliac joint dysfunction and intermittent radiculitis is a chronic disease that manifested in service as shown by a continuity of symptomatology. CONCLUSIONS OF LAW 1. The September 2002 rating decision that denied entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence has been received as to the issues of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury, the criteria for reopening the claims have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 5. The criteria for entitlement to service connection for a back condition, diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to July 1975 and September 1977 to September 1981. The Veteran also has Reserve and National Guard service with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Board notes that the Veteran obtained veteran status during his first period of active duty, which preceded his Reserve and National Guard service. July 1975 DD Form 214; June 1982 Statement of Service; June 1998 NGB Form 22. This appeal to the Board arose from August 2016 and September 2016 rating decisions issued by the Department of Veterans Affairs (VA). See May 2017 Notice of Disagreement (NOD); September 2017 SOC; October 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a September 2020 hearing. See September 2020 Hearing transcript. New and Material Evidence 1. The request to reopen the finally disallowed claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury. The Veteran requested that his claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury be reopened. October 2015 VA Form 21-526EZ; December 2015 VA Form 21-526EZ. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (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). The Veteran’s claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury were previously denied in a September 2002 rating decision. Each of the Veteran’s claims were denied because the evidence at the time did not show current disabilities. Id. The Veteran appealed and an SOC was issued, but the Veteran did not perfect his appeal to the Board and the September 2002 rating decision then became final. See September 2002 NOD; August 2003 SOC. The Board finds that new and material evidence has been added to the claims file since the September 2002 rating decision. An August 2015 audiological evaluation supports that the Veteran has a left ear pure tone threshold of 40 decibels at the 3000 Hertz frequency and a right ear pure tone threshold of 40 decibels at 4000 hertz, which are considered impaired hearing for the purposes of applying the laws administered by VA. August 2015 Private treatment evidence; 38 C.F.R. § 3.385. The August 2016 VA examiner diagnosed the Veteran with a current disability of right knee osteoarthritis. August 2016 VA examination for knee and lower leg conditions. Finally, the May 2016 VA examiner diagnosed the Veteran with a current disability of degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis. May 2016 VA examination for back conditions. This evidence is new as it was not available at the time of the September 2002 rating decision. The evidence is material as it relates to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claims. Accordingly, new and material evidence has been received and the claims of entitlement to service connection for bilateral hearing loss, a right knee injury, and a back injury are reopened. Service Connection The term “active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military, naval, or air service or, if preexisting such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, including arthritis or an organic disease of the nervous system such as hearing loss and tinnitus, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for bilateral hearing loss. The Veteran testified that he first noticed hearing loss and tinnitus during service in 1979 to 1980, due ot working near a generator without hearing protection as a radio operator. September 2020 Hearing transcript. The Veteran testified that the ringing in his ear was predominantly in the left ear but continues today. Id. After careful and thorough review of the evidence, the Board finds that the evidence supports that the Veteran has a current disability of bilateral hearing loss that was incurred in or otherwise related to service. An August 2015 audiological evaluation shows that the Veteran had a pure tone threshold value of 40 decibels in the left ear at the 3000 Hertz frequency and 40 decibels in the right ear at 4000 Hertz, which is considered a hearing disability for the purposes of applying the laws administered by VA. August 2015 Private treatment evidence; 38 C.F.R. § 3.385. The Veteran’s testimony about his in service hazardous noise exposure is consistent with the circumstances of his second period of active duty as a radio teletype operator. See September 1981 DD Form 214. Service treatment records also indicate that the Veteran showed evidence of hearing loss and noted his work around generators without hearing protection. June 1979 Service treatment records. Later treatment notes indicate his hearing loss resolved and that the cause of his hearing loss is unexplained. January 1980 Service treatment records. Finally, private medical treatment provider B J N, AUD, CCC-A, opined that early onset presbycusis and occasional civilian noise exposure contributed to the Veteran’s current hearing loss disability, but at least some degree of his hearing loss is due to the excessive noise exposure from loud generators and firearms during service. See May 2017 Private treatment evidence. The Board finds Dr. B J N’s opinion to be probative as he is a medical professional qualified to evaluate the cause of the Veteran’s current hearing loss and had the opportunity to perform an audiological evaluation. The Board recognizes that the August 1981 Report of Medical Examination for separation from his second period of active duty shows pure tone threshold values of only 15 or 20 decibels for each frequency from 500 to 4000 Hertz in both his right and left ears. In addition, Audiograms during his National Guard service show pure tone threshold values ranging from 5 to 30 decibels. See, e.g., January 1986 Service treatment record; November 1989 Service treatment record; February 1996 Service treatment record. The Board also recognizes that the April 2016 VA examiner found pure tone threshold values of 35 decibels or less in his right ear, which would not support a current hearing impairment as defined by VA, and opined that the Veteran’s left ear hearing loss is less likely than not caused by or was aggravated by service. April 2016 VA examination for hear loss and tinnitus. The Board finds that this evidence raises a reasonable doubt as to whether the Veteran has a current disability of right and left ear hearing loss that was incurred in or otherwise due to service. In resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence supports the Veteran has a current disability of bilateral hearing loss that was incurred in or otherwise due to service. Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 3. Entitlement to service connection for tinnitus. The Veteran testified that he experienced tinnitus during service due to working near a generator without hearing protection, and that the ringing in his ears has continued since then. See September 2020 Hearing transcript. The Board finds that the evidence supports the Veteran has a current disability of tinnitus and in-service hazardous noise exposure. In 2015, the Veteran’s private treatment provider diagnosed the Veteran’s with tinnitus. April 2015 Private treatment evidence. As discussed above, the Veteran’s lay statements about his in service noise exposure is consistent with the circumstances of his second period of active duty. See September 1981 DD Form 214; June 1979 Service treatment records. The Veteran was afforded an April 2016 VA examination for hearing loss and tinnitus in which the VA examiner found no evidence of recurrent tinnitus and that there was no chronicity or continuity of care for tinnitus. However, a review of the April 2016 VA examination report indicates that the VA examiner was not aware of the April 2016 private treatment evidence showing the Veteran was diagnosed with tinnitus. The April 2016 VA examiner also did not have the benefit of the Veteran’s testimony during the September 2020 Board hearing. The Board finds the April 2016 VA examiner’s opinion to be less probative for those reasons. Moreover, given the inherently subjective nature of tinnitus, the Veteran is uniquely situated to competently identify and report on the onset and duration of ringing in his ears. A lay person is competent to provide an opinion on the presence of recurrent ringing in the ears since service, as the symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran testified that he experienced ringing in his ears in service and that he experienced such ringing ever since service, and finding that the veteran was competent to so testify because ringing in the ears was capable of lay observation). In this case, the Board finds the Veteran’s statements about having ringing in his ear since his 1981 separation from active duty to be probative and that it supports a continuity of symptomatology for tinnitus at least since his discharge from activity duty in September 1981. The Board notes that Dr. B J N also opined that the Veteran’s tinnitus is related to his years of excessive noise exposure during service, which would support entitlement to service connection under a direct basis as well. Based on the more probative medical and lay evidence, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s tinnitus was noted during service with a continuity of symptoms since. Accordingly, entitlement to service connection for tinnitus is warranted. 4. Entitlement to service connection for a back condition, diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis, and previously claimed as a back injury. The Veteran asserts entitlement to service connection for a back condition due to lifting tents during service around 1979 or 1980, which caused back pain and being placed on profile. October 2015 Correspondence; September 2020 Hearing transcript. The evidence shows that the Veteran has a current back condition diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis. May 2016 VA examination for back conditions. The Board finds that the medical treatment evidence supports that the Veteran’s back condition is a chronic disease that manifested during service. Service treatment records show that the Veteran was treated for upper back pain from lifting tents, consistent with his lay statements. May 1980 Service treatment records. The Veteran then noted on his August 1981 Report of Medical History during separation that he has occasional back pain. Lumbar spine x-rays taken in 1993 showed mild hypertrophic changes involving the lower vertebral bodies. February 1993 VA treatment evidence. In 2005, the Veteran sought treatment for onset of low back pain without injury and was diagnosed with acute low back pain. December 2005 VA treatment evidence. In 2007, the Veteran sought treatment for hip and lower leg pain that was diagnosed as consistent with sciatica. March 2007 VA treatment evidence. The evidence shows the Veteran did not seek medical treatment for his back again until 2015 in which he reported worsening lower back pain since his 1980 in service injury that is affecting his quality of life. October 2015 Private treatment evidence. The medical treatment evidence supports that the Veteran’s back condition was noted during his second period of active duty and there has been a continuity of symptoms since. The Board considered the May 2016 VA examination for back conditions. The VA examiner opined that the Veteran’s current back condition is less likely than not incurred in or caused by service. Id. The VA examiner’s rationale is that the Veteran’s back pain during service was for the “upper” back and not the lower, and the first complaint for low back pain was not until 2005. Id. However, as noted above, the Veteran obtained lumbar spine x-rays in 1993 that showed hypertrophic changes in his lower vertebral bodies. The Veteran also reported during the VA examination that he self-treated his back pain since his 1981 separation from active duty, with some improvement, but worsening symptoms over time. See id. The Board also finds that whether the Veteran reported his back pain as due specifically to his upper or lower back to be less probative. The Board finds the May 2016 VA examiner’s opinion, however, to be probative as it is provided by a medical professional qualified to opine on the cause of the Veteran’s current back condition, who provided a detailed report to support her opinion. The Board also recognizes that the Veteran related to his treatment provider during his December 2005 treatment visit for back pain that he has not had back trouble since “1978.” December 2005 VA treatment evidence. This evidence raises a reasonable doubt as to whether the Veteran’s current back condition, diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis, manifested during service. