Citation Nr: 21066724 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-15 713 DATE: November 2, 2021 ORDER New and material evidence having been received, the service connection claim for bilateral hearing loss is reopened. New and material evidence having been received, the service connection claim for tinnitus is reopened. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a low spine disability, to include as secondary to service-connected left and right knee disabilities is remanded. FINDINGS OF FACT 1. In a September 2011 rating decision, the RO denied entitlement to service connection for bilateral hearing loss. The Veteran did not timely appeal the decision or submit new and material evidence during the applicable one-year appellate period. The rating decision therefore became final. 2. The evidence associated with the claims file subsequent to the September 2011 rating decision is not cumulative and redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. In a September 2011 rating decision, the RO denied entitlement to service connection for tinnitus. The Veteran did not timely appeal the decision or submit new and material evidence during the applicable one-year appellate period. The rating decision therefore became final. 4. The evidence associated with the claims file subsequent to the September 2011 rating decision is not cumulative and redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, and raises a reasonable possibility of substantiating the claim. 5. The Veteran's left knee disability is related to an injury sustained during active service. 6. The Veteran's right knee disability is related to an injury sustained during active service. CONCLUSIONS OF LAW 1. The September 2011 rating decision as to the denial of service connection for hearing loss is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 3. The September 2011 rating decision as to the denial of service connection for tinnitus is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 5. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1981 to November 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing has been associated with the record. New and Material 1. New and material evidence having been received, the service connection claim for bilateral hearing loss is reopened 2. New and material evidence having been received, the service connection claim for tinnitus is reopened The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 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, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus in a September 2011 rating decision. The Veteran was notified of the denial and his procedural and appellate rights in a September 12, 2011, letter sent to his address of record and to his representative. He did not file a notice of disagreement within the one year of notice of the September 2011 rating decision. No additional evidence was received within one year of notice of the September 2011 rating decision. For this reason, the September 2011 rating decision denying service connection for bilateral hearing loss and tinnitus became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence associated with the claims file subsequent to the September 2011 rating decision includes, in pertinent part, the Veteran's testimony during his June 2021 hearing. The Veteran gave a detailed account of his noise exposure during service, to include a 1985 incident where he testified that the pressure in the aircraft he was aboard dropped, causing injury to his ears. The Veteran further testified that both his hearing loss and tinnitus had their onset immediately following separation from service. This evidence is new, as it was not of record at the time of the September 2011 rating decision. It is also material to the reason for the prior denial, namely whether the Veteran has a current disability that is etiologically related to military service. Accordingly, the Board concludes that the criteria for reopening the Veteran's claims for service connection for bilateral hearing loss and tinnitus are met. 38 C.F.R. § 3.156(a). Service Connection 3. Entitlement to service connection for a left knee disability 4. Entitlement to service connection for a right knee disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that his disabilities of the left and right knee are related to an injury sustained during active service. With regard to the first element, a current disability, the evidence conclusively establishes that the Veteran has diagnoses of bilateral meniscus tear, bilateral osteoarthritis of the knees, and bilateral total knee replacement. See VA examination, submitted July 20, 2020. Accordingly, the first element is met. As to the second element, an in-service incurrence, the Veteran has reported that in 1986, he and fellow servicemembers were carrying a 2,500-pound wooden structure when it fell on both his thighs/knees injuring him. The Veteran's service treatment records (STRs) indicate that he was treated on August 6, 1986, for a complaint of left thigh pain. The Veteran's STR's also show that the Veteran sought emergency treatment in July 1983, reporting that he twisted his right knee. The Board finds that collectively, the lay and medical evidence of record establishes that the Veteran incurred injuries to both knees during service. Accordingly, the second element is met. As to the third and final element of service connection, a nexus between the Veteran's current disability and service, the Board also concludes that this element has been met. The Veteran's October 1986 separation examination is silent as to any knee condition. However, the Veteran has reported that his brother was shot immediately before his separation from service, and he did not report his knee pain at separation in an effort to be quickly released from duty and return home. The Veteran's accounts are corroborated by a lay statement from a parent. See Buddy/Lay Statement, submitted June 22, 2021. The lay evidence of record also indicates that the Veteran has experienced symptoms related to his bilateral knee condition since service. The Veteran reports that following separation in December 1986, he began experiencing symptoms as early as late 1987. See Hearing Transcript, dated June 28, 2021. Lay statements from the Veteran's parents, wife, brother, and long-time friends, collectively indicate that the Veteran returned home limping after separation and that his condition has continued to deteriorate. As to the medical evidence supporting the Veteran's claim, a private medical opinion was submitted by Dr. N. E. in July 2020. Dr. N. E. opined that the Veteran's bilateral knee disability was secondary to his soft tissue injury to the thigh that was sustained in service. Dr. N. E. noted the Veteran's account of a 