Citation Nr: 21062945 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-49 725 DATE: October 12, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right knee degenerative joint disease is granted. Entitlement to increases in the staged ratings (of 10 percent prior to March 23, 2017, and 30 percent since May 1, 2018) for left total knee replacement is dismissed. Entitlement to increases in the staged ratings (of 10 percent prior to October 7, 2019, and 30 percent since December 1, 2020) for right total hip replacement is dismissed. Entitlement to increases in the staged ratings (of 0 percent prior to December 9, 2011, and 30 percent since December 9, 2011) for left total knee replacement scars is dismissed. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to a rating in excess of 10 percent for a right hand disability (previously characterized as residuals of a jammed right thumb) is remanded. FINDINGS OF FACT 1. An unappealed March 2004 rating decision denied service connection for left ear hearing loss and for a right knee disability. 2. Evidence received since the March 2004 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's left ear hearing loss and right knee disability claims. 3. The Veteran's bilateral hearing loss is related to her in-service acoustic trauma. 4. Tinnitus had its onset in service. 5. The Veteran's right knee degenerative joint disease is etiologically related to service. 6. During the August 2021 Board of Veterans' Appeals (Board) hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew her appeal as to the issue of entitlement to increases in the staged ratings (of 10 percent prior to March 23, 2017, and 30 percent since May 1, 2018) for left total knee replacement. 7. During the August 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew her appeal as to the issue of entitlement to increases in the staged ratings (of 10 percent prior to October 7, 2019, and 30 percent since December 1, 2020) for right total hip replacement. 8. During the August 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew her appeal as to the issue of entitlement to increases in the staged ratings (of 0 percent prior to December 9, 2011, and 30 percent since December 9, 2011) for left total knee replacement scars. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying the claims of service connection for left ear hearing loss and a right knee disability is final. 38 U.S.C. § 7105. 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. 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, 3.385. 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for entitlement to service connection for right knee degenerative joint disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for withdrawal of an appeal regarding entitlement to increases in the staged ratings (of 10 percent prior to March 23, 2017, and 30 percent since May 1, 2018) for left total knee replacement have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 8. The criteria for withdrawal of an appeal regarding entitlement to increases in the staged ratings (of 10 percent prior to October 7, 2019, and 30 percent since December 1, 2020) for right total hip replacement have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 9. The criteria for withdrawal of an appeal regarding entitlement to increases in the staged ratings (of 0 percent prior to December 9, 2011, and 30 percent since December 9, 2011) for left total knee replacement scars have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1983 to August 2003. The Veteran testified before the undersigned Veterans Law Judge in an August 2021 virtual hearing. During the pendency of the appeal, a November 2018 rating decision granted an increased rating (10 percent) for the Veteran's service-connected residuals of a jammed right thumb, effective November 3, 2010. The Board notes that VA is to construe the claims of Veteran's liberally, focusing on the area of the body or description of the condition claimed rather than the specific diagnosis noted by the Veteran. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, to the extent the Veteran filed a claim seeking service connection for a left thumb/wrist disability, and seeks an increased rating for residuals of a jammed right thumb, the Board is liberally construing the Veteran's claims as claims seeking service connection for a left hand disability and an increased rating for a right hand disability. New and Material Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Whether new and material evidence has been received to reopen service connection for left ear hearing loss. Historically, an unappealed March 2004 rating decision denied the Veteran's claim of service connection for left ear hearing loss based on a finding that impaired hearing considered to be a disability was not shown. See October 2003 VA audiological examination. No additional evidence pertinent to this issue was associated with the claims file within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the March 2004 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for hearing loss was received in November 2010. Since the March 2004 rating decision, the Veteran submitted additional evidence, including a May 2012 VA audiological examination reflecting left ear hearing loss pursuant to 38 C.F.R. § 3.385. This evidence is new, in that it was not previously of record at the time of the March 2004 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for left ear hearing loss. 2. Whether new and material evidence has been received to reopen service connection for a right knee disability. Historically, an unappealed March 2004 rating decision denied the Veteran's claim of service connection for a right knee disability based on lack of a current disability. No additional pertinent to this issue was associated with the claims file within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the March 2004 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for a right knee disability was received in November 2010. Since the March 2004 rating decision, the Veteran submitted additional evidence, including a December 2018 VA examination diagnosing right knee osteoarthritis. This evidence is new, in that it was not previously of record at the time of the March 2004 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for a right knee disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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 