Citation Nr: 21041884 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-47 226 DATE: July 10, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right hip strain is granted. Entitlement to service connection for right knee degenerative joint disease granted. Entitlement to service connection for a sinus disorder is denied. REMANDED Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for a jaw disorder is remanded. Entitlement to service connection for a left lower extremity neurological disorder is remanded. Entitlement to service connection for a right lower extremity neurological disorder is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella and torn meniscus is remanded. Entitlement to a rating in excess of 10 percent for right ankle degenerative joint disease with tendonitis is remanded. FINDINGS OF FACT 1. New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. 2. The Veteran currently has tinnitus which first manifested to a compensable degree within one year of active-duty service. 3. The Veteran currently has right knee degenerative joint disease which was aggravated by left knee chondromalacia patella and torn meniscus. 4. The Veteran currently has a right hip strain which was caused by left knee chondromalacia patella and torn meniscus, right knee degenerative joint disease and right ankle degenerative joint disease with tendonitis and lumbosacral strain and degenerative disc disease with arthritis. 5. The preponderance of the evidence is against finding a current diagnosed sinus disability. CONCLUSIONS OF LAW 1. The June 2008 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right hip strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for entitlement to service connection for a right knee disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for entitlement to service connection for a sinus disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to August 1979, October 2003 to January 2004, and July 2005 to October 2006. He served in an imminent pay danger area in Bosnia from December 2005 to October 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal of September 2013 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the representative withdrew her request for a Board hearing as to the issues addressed herein. Subsequently, the representative perfected a separate appeal of the issue of entitlement to service connection for diabetes mellitus and requested a video hearing with regard to that issue. There is no indication that the representative wishes to withdraw her hearing request with regard to the latter issue, and adjudication of that issue is deferred pending the requested hearing. Claims for entitlement to service connection for bilateral hearing loss, tinnitus, a right knee disorder and a right lower extremity neurological disorder were previously denied in June 2008. In October 2012 the Veteran submitted an October 2006 record of in-service treatment for right foot and right knee symptoms. In April 2019 additional Army National Guard treatment records were obtained which included the results of a February 2008 audiological evaluation demonstrating left ear hearing loss for VA purposes. This evidence is relevant to the claims for service connection for a right knee disorder, a right lower extremity neurological disorder, bilateral hearing loss and tinnitus. As this evidence existed at the time of the June 2008 rating decision but had not been associated with the claims file when VA first decided the claims, the Board will reconsider the claims as opposed to requiring new and material evidence to reopen them. 38 C.F.R. § 3.156 (c). New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West,203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for PTSD was denied in a June 2008 rating decision on the basis that neither a current disability or a nexus between the disability and service was established. In a letter dated later that month, the RO notified the Veteran of the determination and of his appellate rights, but he did not appeal the determinations or submit new and material evidence within one year and the decisions became final. 38 U.S.C. § 7105. In October 2012 the Veteran submitted a claim to reopen the issue of entitlement to service connection for PTSD, leading to the appeal before the Board today. In a December 2011 VA treatment record, the Veteran was diagnosed with PTSD which was attributed to witnessing a traumatic incident while serving in Thailand. This evidence suggests that the Veteran has a current diagnosis of PTSD related to an incident during active duty service, and thus relates to the unestablished elements of a current disability and a nexus between PTSD and service. The Board finds that the evidence received since the June 2008 rating decision is new and material as to the claim for entitlement to service connection for PTSD. As this evidence raises a reasonable possibility of substantiating the claim, it is new and material. The claim of entitlement to service connection for PTSD is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Entitlement to service connection for tinnitus is granted. The Veteran contends that tinnitus is etiologically related to in-service noise exposure. