Citation Nr: 21074348 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-13 200 DATE: December 15, 2021 ORDER Whether new and material evidence has been submitted to reopen service connection for diverticulitis is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for diverticulitis, also referred to as stomach condition, is remanded. Entitlement to a compensable rating for right knee surgical scars is remanded. Entitlement to an increased rating in excess of 20 percent for right knee disability is remanded. FINDINGS OF FACT 1. The September 2015 rating decision, which denied service connection for diverticulitis, became final, as the Veteran did not perfect an appeal of the decision or submit new and material evidence within a year of the rating decision. 2. Since the September 2015 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran's claim for service connection for diverticulitis, or a stomach condition. 3. The probative evidence of record does not show the Veteran suffers from bilateral hearing loss for VA compensation purposes. 4. The probative evidence of record does not show the Veteran's tinnitus is related to his active-duty service. CONCLUSIONS OF LAW 1. The September 2015 rating decision denying service connection for diverticulitis became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103 2. New and material evidence has been received to reopen service connection for diverticulitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1131, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1983 to March 1986. In July 2021, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the hearing is of record. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for diverticulitis. The claim was previously denied in a September 2015 rating decision due to there being no evidence of the condition being related to his active-duty service. The rating decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has been provided a VA examination and submitted additional medical records. The Board finds this evidence is new, as it has not been part of the record before, and material, as it pertains to a factor in possibly substantiating the claim for service connection, specifically, whether his disability is related to his active-duty service, to include his service-connected right knee disability. Therefore, the evidence is to be considered new and material, and the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b). 1. Entitlement to Service Connection: Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his active-duty service. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Here, the medical evidence does not reflect the Veteran has a bilateral hearing loss disability. In April 2017, the Veteran received a VA examination. On this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 15 10 20 25 LEFT EAR 15 15 15 25 35 In addition, speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The examiner did diagnose the Veteran with hearing loss in frequencies 6000 hertz (Hz) or higher in the right ear, and hearing loss in the 500-4000 Hz in the left ear. In February 2019, the Veteran received another VA examination. On this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 10 15 15 5 10 LEFT EAR 10 5 5 5 15 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 100 percent in the left ear. The examiner then diagnosed the Veteran with normal hearing in both ears. The Board notes that while the April 2017 examiner diagnosed the Veteran with sensorineural hearing loss, the audiological testing still showed the Veteran did not meet the criteria for hearing loss for VA purposes. The Veteran did not have an auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz of 40 decibels or greater; or auditory threshold for at least three of the frequencies of 26 decibels or greater; or a speech recognition score of less than 94 percent. See 38 C.F.R. § 3.385. Further, the examiner also noted the Veteran's examination did not show ratable hearing loss. The Veteran has provided no other records that show he currently suffers from bilateral hearing loss for VA purposes. The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had a hearing loss disability as defined by 38 C.F.R. § 3.385 or otherwise, at any time during the pendency of this case. Therefore, because the Veteran does not currently have a bilateral hearing loss disability, service connection must be denied. 2. Entitlement to Service Connection: Tinnitus The Veteran contends that his tinnitus is related to his active-duty service. The Board acknowledges that the Veteran has a current diagnosis of tinnitus and that he was exposed to noise in service, as his records show he was an artillery and missile crewmember. Thus, the issue turns upon whether there is evidence of an in-service disease or injury, and whether there is a nexus between the claimed in-service disease or injury and the present. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In April 2017, the Veteran was provided a VA examination. The examiner noted that the Veteran did not report any recurrent tinnitus. In February 2019, the Veteran attended another hearing examination. The Veteran did report having a constant bilateral low hum that occasionally gets louder after loud noises. He stated that the louder periods occur four to five times a week and last a few minutes. He provided that the onset was from 1985 when he participated in live-fire demonstration with his missile crew. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner rationalized that while tinnitus may be caused by many different conditions or agents, the occurrence of noise-induced tinnitus in the absence of noise-induced hearing loss is not supported by medical research. The examiner further stated that the Veteran's December 1985 audiogram showed his hearing to be well within normal limits for both ears with no clinically significant threshold shift during active duty. The Board notes that VA treatment records do not show any complaints specifically for tinnitus or ringing in the ears prior to 2017, and no issues with his ears until 2011. Further, VA treatment records show in March 2011 that the Veteran reported hearing loss with an underwater sensation in both ears and itching, which he stated began only six months prior. The Veteran further reported during the March 2011 visit he had no history of ear problems, ear surgery, ear infections, or otorrhea or ear pain. Accordingly, the Board finds the February 2019 VA opinion to be highly probative in finding the Veteran's tinnitus is not related to his active-duty service. The Board notes that the examiner was an audiologist who possesses the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale for the opinion rendered. The conclusion was based on an evaluation of the Veteran, consideration of the Veteran's lay statements, and a review of the Veteran's claims folder. The Board also acknowledges the Veteran's assertions that his tinnitus is due to in-service noise exposure. However, the Veteran's statements that he has had tinnitus continuously since service are inconsistent with what he reported during his April 2017 VA examination and during a March 2011 VA medical center visit, and therefore the Board assigns low probative weight to them. Thus, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to Service Connection: Diverticulitis The Veteran contends that his stomach condition, to include diverticulitis, is related to his active service, to include as secondary to service-connected disabilities. In July 2021, the Veteran was provided a hearing. The Veteran contended that he believes the medications he takes for his right knee, to include Tylenol, steroid injections, and hydrocodone are aggravating or causing his diverticulitis. The Board acknowledges a September 2015 examiner opined the Veteran's condition was not proximately due to his arthroscopic surgery or steroids, as well as a February 2019 examiner opined that his diverticulitis was not caused or aggravated by hydrocodone. However, the September 2015 examiner did not provide an aggravation opinion nor was an actual rationale provided for the opinion rendered. Similarly, the February 2019 examiner also did not provide an actual rationale explaining why the Veteran's diverticulitis was not caused or aggravated by hydrocodone. Moreover, the Veteran has provided a medical article suggesting a link between those who take NSAIDS, to include ibuprofen and naproxen, steroids, and opiates like hydrocodone, and diverticulitis. The Board notes that the Veteran's records show he has been taking ibuprofen and hydrocodone for his right knee pain. Therefore, the Board finds that a remand is required in order to obtain a new opinion on the etiology of the claimed condition that considers all of the above. 2. Entitlement to an Increased Rating: Right Knee Disability and Right Knee Surgical Scars The Veteran contends that his service-connected right knee disability and right knee scars warrant higher ratings. In July 2021, the Veteran was provided a hearing. The Veteran contended that he had additional right knee related surgical scars than what was noted in previous examinations. He also stated that in his May 2017 and September 2019 VA examinations, the examiners noted the Veteran did not have unstable or painful scars; however, he reported that his 12-inch scar that is located on his right thigh to his knee is sensitive and the sensitivity has spread some. He also reported pain. Regarding the Veteran's right knee disability, the Veteran reported an increase in pain since his last examinations. He also stated he suffers from instability. Therefore, due to the Veteran reporting worsening symptoms, the Board finds a remand is required in order to obtain new VA examinations to determine the current severity of the Veteran's conditions. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records relevant to the Veteran's claims. 2. After all outstanding records have been associated with the claims file, send the file to an appropriate examiner to determine the etiology of the Veteran's diverticulitis. If the examiner finds said opinion cannot be provided without examination of the Veteran, then such examination should be scheduled. The record and a copy of this Remand must be made available to the examiner. Following review of the entire record, to include the Veteran's competent lay statements, as well as the Veteran's documented reports regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's diverticulitis or any other stomach condition are due to his right knee disability, to include steroid injections and the consistent taking of medications such as ibuprofen, Tylenol, and hydrocodone? In rendering the opinion, please consider the article "Diverticulosis/diverticulitis: Fiction and Nonfiction" dated June 1, 2019 submitted by the Veteran. (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's diverticulitis or any other stomach condition are aggravated by his right knee disability, to include steroid injections and the consistent taking of medications such as ibuprofen, Tylenol, and hydrocodone? "Aggravation" is defined as any worsening beyond the natural progression of the disability. In rendering the opinion, please consider the article "Diverticulosis/diverticulitis: Fiction and Nonfiction" dated June 1, 2019 submitted by the Veteran in the opinion. (c) If the Veteran's condition is NOT related to his service-connected disability, it at least as likely as not (50 percent probability or more) that the Veteran's stomach condition is related to his active-duty service? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of the Veteran's right knee disability. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, Diagnostic Codes 5256-5262, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should further determine whether any right knee disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran for each disability. The examiner should also determine whether the Veteran's additional impairment on flare-ups or repetitive use is the functional equivalent of ankylosis of the knee and leg. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his post-surgical right knee and thigh scars. The record and a copy of this Remand must be made available to the examiner. The examiner should identify any findings related to the Veteran's right lateral buttock and right medial knee scars, as well as his right lateral knee scar. The examiner should also discuss all findings in terms of the Schedule of Ratings, Diagnostic Codes 7802- 7805 for Scars, noting if the scars are stable or unstable, deep or superficial, and linear or non-linear, as well as if any pain is present or reported. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J Negron, 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.