Citation Nr: 21023947 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-08 629 DATE: April 21, 2021 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon (claimed as left knee injury). Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an anxiety disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for headaches (claimed as cephalgia) is remanded. Entitlement to a compensable rating for irritable bowel syndrome, status post excision of Meckel's diverticulum is remanded. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is remanded. FINDINGS OF FACT 1. In a July 2002 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim of entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon (claimed as left knee injury). The Veteran did not appeal or submit new and material evidence within one year. 2. Evidence was received subsequent to the July 2002 rating decision that is not cumulative or redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon. 3. The evidence is at the very least in equipoise as to whether the Veteran has tinnitus related to service. 4. The evidence of record supports a finding that the Veteran’s anxiety disorder is related to service. CONCLUSIONS OF LAW 1. The July 2002 rating decision denying the Veteran’s claim for entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence has been received since the July 2002 rating decision sufficient to reopen the claim for entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus are met. 38/ U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for an anxiety disorder are met. 38/ U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to November 1979 and from November 1990 to May 1991 with periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA) in the United States Marine Corps Reserves. This matter is on appeal from a December 2013 rating decision. The Board initially notes that on his January 2014 notice of disagreement, the Veteran requested a complete copy of all compensation and pension examinations used in his decision dated December 14, 2013 (which includes the VA examinations/Disability Benefit Questionnaires for intestinal conditions, intestinal surgery, hearing loss, and tinnitus dated November 18, 2013). While there is no formal indication that the Veteran’s request was fulfilled, it is clear from the record that subsequent to this request, a complete file was available for review, and indeed reviewed by the Veteran’s representative. Indeed in a March 2016 Statement, the Veteran’s representative specifically stated that he himself completed a review of the Veteran’s claims file, up to that point, which included the above cited examinations. See the March 2016 VA Form 1-646. The representative made no indication that any examination reports were missing or otherwise unavailable for review; rather, the representative provided argument in support of the issues on appeal. Similarly, in a more recent August 2020 brief, the Veteran’s representative provided additional argument in support of the Veteran’s appeals, with reference to the record without mention of any missing examination reports. The Board also observes that the Veteran’s representative has had access to the Veteran’s complete electronic claims file through the Veterans Benefits Management System (VBMS). Therefore, given these indications in the file that the Veteran and his representative have access to, and have reviewed the Veteran’s full electronic claims file, and given that neither the Veteran nor his representative have identified any missing records or unfulfilled requests for records in more than seven years, the Board will consider the Veteran’s 2014 request satisfied. New and Material Evidence New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for left knee calcific tendinitis, infrapatellar tendon (claimed as left knee injury). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239 40 (1995). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 prior 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. The Veteran’s service-connection claim for a left knee disability was previously denied in a July 2002 rating decision. The Veteran did not appeal that decision, nor was new and material evidence received within one year. As such, the decision is final. Since his final previous denial in July 2002, the Veteran has submitted a statement from Dr. P.J.Y. in March 2013, in which Dr. P.J.Y. found that the Veteran’s left knee was more likely than not directly and causally related to a primary in-service injury to the right knee by a process of constant and chronic biomechanical compensation, adaptation, altered gait and weight shifting. Dr. P.J.Y. added that it was more likely than not the left knee condition was directly and causally related to the Veteran’s military service. The Board finds that such evidence is new, material, and serves to reopen the claim. To this extent only, the appeal is granted. Service Connection Entitlement to service connection for tinnitus is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Tinnitus may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service treatment records are silent for complaints of tinnitus symptoms during both periods of active duty service, as was the Veteran’s examination on separation from service in November 1979 (there was no examination at the time of separation of active duty service in May 1991). The Veteran’s DD Form 214 showed that he served as an Engineer Officer. On November 2013 VA hearing loss and tinnitus examination, the examiner acknowledged the Veteran’s acoustic trauma during active service, noting that the Veteran served in combat and Desert Storm/Desert Shield as an engineer officer. He also received pistol and rifle expert badges. He was provided with hearing protection sporadically. He was exposed to noises as a combat engineer, in demolition training, and providing support to the 5th Marines using demolitions. He also was a heavy equipment officer and worked in the welding shop and around loud diesels engines, bulldozers, and