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Certain chronic diseases, including tinnitus will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail in a service connection claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In December 2007 the Veteran claimed entitlement to service connection for tinnitus, approximately 14 months after discharge from active-duty service. At a March 2008 VA examination the Veteran reported bilateral tinnitus which he first noticed "after returning from Bosnia." The examiner opined that tinnitus was a symptom of the Veteran's hearing loss but declined to offer an opinion as to whether tinnitus was directly related to active-duty service. The Veteran is competent to describe observable symptoms such as ringing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). In this case, while the specific onset date of tinnitus is unclear, the Veteran first submitted a claim for service connection for tinnitus approximately 14 months after service separation and has competently stated the condition began after returning from Bosnia. Resolving reasonable doubt in the Veteran's favor, the Board finds that these statements describe a compensable tinnitus disability manifesting during active duty service or within one year thereafter. As the March 2008 VA medical opinion failed to provide an opinion regarding direct service connection, the only competent evidence of record regarding the etiology of tinnitus is the Veteran's reports of tinnitus since service. Accordingly, the evidence is at least in equipoise, and entitlement to service connection for tinnitus is granted. Entitlement to service connection for right knee degenerative joint disease and right hip strain is granted. The Veteran contends that he has right knee and hip disorders which were caused or aggravated by his service-connected orthopedic disorders, to include lumbosacral strain and degenerative disc disease with arthritis, left knee chondromalacia patella and torn meniscus and right ankle degenerative joint disease with tendonitis. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310 (a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In January 2014, a private physician, Dr. A.G. diagnosed the Veteran with right knee degenerative joint disease and a right hip strain. Dr. A.G. opined that the right knee degenerative joint disease was aggravated beyond its normal course due to compensation for the service-connected left knee chondromalacia patella and torn meniscus. Dr. A.G. opined that the right hip strain was caused by altered gait due to service-connected disabilities, including the right and left knee, low back, and right ankle disabilities. In July 2017, a VA examiner opined that the right knee disorder was not related to active-duty service or to a service-connected disability. The examiner noted no sign of antalgic gait as the Veteran walked to and from the examination room. While the July 2017 VA examiner did not identify gait problems at the Veteran's examination, the record does reflect that the service-connected orthopedic disorders have caused problems with walking. For example, September 2015 and July 2017 VA ankle and knee examinations noted difficulty walking long distances. Additionally, the July 2017 VA examiner's opinion did not separately address the issues of causation and aggravation with regard to the claimed right knee disorder. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018) (holding that causation and aggravation are independent concepts and should have separate findings and rationales). As such, the July 2017 VA medical opinion in this regard is afforded reduced probative value. Thus, the evidence is in relative equipoise as to whether right knee degenerative joint disease with effusion was aggravated by the Veteran's service-connected disabilities. There is no medical opinion of record which is contrary to the January 2014 opinion of Dr. A.G. regarding the right hip. Thus, the preponderance of the evidence supports finding that the right hip strain was caused by service-connected disabilities. Accordingly, entitlement to service connection for right knee degenerative joint disease and right hip strain is granted. Entitlement to service connection for a sinus disorder is denied. The Veteran contends that service connection for a sinus disorder is warranted. The Veteran claimed entitlement to service connection for a sinus disorder in October 2012. The available medical records pertinent to the claims period contain no documentation of complaints or treatment for any diagnosed sinus disorder or complaints of sinus symptoms. The Veteran is competent to report his symptoms, to include sinus symptoms. However, in this case the Veteran has not specifically described any symptoms related to his claimed sinus disorder. The Board concludes the Veteran does not have a current sinus disability and he has not had such a disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). Moreover, there is no indication of any functional impairment attributable to any such sinus symptoms. The preponderance of the evidence in this case is against finding a current sinus disability. The Board acknowledges that the service treatment records document a complaint of nasal congestion in July 1977. However, the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The symptoms noted in the service treatment record are too remote from the current claims period to support a finding that the Veteran has a current sinus disability. The Board also acknowledges that a medical examination has not been obtained addressing the sinus condition. VA's duty to assist includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). While a medical examination has not been obtained regarding the nature and etiology of any sinus disorder, for the reasons discussed above the Board finds the record does not establish competent evidence of a diagnosed disability or symptoms of a sinus