Citation Nr: 21026240 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-50 123A DATE: April 30, 2021 ORDER New and material evidence having been received, the claim for service connection for a right knee condition is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for a left knee condition is reopened, and to that extent only, the appeal is granted. Service connection for a right knee condition is granted. Service connection for a left knee condition is granted. Service connection for headaches is granted. REMANDED Service connection for left ear hearing loss is remanded. Entitlement to a compensable rating (in excess of 0 percent) for right ear hearing loss is remanded. Entitlement to a disability rating in excess of 30 percent for coronary artery disease (CAD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A March 2004 rating decision denied service connection for a bilateral knee condition. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for right and left knee conditions, and raises a reasonable possibility of substantiating the claims. 3. At his March 2021 Board hearing, the Veteran provided competent and credible testimony that he was first treated for his knees in 1977. The Veteran testified that his bilateral knee symptoms and pain began during active service and continued to the present. 4. At his March 2021 Board hearing, the Veteran provided competent and credible testimony that his headaches started in 1968, while in Vietnam. He testified that he never got better, and his headaches slowly got worse, including after service. The Veteran stated that his headaches cause functional impairment that has persisted since service. CONCLUSIONS OF LAW 1. The March 2004 rating decision that denied service connection for a bilateral knee condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claims of service connection for right and left knee conditions are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria have been met for service connection for a right knee condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria have been met for service connection for a left knee condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria have been met for service connection for headaches. 38 U.S.C. §§ 1101, 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 January 1967 to January 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2018 and April 2018 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. Additionally, the Veteran initially filed a claim to establish service connection for migraines. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran’s claim to include headaches, generally, and the issue has been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran’s claim in keeping with the holding in Clemons. Finally, in March 2018 rating decision, the Veteran was granted service connection for right ear hearing loss, evaluated as noncompensable (0 percent) disabling, effective January 25, 2018. Additionally, his service-connected CAD was increased from 10 percent to 30 percent, effective January 25, 2018. As this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). New and Material Evidence 1. New and material evidence has been received to reopen the claim for service connection for a right knee condition. 2. New and material evidence has been received to reopen the claim for service connection for a left knee condition. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing 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 the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for a bilateral knee condition was denied in March 2004 rating decision. That appeal was not perfected nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes the Veteran’s March 2021 testimony at his Board hearing. This evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the claims are reopened. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Service connection for a right knee condition is granted. 2. Service connection for a left knee condition is granted. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Factual Background In his March 2021 Board hearing, the Veteran testified that he was first treated for his knees in 1977. While the 2018 Statement of the Case noted that the Veteran had an arthroscopy in 2002, no one goes in to get an arthroscopy as their first treatment. Additionally, the Veteran stated that during active service, he was involved in a 2am gunfire fight and got some shrapnel in his knees. He was treated overnight at a hospital and his knees were wrapped. The Veteran testified that the skin healed up around 1971 but he continued to have observable symptoms of pain since his original injury. The Veteran testified that he had no knee problems before active service. Analysis Although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of injuring his knees during active service, which caused observable symptoms of pain that continued since his original injury, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that, under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). Because of this, it is at least as likely as not that the Veteran’s current right and left knee conditions began during active service and continued to the present. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for right and left knee conditions is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. 3. Service connection for headaches is granted. Factual Background An August 29, 1968 service treatment record (STR) notes that the Veteran was treated for headaches during service. In his March 2021 hearing, the Veteran testified that his headaches “started in 1968 when I was in Vietnam.” He stated that he was around a “lot of noise and large explosions, tanks, and howitzers, with no earplugs.” The Veteran testified that for a while, it was happening every day during service, making him dizzy. He noted that it never got better and slowly became worse, including after service. The Veteran testified that sometimes his headaches would subside, or became more intermittent, but they never actually went away for good. He reported that he had never had any head trauma before or after active service. The Veteran testified that the VA examination report, finding that he had no diagnosis was incorrect because he noted that he was treated by a private cardiologist for his headaches. He stated that he gets headache pain with functional impairment that has persisted since service. Analysis Although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of his headaches staring in 1968 while in Vietnam, and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that, under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). The Board notes that in the case of Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit addressed “the legal issue [of] whether pain without an accompanying pathology can constitute a “disability” under [38 U.S.C.] § 1110.” 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred “as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a ‘disability’ under [38 U.S.C.] § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment.” The Federal Circuit “conclude[d] that pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Further, the Federal Circuit held that “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity.” Despite the Veteran not having a diagnosis of migraines, he provided competent and credible testimony of headache pain with functional impairment that has persisted since service. Because of this, it is at least as likely as not that the Veteran’s current headaches began during active service and continued to the present. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. REASONS FOR REMAND 1. Service connection for left ear hearing loss is remanded. 2. Entitlement to a compensable rating (in excess of 0 percent) for right ear hearing loss is remanded. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. In his March 2021 Board hearing, the Veteran testified that his hearing in both ears had worsened since his last February 2018 VA examination. Because of this, a new audio examination is necessary to determine if the Veteran has left ear hearing loss for VA purposes, and to determine the current severity of his service-connected right ear hearing loss. 3. Entitlement to a disability rating in excess of 30 percent for CAD is remanded. In the February 2018 VA examination report, the examiner noted that no records were reviewed. However, later in the report, the examiner seemed to refer to some medical records regarding the Veteran’s heart surgeries, but failed to note other relevant records. Additionally, in the examination report, the examiner reported that the Veteran could go up and down stairs, push a lawn mower, and go for a light walk. However, in his 2021 hearing, the Veteran testified that he had a lot of heart-related surgeries and could only walk about 30 feet before he had to stop and “let the blood catch up.” He reported that he was told he had a 95 percent blockage in the left side of his heart and had stents. From this testimony, it is clear that the Veteran’s heard condition has worsened since his last VA examination. Because of this, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s service-connected CAD. 4. Entitlement to a TDIU is remanded. The Board notes that favorable decisions on the claims for service connection and for increased ratings, along with the fact that the Veteran was granted service connection for his bilateral knees and headaches, would impact the Veteran’s claim for a TDIU. Because of this, the Board finds that these issues are inextricably intertwined, and the appeal for a TDIU is remanded for an examination to determine if he is capable of substantially gainful occupation. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for an audiology examination to determine whether the Veteran has left ear hearing loss that meets the VA’s definition of hearing loss under 38 C.F.R. § 3.385. The entire claims file and a copy of this remand must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. If the Veteran’s left ear hearing loss meets the criteria for hearing loss for VA’s purposes, service connection should be granted. Concerning the Veteran’s service-connected right ear hearing loss, the examiner should perform all indicated tests and studies and report all clinical findings in detail. The most up-to-date Disability Benefits Questionnaire must be employed in ascertaining the symptoms and severity of this disorder, utilizing puretone threshold and Maryland CNC testing. The Veteran’s subjective symptoms and functional effects of hearing loss must be fully considered, along with the objective findings shown on examination. 4. Schedule the Veteran for a cardiology examination to determine the current nature, extent, and severity of his CAD. The entire claims file and a copy of this remand must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies must be performed, in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran’s service-connected CAD, to include the Veteran’s testimony in his March 2021 hearing, in accordance with the rating criteria. 5. Forward the Veteran’s claims file to an appropriate medical professional to obtain an opinion commenting on the effects of the combination of the Veteran’s service-connected disabilities on his ability to secure and follow gainful employment. In rendering this “combined effects” opinion, the examiner should review the claims file and take into consideration the Veteran’s level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities. To the extent possible, there should be one opinion as to the combined effects of all the Veteran’s service-connected disabilities, and not multiple opinions addressing each individual disability. 6. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.