cranes. He used helicopters for transportation with no hearing protection at that time. He also was in the armored vehicle division for Desert Storm with heavy equipment with no hearing protection at that time either. At the November 2013 VA hearing loss and tinnitus examination, the Veteran reported that he first noticed his tinnitus five to eight years after leaving Desert Storm, although he had difficulty pinpointing an exact date. He reported that his tinnitus was always there and that it broke his concentration. Relying on the Veteran’s description of post-service onset, the examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military service. In a prior February 2013 report of consultation and examination, Dr. P.J.Y. similarly recognized that that the Veteran was exposed to acoustic trauma from demolitions and explosions during service, and reported that the Veteran suffered from progressive bilateral tinnitus. Dr. P.J.Y. opined that it was more likely than not the Veteran’s bilateral tinnitus was directly and causally related to his military service. In this case, the Board finds the evidence for and against a finding that the Veteran’s tinnitus is related to in-service noise exposure incurred during his periods of active duty service from October 1976 to November 1979 and from November 1990 to May 1991 to be in relative equipoise. Resolving all doubt in the Veteran’s favor, entitlement to service connection for tinnitus is granted. Entitlement to service connection for an anxiety disorder is granted. The Veteran contends he has an anxiety disorder that was caused by traumatic experiences and witnessed events during his deployment to a war zone during Operation Desert Shield/Storm. In a February 2013 letter, Dr. P.J.Y. noted that the Veteran had a provisional diagnosis of posttraumatic stress disorder (PTSD) that was directly related to his military service. The diagnosis was to be subsequently confirmed by an expert in in the field. Indeed at a subsequent April 2013 assessment, Dr. W.J.A. performed a thorough examination and interview, and concluded that although the Veteran specifically described on a subclinical level the reexperiencing, avoidance, and hyperarousal symptoms found in someone suffering from posttraumatic stress disorder, the diagnosis was “anxiety disorder, not otherwise specified,” and not PTSD. At the assessment, the Veteran described events that took place in a war zone during Operation Desert Shield/Storm in which saw someone that he knew being picked up by a helicopter after some kind of munition blew up on him and he died. He also described the perception or feeling of having to fight Iraqis on January 30, 1991, when he received a report of Iraqi tanks approaching his area. Dr. W.J.A. determined that the Veteran’s symptoms were based on their intensification as a result of his military service during Operation Desert Shield/Operation Desert Storm, and were as likely as not, service connected. There are no other medical opinions of record addressing the nature and etiology of the Veteran’s psychiatric disability. Based on the favorable nexus opinions above, and the Veteran’s credible reports of his in-service experience and observations while deployed in 1990 and 1991, the evidence supports a finding that the Veteran’s anxiety disorder is at least as likely as not related to his active duty service. The benefit sought on appeal is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. In February 2013, Dr. P.J.Y. diagnosed the Veteran with progressive bilateral hearing loss and indicated that it was due to the Veteran’s acoustic trauma during service. Pertinently however, at the only audiological test administered post-service in November 2013, the Veteran did not exhibit severe enough hearing loss to be characterized as a disability under the provisions of 38 C.F.R. § 3.385. Given the progressive nature of the Veteran’s hearing loss as identified by Dr. P.J.Y. coupled with the length of time since the Veteran’s last VA examination in November 2013, a new examination is necessary on remand. Entitlement to service connection for a left and right knee disorder is remanded. Service treatment records dated in April 1990 noted the Veteran’s complaints with running on pavement for three miles with an apparent injury. He had pain and swelling on the interior side of the left knee and was diagnosed with left knee strain rule out ligament injury. Another April 1990 record noted that the Veteran had a history of problems with his left knee and was diagnosed with tendonitis a year ago. He noticed pain and swelling from running. A March 1999 x-ray of the left knee revealed calcific tendonitis involving the infrapatellar tendon. A November 2001 VA treatment record reflected that the Veteran underwent knee surgery in September 2001 and a January 2012 record indicated that between 1999 and 2002, the Veteran underwent arthroscopic surgery of the bilateral knees. As such records may have some bearing on the Veteran’s claims, attempts should be made to have these records associated with the Veteran’s electronic claims file. In addition, on remand the AOJ should validate and clarify all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). In a February 2013 private report of consultation and examination, Dr. P.J.Y. noted that the Veteran suffered from multiple traumas to the right knee arising out of his engineering duties, including from jumping out from vehicles, into trenches, and/or onto uneven ground. Dr. P.J.Y. diagnosed the Veteran with bilateral posttraumatic residual degenerative joint disease and opined that it was more likely than not directly and causally related to the Veteran’s military service. Dr. P. J.Y. also opined that the Veteran’s left knee disorder was more likely than not directly and causally related to the right knee by a process of chronic and constant adaptation and biomechanical compensation for altered gait and weight shifting. Although Dr. P.J.Y. noted that the Veteran had a history of military