Citation Nr: 21067615 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-04 711A DATE: November 4, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for degenerative arthritis of the spine, intervertebral disc syndrome, scoliosis, and right sciatic radiculopathy is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right foot bunions is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A November 1995 rating decision denied service connection for a right knee disability. The Veteran did not appeal this decision, and new and material evidence was not received within a year of its issuance. 2. Since the November 1995 rating decision, the Veteran has submitted additional evidence that raises a reasonable possibility of substantiating his claim for entitlement to service connection for a right knee disability. 3. The evidence is at least in equipoise as to whether tinnitus began during active service. CONCLUSIONS OF LAW 1. The November 1995 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received since the November 1995 rating decision is new and material. Therefore, the criteria to reopen the claim of service connection for a right knee disability is met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in July 2021. A transcript of the hearing is associated with the Veteran's claims folder. 1. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability is granted. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 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. 38 C.F.R. § 3.156(a). 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 credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were 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. The issue of entitlement to service connection for a right knee disability was last denied in a November 1995 rating decision on the basis that there was insufficient evidence to warrant a diagnosis of a chronic disability of the right knee. The Veteran did not appeal the November 1995 rating decision and no new and material evidence was received within a year of the decision. Since that time, the Veteran has provided private treatment records which indicate that he has a current diagnosis of right knee medial compartment osteoarthritis. (6/18/2021, Medical Treatment Record, p. 9, 19). This evidence is "new," because it was not submitted to the AOJ prior to the November 1995 rating decision, and the evidence is "material," as it relates to the unestablished element of whether the Veteran has a current diagnosis of a right knee disability. As such, the claim of entitlement to service connection for a right knee disability is reopened. 2. Entitlement to service connection for tinnitus. The Veteran asserts that he is entitled to service connection for tinnitus. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. The Veteran has a current diagnosis of tinnitus as evidenced by a March 2016 VA examination. (3/28/2016, C&P Exam, p. 7). During a July 2021 Board hearing, the Veteran testified that he began experiencing tinnitus in 1989 or 1990. (7/8/2021, Hearing Transcript, p. 22). Generally, competent medical evidence is required to establish the presence of a current disability. However, lay evidence can be sufficient to establish the presence of a current disability where the disability is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tinnitus is "a noise in the ears, such as ringing, buzzing, roaring, or clicking," and is subjective in nature. See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As tinnitus is considered subjective, VA has determined that it is a disorder that can be identified through lay observation. See Charles v. Principi, 16 Vet. App. (2002). Meaning that, unlike hearing loss which requires objective medical evidence to establish, the presence of tinnitus can be established by lay evidence alone. As such, the Board finds that the Veteran is competent to report that tinnitus manifested in 1989. The Board must now determine if the Veteran's lay statement is credible. In this regard, the RO conceded in-service hazardous noise exposure. Further, there is no substantive evidence of record indicating that the Veteran denied tinnitus during service. In reaching this conclusion, the Board acknowledges that the Veteran's service treatment records do not contain evidence of complaints or a diagnosis of tinnitus during service. However, the last in-service audiogram of record was conducted in 1984, less than two years after he entered service, and his separation examination is not of record. As the Board may not consider the absence of evidence as substantive negative evidence, the Board finds that there is no objective medical evidence of record regarding whether tinnitus manifested after 1984. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Since the Veteran provided lay evidence indicating that he developed tinnitus in 1989, and there is no objective evidence regarding tinnitus for the period following 1984, the Board finds that there is no substantive evidence of record which contradicts the Veteran's lay testimony. Therefore, the Board finds that the Veteran's statement is credible. As the Veteran's lay statement is competent and credible, the Board finds that his statements are sufficient to establish that he experienced tinnitus beginning in 1989. Further, as tinnitus is a chronic disease, and it was diagnosed within a year of the Veteran's discharge from active duty, the Board will presume that tinnitus is related to service. The Board acknowledges the March 2016 VA examiner's opinion that tinnitus is less likely than not caused by or a result of the Veteran's military service. (3/28/2016, C&P Exam, p. 7). In this instance, the Board assigns little probative value to the examiner's opinion, as the examiner did not consider the lay evidence provided by the Veteran during the July 2021 Board hearing. In sum, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's tinnitus is the result of military service. In this regard, as tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection based solely on continuity of symptomatology is permissible. