Citation Nr: 21072466 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-09 328 DATE: December 3, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left knee disability, to include as secondary to bilateral pes planus, is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right knee disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 24, 2020, is remanded. FINDINGS OF FACT 1. A July 2010 rating decision denied service connection for tinnitus; the Veteran did not initiate an appeal and new and material evidence was not received within one year of the notice of that decision. 2. Additional evidence received since the final July 2010 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. 3. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within an applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The July 2010 rating decision, which denied the claim of entitlement for service connection for tinnitus, is final. 38 U.S.C. § 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 tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 June 1969 to January 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 decision, the Board denied the claim for an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). The Board remanded the claim for service connection for bilateral foot condition and petitions to reopen the claims for service connection for bilateral knee disability and tinnitus for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The Board also found that entitlement to TDIU had been raised by the record in association with the claim for an increased rating for PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the claim finding that it was inextricably intertwined with the claims for service connection. During the pendency of the appeal, an April 2020 rating decision granted entitlement to TDIU, effective April 24, 2020. As this grant does not represent a total grant of benefits sought on appeal, the claim for entitlement to TDIU, prior to April 24, 2020, remains before the Board. In August 2021, the Veteran and his representative were notified of the date and time of the Board virtual tele-hearing the Veteran requested in connection with the present appeal. He did not appear for the scheduled hearing, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction (AOJ), the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review 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. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. The claim for service connection for tinnitus was denied in a November 2007 rating decision, on the basis that the Veteran's service treatment records (STRs) were silent as to any complaints of tinnitus during service and a June 2007 VA medical opinion concluded that his tinnitus was less likely than not related to in-service noise trauma. In March 2010, the Veteran filed a petition to reopen the claim. A July 2010 rating decision denied reopening the claim for service connection for tinnitus, finding that new and material evidence had not been submitted. The Veteran did not appeal the July 2010 rating decision, and the RO did not receive new and material evidence within one year of the issuance of the rating decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the July 2010 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a petition to reopen the claim in March 2013. The Board finds that there is a sufficient evidentiary basis to reopen the claim of service connection for tinnitus. New evidence received since the last final denial in July 2010 includes a December 2014 VA examination and VA treatment records as well as a statement from the Veteran, dated April 2015, noting that his tinnitus began during service. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, Board finds that the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Board is cognizant that the RO stated in the September 2019 SOC that new and material evidence had not been received and denied reopening the claim. After careful review, the Board notes that the September 2019 SOC and April 2020 supplemental statement of the case (SSOC) considered the evidence of record as it relates to this case on the merits. Accordingly, the Board finds no prejudice in addressing the merits of this appeal considering this evidence and procedural history. Service Connection Entitlement to service connection for tinnitus is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 133537 (Fed. Cir. 2013). Tinnitus is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if tinnitus is noted or shown in the record. Walker, 708 F.3d at 133839; see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Service connection for an enumerated "chronic disease" such as tinnitus, listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The medical evidence shows that the Veteran has a current diagnosis of tinnitus. Thus, the question before the Board is whether the Veteran's tinnitus is related to his military service. The Board acknowledges that the Veteran is service connected for a bilateral hearing loss disability and concedes that he was exposed to in-service acoustic trauma. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnoses related to tinnitus. His post-service treatment records are similarly silent for any evidence relating his tinnitus to service. The Veteran was afforded a VA examination in June 2007, in which he reported that his tinnitus had a gradual onset in approximately 1997. The examiner opined that the Veteran's tinnitus was less likely than not etiologically related to service as he reported that his tinnitus began in 1997. During the December 2014 VA examination, the Veteran reported that he first noticed intermittent tinnitus, approximately 15 years prior. The examiner opined that the Veteran's tinnitus was less likely than not etiologically related to service. The examiner reasoned that tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident, and the Veteran reported that his tinnitus began many years after service. Thereafter, in a statement, dated April 2015, the Veteran reported that he did not understand the VA examiners' questions concerning first onset of tinnitus and that he experienced tinnitus during service and has continued to experience it since separation from service. After a review of the evidence of record, the Board finds that entitlement to service connection for tinnitus is not warranted. In this regard, the Board notes that tinnitus is a condition related to subjective complaints of ringing and buzzing sounds in one's ear. Therefore, the Veteran is competent to report his tinnitus because the symptoms of tinnitus are readily observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a review of the record shows that the Veteran has provided conflicting lay statements as to the onset of his tinnitus. In November 2006, the Veteran denied having ringing in his ears. See November 2006 VA treatment records. During the June 2007 VA examination, the Veteran reported that his tinnitus began in 1997. In his October 2014 VA examination, the Veteran reported that his tinnitus began approximately 15 years prior, which would place the onset of his symptoms in the late-1990s. In April 2015, the Veteran reported that his tinnitus began during service. Given the conflicting statements as to the onset of his symptoms, the Board finds the Veteran to be an inaccurate historian as to when his tinnitus symptoms began. Therefore, the Board finds the December 2014 VA examination report to be the most probative evidence of record. After a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran's tinnitus was etiologically related to in-service noise exposure. The examiner relied upon the lay statements provided by the Veteran at the time of the examination, which placed the onset of the condition approximately 30 years following separation from service, which was found to be too great a time frame to etiologically relate his tinnitus to service. In sum, although the Veteran has established a current disability, the preponderance of the evidence establishes that his bilateral tinnitus did not manifest during service or within one year following separation from service. There is no persuasive evidence that the Veteran's tinnitus is otherwise related to his service. 38 U.S.C. § 5103A(d). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral pes planus is remanded. The Veteran's VA and private treatment records note a diagnosis of severe pes planus. See VA treatment records dated May 24, 2001, September 14, 2007, and July 23, 2015; private treatment record dated October 12, 2010. An April 1969 pre-induction examination noted abnormal feet and a diagnosis of pes planus. As such, the presumption of soundness does not apply because his bilateral pes planus was noted at entry into active duty service. Therefore, the primary issue is whether the pre-existing bilateral pes planus was aggravated by such service and in this regard the presumption of aggravation must be considered. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To date, the Veteran has not been afforded a VA examination regarding his bilateral pes planus and the Board finds that the low threshold standard established has been surpassed to obtain an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, remand is warranted in order to obtain a VA examination and medical opinion as to whether the Veteran's pre-existing pes planus was aggravated by active service. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee disability is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left knee disability is remanded. The Veteran's VA treatment records indicate that he underwent a right total knee replacement in October 2012 and a left total knee replacement in March 2013. The evidence of record reveals that the Veteran's bilateral knee disability may be secondary to his bilateral pes planus. Specifically, a November 2012 VA treatment note indicates that the Veteran's severe pes planus with accompanying deformities contributes to his knee mechanics. Thus, as the decision on the remanded issue of service connection for pes planus could significantly impact a decision on these claims, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, consideration of these claims must be deferred pending resolution of the Veteran's claim for service connection for bilateral pes planus. Entitlement to TDIU prior to April 24, 2020, is remanded. The evidence of record indicates that the outcome of the claim for service connection for bilateral knee disability may have a direct impact on the issue of entitlement to TDIU, prior to April 24, 2020. Therefore, as the claim for TDIU is inextricably intertwined with the claims for service connection, consideration of the claim for TDIU must be deferred. Id. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any bilateral pes planus. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. Following a review of the claims file, the examiner is asked to opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's pre-existing bilateral pes planus was aggravated during service? Please explain why or why not. b) If so, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that this increase in disability was due to the natural progression of the condition? Please explain why or why not. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. (Continued on next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for a right and left knee disability and entitlement to TDIU prior to April 24, 2020. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.