medical attention for injuries to his right knee, which were treated by wrapping the knee, medications, and a period of rest and light duty, the Veteran’s service treatment records reflect treatment only for the Veteran’s left knee and not his right knee. Regardless, as there is the medical evidence showing current diagnoses and a possible link to service, the Board finds that he should be afforded a VA examination to determine the etiology of any right and left knee disorders. Entitlement to service connection for a thoracolumbar spine disorder, a cervical spine disorder and headaches (claimed as cephalgia) is remanded. In a February 2013 private report of consultation and examination, Dr. P.J.Y. reported that since the Veteran’s injury to his right knee and involvement with his left knee as discussed above, the Veteran developed low back pain. Dr. P.J.Y. diagnosed the Veteran with well advanced degenerative joint disease and osteoarthritis of the lumbar spine as well as degenerative joint disease and spondylosis of the cervical and cervicothoracic regions. Dr. P.J.Y. opined that these disorders were more likely than not directly and causally related to the right knee and involvement of the left knee by a process of chronic and constant adaptation and biomechanical compensation for altered gait and weight shifting. Dr. P.J.Y. also linked the Veteran’s headaches to cervical spondylosis. Given that additional evidentiary development is necessary before an informed decision can be made as to whether the Veteran’s right and left knee disabilities are related to service, adjudication of entitlement to service connection for potentially related disabilities, as they are suggested to be secondary to the knee disabilities, must be deferred. Entitlement to a compensable rating for irritable bowel syndrome, status post excision of Meckel’s diverticulum is remanded. In a February 2013 examination, Dr. P.J.Y. reported that the Veteran had ongoing symptoms of irritable bowel syndrome with intermittent constipation, diarrhea, abdominal cramping, nausea, unpredictable urgency, and near syncope. In an August 2020 Appellate Brief, the Veterans’ representative indicated that the Veterans condition has worsened, and the Veteran’s last VA examination was in November 2013, more than seven years ago. As the severity of the Veteran’s current condition remains unclear, the Board believes an updated VA examination is necessary before a decision can be made on the merits. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is remanded. The Veteran’s claim of entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities is inextricably intertwined with the claims remanded for further development. Accordingly, they must be considered together, and thus a decision by the Board on entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities would at this point be premature. The matters are REMANDED for the following action: 1. Confirm all of the Veteran’s periods of ACDUTRA and INACDUTRA service in written report. 2. Send the Veteran a letter requesting that he identify and submit all records of care pertaining to the remaining issues on appeal, to specifically include treatment records between 1999 and 2002 involving bilateral knee surgeries. The Veteran should be provided waiver forms to allow VA to obtain any identified private records on his behalf. All appropriate action should be taken to obtain the Veteran’s outstanding VA and private treatment records, if any. 3. Schedule the Veteran for an examination to assess the nature and etiology of the Veteran’s hearing loss. The claims folder, must be sent to the examiner for review. The examiner should first determine whether the Veteran has a hearing loss disability in either ear for VA purposes. If so, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such hearing loss had onset in, or is otherwise related to noise exposure incurred during his military service, as he so describes. The examiner should consider the prior November 2013 VA examiner’s observation that an October 1988 examination revealed a hearing threshold shift consistent with acoustic trauma, as well as the February 2013 opinion from Dr. P.J.Y. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right and left knee disorders. The claims folder must be sent to the examiner for review. The examiner should take a history from the Veteran as to the progression of his claimed disabilities. The examiner should: a) Identify all current right and left knee disorders. b) Opine as to whether it is at least as likely as not (50 percent probability or more) that any current knee disorders had onset in, or are otherwise related to injuries sustained during periods of active duty service, or training. c) Notwithstanding the above, opine as to whether it is at least as likely as not that one knee disability is caused or aggravated by disability of the opposite knee, to include as to due overcompensation or altered gait. The rationale for all opinions offered should be provided. In rendering each requested opinion, the examiner should consider the opinions from Dr. P.J.Y. dated in February 2013. 5. After completion of the development above, take all other steps necessary to fully develop the Veteran’s remaining service-connection claims, to include obtaining additional medical opinions if needed. 6. Schedule an examination to determine the current severity of the Veteran’s service-connected irritable bowel syndrome, status post excision of Meckel’s diverticulum. The claims folder must be sent to the examiner for review. The examiner should obtain a full history of the Veteran's relevant symptomatology and assess the current severity of his disorder. All tests, studies, or evaluations deemed necessary should be performed, and the results should be reported in detail. 7. Finally, readjudicate the issues on appeal, including entitlement to a 10 percent evaluation based on multiple non-compensable service-connected disabilities. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.