Citation Nr: 21006755 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-39 487 DATE: February 5, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral hamstring disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral knee disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral ankle disability is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thyroid disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension is remanded. Entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicides, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to IHD, is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hamstring disability is remanded. Entitlement to service connection for a left hamstring disability 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 a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a May 2009 rating decision, the Veteran was denied left knee osteoarthritis, right knee osteoarthritis, a bilateral hamstring disability, and bilateral ankle osteoarthritis. 2. The Veteran filed a timely notice of disagreement with the May 2009 rating decision, was issues a statement of the case in response to that notice of disagreement in April 2011, and filed a timely substantive appeal in April 2011; however, the Veteran withdrew his appeal in a May 2011 statement. As such, the May 2009 rating decision is final. 3. The evidence received since the May 2009 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, and relates to an unestablished fact necessary to establish the claims of entitlement to service connection for right and left hamstring disabilities, right and left knee disabilities, and right and left ankle disabilities. 4. Bilateral hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for a bilateral hamstring disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received, and the claim of entitlement to service connection for a bilateral knee disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been received, and the claim of entitlement to service connection for a bilateral ankle disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 4. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from December 1974 to March 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the VA Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned Veterans’ Law Judge. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in September 2019, at which time the issues on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Claims to Reopen In a May 2009 rating decision, the RO denied entitlement to service connection for a bilateral hamstring disability, bilateral knee osteoarthritis, and bilateral ankle osteoarthritis. The Veteran withdrew his appeal in May 2011. The evidence that has been received since the May 2009 rating decision includes post-service medical records, a September 2016 representative statement, an October 2020 appellate brief, and the Veteran’s hearing testimony and lay statements. Specifically, the Veteran asserted that he injured his back, neck, ankles, and knees after falling in a bilge bin during service in or around June 1975. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a bilateral hamstring, bilateral ankle, and bilateral knee disabilities. Therefore, reopening of the claims is warranted. Service Connection – Bilateral Hearing Loss and Tinnitus The Veteran has contended that his bilateral hearing loss disability is related to his in-service noise exposure. Specifically, he reported that he was exposed to jet engine, helicopter, and weaponry noise while serving as a seaman aboard the U.S.S. Iwo Jima (LPH-2). The Board finds that hazardous noise exposure is consistent with the facts and circumstances of the Veteran’s service. As such, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of a bilateral hearing loss disability or tinnitus. At the time of his March 1976 separation examination, his hearing acuity was tested by whisper voice testing. As a result, it cannot be determined with any certainty what the Veteran’s hearing acuity was during service, as whisper voice tests have been determined to be an unreliable testing format. Regardless, the Veteran has reported that he first experienced symptoms associated with hearing loss and tinnitus while he was in active service and that those symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In March 2013, the Veteran was afforded a VA audiological examination followed by an addendum medical opinion in May 2013. The examiner diagnosed tinnitus and bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. He opined that the Veteran’s bilateral hearing loss and tinnitus were less likely as not caused by or the result of noise exposure during service. He noted that the Veteran did not have any documented hearing problems upon discharge. He stated that remote noise exposure did not result in delayed onset hearing impairment. The Board finds that the VA medical opinion is inadequate for adjudication purposes. Specifically, the examiner relied on an invalid whisper voice testing format. Furthermore, the examiner did not consider the Veteran’s competent and credible statements regarding the in-service onset and continuity of his symptoms since service. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity and tinnitus, and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran had competently and credibly reported that he first experienced hearing loss and tinnitus while in active service, and that those symptoms have continued since that time. While there is a VA medical opinion of record against the claim, that opinion is not adequate. Furthermore, the Veteran has current diagnoses of bilateral hearing loss and tinnitus. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Claim to Reopen Service Connection Thyroid Disability In the May 2013 rating decision, the previously denied claim of entitlement to service connection for a thyroid disability was not reopened based on a finding that new and material evidence had not been received. In his June 2013 notice of disagreement, the Veteran sufficiently disagreed with the denial to reopen his claim of entitlement to service connection for a thyroid disability in conjunction with his discussion regarding his claim of entitlement to service connection for a heart disability. The Veteran was not issued a statement of the case in response to that notice of disagreement. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). 2. Claim to Reopen Service Connection Hypertension and Service Connection Claims The issues of whether to reopen a claim of entitlement to service connection for hypertension and entitlement to service connection for a neck disability, a back disability, a bilateral knee disability, a bilateral ankle disability, a bilateral hamstring disability, IHD, and sleep apnea are inextricably intertwined with the claim to reopen entitlement to service connection for a thyroid disability, remanded herein. Specifically, in May 2009, a VA physician suggested that the Veteran’s bilateral knee, bilateral ankle, and back disabilities were secondary to his thyroid disability, to include an intermediate step of obesity. Additionally, the Veteran has contended that his hypertension, IHD, and sleep apnea are secondary to his thyroid disability. Therefore, the matters are deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, the Veteran has contended that he injured his back, neck, ankles, and knees after falling in a bilge bin during service in or around June 1975. He stated that his bilateral hip and hamstring disabilities are secondary to these injuries sustained during service. As such, the Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of any currently present neck, bilateral ankle, bilateral knee, bilateral hip, and bilateral hamstring disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In February 2020, the Veteran was provided a VA examination for his back disability. Although the examiner provided a negative nexus opinion and rationale, he did not consider the Veteran’s lay assertion that he fell in a bilge bin during service. Therefore, the Board finds that the opinion inadequate for adjudication purposes, and an addendum VA medical opinion is warranted. Finally, the Board notes that the RO has not yet verified the Veteran’s exposure to herbicides while serving aboard the U.S.S. Iwo Jima. As such, the appropriate development should be completed upon remand. 3. TDIU The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the above claims remanded herein. Hence, a determination on the TDIU claim is deferred. The matters are REMANDED for the following action: 1. Issue a statement of the case on the issue of whether to reopen the claim of entitlement to service connection for a thyroid disability. Inform the Veteran of the requirements to perfect an appeal of those issues. If the Veteran perfects an appeal, return the matter to the Board. 2. Conduct the appropriate development to verify the Veteran’s reported exposure to herbicides during his active service through official sources, including the U.S. Army and Joint Service Records Research Center (JSRRC), or other appropriate repositories of such information. All development efforts must be clearly documented in the claims file. 3. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 4. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present back disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should determine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s back disability is etiologically related to his active service. The examiner should address the Veteran’s lay assertions of record, to specifically include his statement that he injured himself after falling into a bilge bin in or around June 1975. A detailed rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present neck, bilateral ankle, bilateral knee, bilateral hip, and bilateral hamstring disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should determine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s neck, bilateral ankle, bilateral knee, bilateral hip, and bilateral hamstring disabilities, is etiologically related to his active service. The examiner should address the Veteran’s lay assertions of record, to specifically include his statement that he injured himself after falling into a bilge bin in or around June 1975. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bilateral hip and/or bilateral hamstring disabilities were caused or aggravated (chronically worsened) by the Veteran’s any disabilities related to his active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present neck, bilateral ankle, bilateral knee, bilateral hip, and bilateral hamstring disabilities were caused or aggravated (chronically worsened) by the Veteran’s weight gain and that the Veteran gained weight as a result of any disabilities related to or aggravated by his active service. A detailed rationale for all opinions expressed must be provided. 6. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 7. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.