2,860-pound wooden frame falling on his thighs (just above his knees) during service in 1986, along with the August 6, 1986, treatment for left thigh pain. It was further noted that the Veteran had left thigh bruising, spasm with tenderness, a soft tissue injury, and was treated with muscle relaxers. Dr. N. E. noted that the Veteran currently suffers from bilateral leg pain and swelling in the area above the knees and that the impairment causes pain when walking. He was noted to have severe osteoarthritis and meniscal tears in both knees that required surgical treatment several times. Dr. N. E. also noted that while the Veteran's STRs only showed treatment for the left thigh, it was not possible that the wooden structure fell on only one leg and not the other. Additionally, it was noted that both legs displayed identical symptoms. As rationale, Dr. N. E. explained that the soft tissue injury caused contusion, inflammation, swelling and pain in the quadriceps, which strengthens the knee and patella. The swelling and pain resulted in the knee bearing more vector and weight, causing advanced degeneration and instability of the meniscus and ligaments, as evidenced by the Veteran's multiple meniscal tears and the surgeries to repair them. Dr. N. E. went on to state that severe osteoarthritis was uncommon for someone in their 40's, unless there were increased vector forces such as injuries from blunt force trauma. A review of the claims file also shows a letter from Dr. G. H., submitted in May 2019. While Dr. G. H. gave a detailed account of the Veteran's bilateral knee symptoms, no opinion was offered as to whether the conditions were related to service. Here, the Board concludes that the evidence of record is sufficient to establish that the Veteran's bilateral knee disability is related to his August 1986 in-service injury. The July 2020 medical opinion from Dr. N. E. is the most probative evidence of record, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, there is no medical opinion of record to refute Dr. N. E.'s findings. Based on the foregoing, service connection is warranted for the Veteran's right and left knee disabilities. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. As to the Veteran's bilateral hearing loss and tinnitus, he contends that the conditions are related to noise exposure during active service. Due to the Veteran's military occupation as a plumbing specialist, his exposure to hazardous noise has been conceded. The Veteran was afforded a VA examination in July 2011. The examiner concluded that the Veteran's hearing loss and tinnitus were less likely than not related to active service. The examiner noted that the Veteran had a moderately-severe loss at 4000hz in the right ear and normal hearing in the left ear, and that his in-service audiograms showed improvement in the left ear with slight threshold shifts. The examiner indicated that at separation, the Veteran's hearing loss at 4000hz was 15 decibels better that at the time of his enlistment. As to his tinnitus, the examiner indicated that the Veteran did not know when the condition had its onset and that his STRs were silent for the condition. A review of the Veteran's March 1981 entrance examination shows some degree of hearing loss in the left ear at 500, 1000, 2000, and 4000hz. Likewise, the examination shows some degree of hearing loss in the right ear at all thresholds. Additionally, a significant threshold shift was noted between audiograms conducted in November 1983 and October 1986. Accordingly, the Board finds that the July 2011 opinion is based on an inaccurate factual premise and a new VA examination should be obtained on remand. Additionally, the March 1981 audiometric findings put into question whether the Veteran's hearing loss preexisted active service. Generally, a veteran is presumed to be in sound condition except for conditions noted when examined and accepted for service. Where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to rebut the presumption by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F3d. at 1345; Horn v. Shinseki, 25 Vet. App. at 234; 38 U.S.C. § 1111. This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. at 234. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Here, as the March 1981 audiometric findings show some degree of hearing loss at service entrance, the examiner must also address whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had a hearing loss disability that pre-existed active service, and if so, whether it is clear and unmistakable that the condition was not aggravated during active service. 3. Entitlement to service connection for a low spine disability, to include as secondary to service-connected left and right knee disabilities is remanded. The Veteran contends that his low spine disability is caused or aggravated by his now service-connected bilateral knee disability. Considering there has not been an examination provided as to the Veteran's low spine disability, and in light of the grant of service connection for a right and left knee disability herein, a VA examination is warranted to determine the nature and etiology of the Veteran's low back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: a.) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any hearing loss disability pre-existed active service. b.) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing hearing loss disability WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. c.) If it did not preexist service, the examiner must opine as to whether any current hearing loss disability at least as likely as not (50 percent probability or greater) began in or is otherwise related to active service. d.) Whether any current tinnitus at least as likely as not (50 percent probability or greater) began in or is otherwise related to active service. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his low spine disability. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: a. Whether it is at least as likely as not (50% or greater probability) that the Veteran's low spine disability had its onset in service or is related to an event, injury or disease incurred in service. b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low spine disability was caused by his service-connected left and right knee disabilities, to include any related surgical procedures. c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low spine disability was aggravated (worsened beyond normal progression) by his service-connected left and right knee disabilities, to include any related surgical procedures. The examiner is reminded that causation and aggravation are separate inquiries, and therefore, separate findings and rationales should be provided for each one. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.