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the spine, intervertebral disc syndrome, scoliosis, and right sciatic radiculopathy is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts that his current back disabilities are related to falling off a truck during his period of active-duty service. (3/30/2016, C&P Exam, p. 1). The Board notes that the Veteran is currently diagnosed with arthritis of the spine, intervertebral disc syndrome, scoliosis, and right sciatic radiculopathy. His October 1982 entrance examination notes a diagnosis of scoliosis. (1/13/2016, STR, p. 17). Service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. See 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). To date, there has been no opinion specifying whether the Veteran's scoliosis is a congenital defect or a disease and, if a congenital disease, whether it was aggravated by service. Additionally, no opinion regarding whether his current diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, and right sciatic radiculopathy constitute a superimposed injury or disease has been rendered. As such, the claim must be remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for right foot bunions is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In an April 2016 rating decision, the RO indicated that service connection was not warranted for the Veteran's claimed bilateral knee and right foot bunions disabilities because he does not have clinically diagnosed disabilities consistent with his claims. However, the Veteran's medical treatment records indicate that he has a current diagnosis of right knee medial compartment osteoarthritis and right foot bunions. (6/18/2021, Medical Treatment Record, p. 9, 19). Further, during a July 2021 Board hearing, he indicated that he underwent a left meniscus removal. (7/8/2021, Hearing Transcript, p. 12). During a July 2021 Board hearing, the Veteran indicated that he hurt his knees after falling off a truck in 1985 or 1986. He further testified that his bunions were caused by wearing boots that were the wrong size during basic training. (7/8/2021, Hearing Transcript, p. 10, 15). Given that the Veteran has presented competent evidence of current diagnoses of bilateral knee and right foot bunions disabilities, and there is an indication that these disabilities may be associated with the Veteran's service, the Board finds that VA's duty to assist by providing a VA examination has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, the Board finds that the claims must be remanded for VA examinations. 5. Entitlement to service connection for bilateral hearing loss is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA hearing loss and tinnitus examination in March 2016, wherein hearing loss in accordance with 38 C.F.R. § 3.385 was noted in the left ear. In rendering an opinion on the etiology of the Veteran's left ear hearing loss, the examiner opined that the disability was not caused by or a result of an event in the Veteran's military service. The examiner indicated that a permanent positive threshold shift greater than normal measurement variability was not noted during the Veteran's service. Further, the examiner indicated that the evidence "clearly and convincingly shows the veteran did not have hearing injury while in service." (3/28/2016, C&P Exam, p. 4). The Board finds that the March 2016 examination is inadequate for evaluation purposes as the examiner made a factual finding that is not supported by the substantive evidence of record. As discussed in the Board's analysis of entitlement to service connection for tinnitus, the absence of evidence is not substantive negative evidence unless silence in the record tends to disprove the Veteran's assertion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In this case, the examiner concluded that the Veteran did not have a hearing injury during service based on the Veteran's entrance examination and a 1984 audiogram, which occurred less than two years after his entrance into the military. The examiner disregards the fact that he served an additional 5 years after the 1984 audiogram and does not acknowledge that his separation examination is not of record. As there is no audiometric data of record after 1984, the Board finds that the examiner's conclusion that evidence "clearly and convincingly shows the veteran did not have hearing injury while in service," is not supported by the substantive evidence of record. The examiner essentially concludes that because there is no substantive audiometric data between 1984 and 1989, that the Veteran "clearly and convincingly" did not have a hearing injury in service. However, the Board finds that the lack of audiometric data during this period does not tend to disprove the Veteran's assertions as it is highly likely that the Veteran did undergo hearing examinations during this period (such as a hearing examination at separation), but these examinations are missing from the record through no fault of the Veteran's. To find that these examinations would "clearly and convincingly" prove that the Veteran did not have a hearing injury during service, as the March 2016 examiner did, is purely speculative. As such, the claim must be remanded for further medical development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his back disabilities. The examiner must review the claims file and provide a response to the following: (a.) Is the Veteran's scoliosis a congenital defect or disease? (Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990).) (b.) If scoliosis is a congenital disease, is it clear and unmistakable that the disability preexisted the Veteran's military service? If so, is it also clear and unmistakable that the preexisting scoliosis was not aggravated (i.e., permanently worsened) during the Veteran's military service? (c.) If scoliosis is a congenital defect, is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in an additional disability? 2. Schedule the Veteran for a VA examination for his bilateral knee disabilities. The examiner must review the claims file and provide a response to the following: Are the Veteran's bilateral knee disabilities at least as likely as not related to service, including falling off a truck? 3. Schedule the Veteran for a VA examination for his right foot bunions. The examiner must review the claims file and provide a response to the following: Are the Veteran's right foot bunions at least as likely as not related to service, including wearing the wrong size of boots during basic training? 4. Schedule the Veteran for a VA examination for hearing loss. The examiner must review the claims file and provide a response to the following: Is the Veteran's hearing loss at least as likely as not related to service? In rendering an opinion, the examiner must assume that the Veteran was exposed to hazardous noise levels. The examiner is reminded that nothing in the regulatory or statutory provisions require both medical and competent lay evidence, and that competent lay evidence can be sufficient in and of itself to substantiate a disability claim. Bearing this in mind, the examiner should consider the Veteran's lay statements that he first noticed issues with his hearing in 1988. Likewise, the examiner is reminded that they may not treat the absence of evidence as substantive negative evidence. Specific to this case, the examiner may not treat the absence of audiometric data following the Veteran's 1984 hearing test as evidence that he did not have a hearing injury during service. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.