Citation Nr: 21064886 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-57 128 DATE: October 21, 2021 ORDER New and material evidence has been received and the service connection claim for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In a January 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for tinnitus; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the January 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 3. Competent evidence reflects that the Veteran's tinnitus started during service after exposure to loud noises. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for tinnitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1991 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. . 1. Whether new and material evidence has been received to reopen a service connection claim for tinnitus 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. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's claim of service connection for tinnitus in a January 2011 rating decision, finding that the Veteran's current tinnitus is unrelated to service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2010). The evidence received since the January 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a June 2015 letter from one of the Veteran's doctors stated that the Veteran's longstanding history of tinnitus is possibly related to service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to service connection for tinnitus Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In this case, the Veteran testified that he worked on the flight line preparing aircraft for flying, retrieving them afterwards, repairing and maintaining them on the flight line. He stated that he worked 8 or more hours a day on the flight line with 15-16 other aircraft nearby all with running engines. Towards the end of his service, the Veteran noted the onset of his tinnitus. The Board has no reason to doubt the Veteran's reports of experiencing tinnitus during service and presently and finds these statements credible. The Board recognizes that in June 2015, a private physician also concluded the Veteran's tinnitus is related to service. The physician, however, did not offer a rationale explaining how she concluded the tinnitus is related to service. In addition, the Board also recognizes a December 2020 VA examiner concluded that tinnitus was not due to service because the symptom pattern did not match the expected pattern from noise induced tinnitus. The VA examiner, however, did not consider that the Veteran has now reported the onset of tinnitus during service. The Board finds the Veteran's testimony at his hearing to be probative as to the existence of tinnitus during service. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). REASONS FOR REMAND 3. Entitlement to service connection for a left foot disability is remanded. 4. Entitlement to service connection for a right foot disability is remanded. 5. Entitlement to service connection for a left ankle disability is remanded. 6. Entitlement to service connection for a right ankle disability is remanded. 7. Entitlement to service connection for a left knee disability is remanded. 8. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts he now has disabilities in his feet, ankles, and knees resulting from service. During service, his work on the flight line required walking, standing, crawling, and jumping onto the flight line concrete and asphalt. This occurred on a nearly daily basis for 8 hours or more. As a result, the Veteran now asserts he has arthritis in each foot, ankle, and knee. The Veteran has submitted letters from his treating physicians confirming he has arthritis bilaterally in his feet and ankles. While the letters do attribute the arthritis to his service, the physicians do not offer a rationale for their conclusions. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). There has not been a VA examination to determine whether the Veteran's lower extremity disabilities are related to incidents noted in the service treatment records or service generally or whether these disabilities are secondarily caused by service connected. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain the relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Before the VA examinations, the Veteran should be provided an opportunity to submit his treating physicians' records in support of his claims. Ongoing medical treatment records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his feet, bilateral ankle, and bilateral knee claims. The request should specifically include the records of Dr. R. Roycroft/Carolina Health System and Dr. R. Morgan/OrthoCarolina. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of either foot had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran's duties on the flight line maintaining aircraft. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of either ankle had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran's duties on the flight line maintaining aircraft. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of either knee onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran's duties on the flight line maintaining aircraft. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.