Citation Nr: 21013299 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-31 966 DATE: March 9, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a bilateral knee disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a lumbar spine disability is reopened. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. Evidence received since the December 1991 rating decision is new and material regarding the issue of service connection for a bilateral knee disability and a lumbar spine disability. 2. Tinnitus originally manifested during service. CONCLUSIONS OF LAW 1. The December 1991 rating decision that denied the service connection for a bilateral knee disability and a lumbar spine disability is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1104. 2. The criteria for reopening the Veteran's previously denied claim of service connection for a bilateral knee disability and a lumbar spine disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1987 to August 1990 and February 2, 1991 to February 25, 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript was available for review. 1. New and Material Evidence. The Veteran seeks to reopen the previously denied claims for service connection for a bilateral knee disability and a lumbar spine disability. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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, 510 - 513 (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). The Veteran seeks to reopen the previously denied claims for service connection for a bilateral knee disability and a lumbar spine disability. The claims were initially considered and denied by the RO in a December 1991 rating decision. The Veteran did not initiate appeal of the decision denying service connection, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed to reopen the claims for service connection for a bilateral knee disability, and a lumbar spine disability in February 2015. The claims were subsequently considered and denied in a September 2015 rating decision. Since the December 1991 rating decision, additional evidence has been received in the form of private correspondence from treating physicians and testimony from Veteran. The private correspondence from treating physicians and testimony from Veteran are new because they have not been previously submitted. The newly submitted evidence is also material because it pertains to the basis for the prior denials, that is, that the Veteran's bilateral knee disability and a lumbar spine disability were not caused or aggravated by military service and raises a reasonable possibility of substantiating the claim. The Veteran has provided testimony of an in-service injury regarding the knee and back disabilities and there are service treatment records documenting treatment for both disabilities. For these reasons, the Board finds that new and material evidence has been received to reopen the claims for service connection for a bilateral knee disability and a lumbar spine disability. See 38 C.F.R. § 3.156(a). This new evidence raises a reasonable possibility of substantiating the claims; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claims for service connection for a bilateral knee disability and a lumbar spine disability. 2. Service Connection for Tinnitus. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). An August 2015 VA examiner diagnosed the Veteran with tinnitus. Thus, the he has a current disability. Next, the Veteran's service treatment records are silent for any reports of, or treatment for, tinnitus. The Veteran underwent a VA examination to determine the etiology of the tinnitus in August 2015. The VA examiner diagnosed the Veteran with tinnitus but opined that it was less likely than not caused by his military service. The rationale provided was that the Veteran did not have hearing loss at service separation and it would require speculation to opine that tinnitus could be caused by noise without the presence of hearing loss. During his December 2020 Board hearing, the Veteran reported that he first experienced tinnitus during service. Specifically, he indicated that he noticed ringing in his ears during service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current tinnitus. However, the competent evidence as to the etiology of the Veteran's tinnitus is in conflict. While the VA examination report concluded that the Veteran's tinnitus was not related to service, the Veteran has explained that the tinnitus actually began during service as a result of noise exposure. Further, the Board places less probative weight on the VA opinion because it failed to adequately address the Veteran's report that tinnitus began during service. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The Remaining Claims are Remanded. The Veteran contends that the current sinusitis and bilateral knee and back disabilities were incurred during his active service. Further development is needed for all of these claims. Specifically, the Veteran claims that he began to experience the symptoms of sinusitis during service while refueling a gas tank. A VA examination has not yet been performed. Regarding the knee and back disabilities, service treatment records document complaints and treatment for both. The Veteran further reported a fall during his February 1991 activation where he fell down stairs and reinjured the knees and hurt his back. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been afforded VA examinations for the claimed sinusitis, bilateral knee, and back disabilities. As such, remand for VA examinations is necessary. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any of the claimed disabilities. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claims. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate any VA treatment records with the electronic claims file. 3. After completion of the above-specified development. Schedule the Veteran for an examination to determine the etiology of any sinus disability. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any current sinus disability had onset in service, is etiologically directly related to his active service? The VA examiner must comment on the Veteran’s reports of in-service symptoms during refueling duties and the January 2021 letter from Dr. K.M.. 4. Schedule the Veteran for an examination to determine the etiology of any left or right knee disabilities. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any current left or right knee disabilities had their onset in service, are etiologically related to active service, or if arthritis is present, had their onset within one year of separation from service? The VA examiner must comment on: 1. The Veteran’s complaints and in-service treatment for the left knee 2. The Veteran’s reports of reinjuring the knee after a fall during his period of service in February 1991. 3. The Veteran’s reports of continuous knee pain since service. 4. The October 2016, April 2020, January 2021 letter from Dr. K.M. 5. Schedule the Veteran for an examination to determine the etiology of any current back disability. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any current back disability had onset in service, is etiologically directly related to active service, or if arthritis is present, had its onset within one year of separation from service? The VA examiner must comment on: 1. The March 1988 back injury. 2. The April 1988 treatment for a back injury. 3. The February 1991 Physical Profile the Veteran was placed on for the lumbar spine. 4. The October 2016, April 2020, and January 2021 letters from Dr. K.M. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.