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s other lay statements which have consistently reported back symptoms since his 1980 in-service back injury and the medical treatment evidence showing he has sought medical treatment for back pain since his 1981 separation, support a continuity of symptomatology since 1981 discharge from active duty. Accordingly, the Board finds that entitlement to service connection for a back condition, diagnosed as degenerative disc disease with right sacroiliac joint dysfunction and intermittent radiculitis, and previously claimed as a back injury, is warranted. REASONS FOR REMAND 1. Issue of entitlement to service connection for dermatological issues is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for dermatological issues because an addendum opinion is needed by a VA examiner. The June 2016 VA examiner opined that the Veteran’s dermatological issues on his upper torso is less likely than not incurred in or caused by the boil on his right thigh during service. June 2016 VA examination for skin diseases. The VA examiner’s rationale noted that the Veteran has had several skin conditions, but evidence of a chronic furuncle condition since his 1981 separation. See id. This does not explain why his folliculitis or seborrheic dermatitis is less likely than not incurred in or otherwise due to service. The Board finds that further detail is needed as to why his current skin conditions, including folliculitis, was not incurred in or otherwise relate to his in service right thigh boil. In addition, the Board notes that the Veteran was also diagnosed with chronic tinea corporis and a furuncle on his right hip during a September 2016 VA treatment visit. The Board finds that an addendum opinion is needed. 2. Entitlement to service connection for right knee right knee condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for right knee osteoarthritis because an addendum opinion is needed from a VA examiner. The September 2016 VA examiner opined that it is less likely than not that the Veteran’s right knee osteoarthritis was incurred in or caused by an in-service injury or illness based on evidence that is against finding his asserted right knee injury was during a period of active military, naval, or air service, including a period of ACDUTRA. See September 2016 VA examination medical opinion. However, while the evidence indicates that the Veteran’s reported 1997 right knee injury did not occur during a period of ACDUTRA, the Veteran also testified that the general physical training during ACDUTRA put a “toll” on his knee. The Board finds that an addendum opinion is needed as to whether the Veteran’s right knee osteoarthritis preexisted a period or periods of ACDUTRA and, if so, whether the evidence shows a worsening of the condition occurred during ACDUTRA, and that the worsening was caused by the period of ACDUTRA; i.e. that the aggravation occurred in the line of duty. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and cause of the Veteran’s current dermatological issues. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination (or a telehealth interview, review of the record etc., if an in person examination is not feasible). The medical professional should respond to the following: (a) Identify the Veteran’s current dermatological issues. The medical professional should consider and discuss the evidence of folliculitis, seborrheic dermatitis, chronic tinea corporis, and a September 2016 right hip furuncle. (b) For each identified current dermatological issue, is it at least as likely as not (a 50 percent or greater probability) that the condition began in (or is otherwise related to) the Veteran’s service? The medical professional should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms, including that he developed a rash from contact with cotton underwear during service. The medical professional should also consider the May 1979 service treatment record showing that the Veteran was treated for a boil on his right thigh during a period of active duty and if it is related to his current dermatological issues, including his folliculitis and his September 2016 furuncle on his right hip. Provide a rationale. 2. If possible, obtain an addendum opinion from the same medical professional who provided the September 2016 VA examination for knee and lower leg conditions. If not possible, obtain an addendum opinion from another medical professional to determine the nature and cause of the Veteran’s right knee osteoarthritis. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination (or a telehealth interview, review of the record etc., if an in person examination is not feasible). The medical professional should respond to the following: (a) Identify the Veteran’s current right knee conditions. Specifically discuss right knee osteoarthritis and right knee partial tear and whether the evidence supports that the Veteran has or has had these disabilities during the period on appeal. (b) For each identified current right knee condition, is it at least as likely as not (a 50 percent or greater probability) that the condition preexisted or existed during the Veteran’s periods of ACDUTRA from August 30, 1989, to June 6, 1998? Consider and discuss the October and December 1997 medical treatment evidence for a right knee injury and pain. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (c) For each identified current right knee condition found to have preexisted or existed during his periods of ACDUTRA, is it at least as likely as not that (a 50 percent or greater probability) that the condition was aggravated (worsened) during a period of ACDUTRA and that the aggravation was caused by the period of ACDUTRA? Consider the Veteran’s statement that his training during ACDUTRA took a “toll” on his knee. (Continued on the next page)   3. Readjudicate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.