or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On October 2003 VA audiological examination, the Veteran reported her left ear felt "stopped up." She also stated that her service included noise exposure from working near the flight line. Physical examination did not reveal hearing loss pursuant to 38 C.F.R. § 3.385. In her November 2010 claim, the Veteran reiterated that her officer was frequently on the flight line during service, and that she also worked as a courier during service, exposing her to acoustic trauma from aircraft and equipment engines. The Veteran contends that she noticed a difference in her hearing during her active service and that it has progressively worsened, and that she first began experiencing ringing in her ears (tinnitus) during her active service. See December 2018 Veteran correspondence; see also May 2012 VA audiological examination; August 2021 Board hearing. The Veteran has a current diagnosis of bilateral hearing loss and tinnitus pursuant to 38 C.F.R. § 3.385. See May 2012 VA audiological examination. Thus, the first element of service connection is met. Regarding in-service incurrence, the Veteran has consistently and repeatedly stated that her duties involved being near the flight line, and that she also worked as a courier, also exposing her to acoustic trauma from aircraft and equipment engines. The Board finds the Veteran's account of acoustic trauma and noise exposure during service to be credible and consistent with the circumstances of her service. Because in-service noise exposure is established, the second element of service connection has been met. The remaining question is whether there is a nexus between the Veteran's in-service noise exposure and her current bilateral hearing loss and tinnitus. The Veteran has competently and credibly reported that she experienced hearing loss and tinnitus during and since service due to the in-service acoustic trauma. Based on the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted because the disabilities had their onset in service. In reaching this determination, the Board acknowledges the negative nexus opinion provided on May 2012 VA audiological examination. The Board finds the opinion provided to be of limited probative value as the examiner's negative nexus opinion was based, at least in part, on the finding that the Veteran's retirement examination was silent for hearing loss. The examiner noted that there was a significant shift in the Veteran's bilateral hearing sensitivity on the retirement examination. The examiner concluded that the configuration of the audiogram on evaluation was not consistent with noise exposure, but provided no rationale for such opinion, including addressing the shift in hearing sensitivity on retirement examination already acknowledged by the examiner. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board assigns no probative value to the May 2012 VA audiological examiner's negative nexus opinion. In addition, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the Veteran's credible lay statements as to the onset of her bilateral hearing loss and tinnitus, as well as the conceded acoustic trauma during service, resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 C.F.R. § 3.303(d); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). 5. Entitlement to service connection for a right knee disability. The Veteran seeks service connection for a right knee disability, contending such began during service and has been recurrent since that time. The Veteran's service treatment records show that in May 1985 report noting the Veteran's complaint of right knee pain. A May 1996 report noted her complaint of right knee pain for one month. A June 1996 report noted the Veteran's complaint of right knee pain, and provided an assessment of patellofemoral syndrome. An August 1996 report noted a couple months history of right knee pain. Post-service treatment records show a diagnosis of right knee degenerative joint disease and her complaints of right knee pain and swelling. See December 2018 VA knee and lower leg conditions examination; see also August 2018 VA right knee x-rays. The Board acknowledges the negative nexus opinion provided on December 2018 VA examination. Notably, the examiner indicated that the Veteran had only recent complaints of her right knee and indicated she had age-related degeneration. However, contrary to the examiner's statement, the Veteran complained on September 2003 VA general examination, within a month after her retirement from service, of recurrent bilateral knee pain. Medical opinions have no probative value when they are based on an inaccurate factual premise, as in this case. See Reonal v. Brown, 5 Vet. App. 548 (1993). In addition, the Veteran is competent to report recurrent right knee pain and swelling, and the Board does not question the credibility of the Veteran's reports of right knee pain and swelling. Accordingly, the Board finds the December 2018 VA examination inadequate. Here, the Board finds that the Veteran's reports and testimony of recurrent right knee pain during and since service to be competent and credible, and supported by her service treatment records. Given the competent and credible reports of the onset and recurrence of her right knee disability during and since service, and her current diagnosis of right knee degenerative joint disease, the Board finds that service connection for right knee degenerative joint disease is warranted. 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. Inasmuch as this decision is granting service connection for a right knee disability as directly related to service, there is no need for the Board to consider any alternative theories of entitlement, such as his right knee being secondary to his left knee disability. Increased Rating 6. Entitlement to increases in the staged ratings (of 10 percent prior to March 23, 2017, and 30 percent since May 1, 2018) for left total knee replacement. 7. Entitlement to increases in the staged ratings (of 10 percent prior to October 7, 2019, and 30 percent since December 1, 2020) for right total hip replacement. 8. Entitlement to increases in the staged ratings (of 0 percent prior to December 9, 2011, and 30 percent since December 9, 2011) for left total knee replacement scars. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204(b). Here, the Veteran withdrew the issues of entitlement to staged increased ratings for her left total knee replacement, right total hip replacement, and left total knee replacement scars, on the record during an August 2021 Board hearing. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that she was requesting a withdrawal as to these appealed issues. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn these issues. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there is no remaining allegation of error of fact or law for appellate consideration regarding these issues, the Board does not have jurisdiction to review them, and they are dismissed. REASONS FOR REMAND 9. Entitlement to service connection for a low back disability is remanded. The evidence of record reflects diagnoses of lumbar spine lordosis, scoliosis, and degenerative joint disease. See June 2017, August 2018 x-rays of the lumbar spine. The Veteran contends that her low back disability is directly related to service, and alternatively secondary to her service-connected left knee disability. See June 2017 VA back conditions examination (relating the onset of her low back symptomatology to 1995); see also January 2019 Veteran correspondence. The Veteran was afforded a VA examination and opinion in June 2017. Notably, the examiner failed to address the aggravation theory of entitlement for the Veteran's low back disability as related to her service-connected left knee disability. Moreover, since the June 2017 examination, the post-service treatment records reflect additional diagnoses of the low back. Therefore, the Board finds that the matter of entitlement to service connection for a low back disability must be remanded for another examination and opinion as to the nature and etiology of the Veteran's low back disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). 10. Entitlement to service connection for a left hand disability is remanded. 11. Entitlement to a rating in excess of 10 percent for a right hand disability (previously characterized as residuals of a jammed right thumb) is remanded. As noted above, the Veteran's claim for service connection for a left thumb/wrist disability and an increased rating for residuals of a jammed right thumb have been liberally construed as claims seeking service connection for a left hand disability and an increased rating for a right hand disability. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes that the Veteran has also established service connection for right wrist osteoarthritis, but that such is not on appeal. See September 2014 rating decision. The Veteran was afforded a VA examination in December 2011 in which she reported bilateral pain to the thumb and wrist, decreased strength, decreased dexterity, and during flare-ups she cannot grab or hold objects, her hand gets limp and weak, and her hands are painful to the touch. Physical examination revealed bilateral wrist weakness and tenderness. The Veteran testified at the August 2021 hearing that her left hand disability is due to voluminous typing in service. Notably, post-service VA treatment records reflect a diagnosis of carpal tunnel syndrome. See, e.g., March 2017 VA treatment record. The Veteran has also indicated that her duties during service required considerable typing and that she noticed bilateral hand pain during service, worsened with driving or typing. See May 2018 VA treatment record. In light of the Veteran's complaints and the post-service diagnosis of carpal tunnel syndrome, the Board finds that these matters must be remanded for an examination to determine the nature and etiology of her right and left hand disabilities (other than right wrist osteoarthritis). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, ect., if an in-person examination is not feasible) to determine the onset and etiology of her low back disability. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any low back disability found. The examiner should acknowledge June 2017 and August 2018 VA x-rays of the lumbar spine that revealed mild lordosis and scoliosis, and degenerative joint disease, respectively. (b) For any low back disability diagnosed, please opine as to whether it is at least as likely as not that such condition had its onset or is otherwise related to the Veteran's active service, to specifically include as due to her duties during service, to include carrying heavy inspection binders, briefcases, suitcases, etc. (c) Whether it is at least as likely as not that the Veteran's low back disability is proximately due to her service-connected left knee, right knee, left hip and/or right hip disabilities? (d) Whether it is at least as likely as not that the Veteran's low back disability has been aggravated by her service-connected left knee, right knee, left hip and/or right hip disabilities? Please note that separate opinions addressing proximate cause and aggravation are needed. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that the service-connected disabilities be diagnosed or even service-connected at the time the low back disability was incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, ect., if an in-person examination is not feasible) to determine the onset, etiology and current severity of her right and left hand disabilities. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any right and left hand disability found. If no such disability is diagnosed, the examiner must indicate whether the Veteran's reported bilateral hand symptomatology causes any functional impairment. If carpal tunnel syndrome is not diagnosed, the examiner is asked to reconcile such finding with the diagnosis of such in the post-service VA treatment records. (b) For any right and left hand disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran's active service, to include as a result of her duties during service, including repetitive typing. (c) If carpal tunnel syndrome of the right and/or left hand is found, the examiner must indicate the affected nerve and whether the impairment is in the nature of a neuritis, a neuralgia, and/or paralysis. If paralysis of any nerve is identified, the examiner must indicate whether the paralysis is incomplete and, if it is incomplete, whether the incomplete paralysis is best characterized as mild, moderate, moderately severe, or severe. The examiner must acknowledge and discuss the Veteran's testimony of recurrent symptomatology since service. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.