disability. Accordingly, even the low threshold under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) has not been met here and VA's duty to provide a VA examination is not triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c). Based on the foregoing, the preponderance of the evidence of record is against finding that the Veteran has a sinus disability for which service connection can be granted during the claims period. As the evidence preponderates against finding a disability for which service connection may be granted, service connection is not warranted, and the claim is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). REASONS FOR REMAND Entitlement to service connection for hemorrhoids and a jaw disorder is remanded. The Veteran has not been afforded VA examinations to address the nature and etiology of his claimed hemorrhoids and jaw disorders. The service treatment records note hemorrhoids in October 1975, and jaw symptoms in May 2006. July 2017 private treatment records note treatment for hemorrhoids, and in February 2013 the Veteran reported continuous jaw symptoms since a 2005 in-service injury. Based on this evidence, remand is required to obtain VA examinations to consider the nature and etiology of the claimed hemorrhoids and jaw disorder. McLendon, 20 Vet. App. 79. Entitlement to service connection for right and left lower extremity neurological disorders is remanded. These issues are inextricably intertwined with the issue of entitlement to service connection with diabetes mellitus. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for the second issue). Additionally, the record is ambiguous regarding the nature of the Veteran's claimed right and left lower extremity neurological disorders. While a March 2008 VA examiner and the January 2014 opinion of Dr. A.G. suggest that the Veteran's lower extremity neurological symptoms may be attributable to radiculopathy, other records, including September 2013 and July 2017 VA examinations as well as private and VA treatment records attribute the lower extremity symptoms to diabetic neuropathy. Remand is required to obtain a medical examination to resolve this ambiguity. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was provided a VA examination to consider the nature and etiology of his claimed hearing loss in March 2008. At that time the examiner did not find a hearing loss for VA purposes and declined to offer a medical opinion because "the most recent [audiogram] was dated [May 6, 2000.]" Since that time several additional audiograms have been associated with the claims file. Accordingly, remand is required to obtain a new medical examination to consider the new evidence. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran has not been provided a VA examination to consider the nature and etiology of his claimed acquired psychiatric disorder. His VA treatment records note a diagnosis of PTSD attributed to witnessing a stressful event while stationed in Thailand, but the Veteran did not respond to VA's attempt in February 2008 to obtain additional information to verify any claimed stressor. However, the VA treatment records contain additional psychiatric diagnoses including major depressive disorder and panic disorder. The Veteran's representative asserts that these disorders are related to his service-connected orthopedic conditions. Remand is required to obtain a VA examination regarding whether an acquired psychiatric disorder is related to an in-service event or illness. Additionally, a December 2011 VA treatment record notes the Veteran attended group counseling through his Vet Center, but those records have not been requested. Remand is required to obtain these outstanding Federal records. Entitlement to ratings in excess of 10 percent for left knee chondromalacia patella and torn meniscus, and in excess of 10 percent for right ankle degenerative joint disease with tendonitis is remanded. The Veteran was provided a VA examination regarding the severity of his left knee chondromalacia patella and torn meniscus, and right ankle degenerative joint disease in July 2017. The examiner noted the Veteran's report of flare-ups but opined that an estimate of additional functional loss during flares could not be provided on the basis that the Veteran was not experiencing a flare-up at the time of the examination. The July 2017 medical examination is inadequate in light of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In that decision, the Court held that VA examiners must attempt to estimate the nature of any functional loss during a flare-up based on all information that can be feasibly derived, including the lay statements of the Veteran. In this case, it is not clear that the examiner considered the Veteran's medical treatment records and lay statements prior to determining that an estimate of additional functional loss based on flare-ups could not be provided. Remand is required to obtain an adequate VA medical examination. The matters are REMANDED for the following action: 1. Obtain any relevant Vet Center records, including from December 2011. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hemorrhoids. The examiner should state: a. Have hemorrhoids been present at any time since October 23, 2012? b. For any such hemorrhoids: are they at least as likely as not related to an illness, event, or injury in service? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a jaw disorder. The examiner should state: a. What diagnosed jaw disorders have been present at any time since October 23, 2012? b. For each such jaw disorders: is it at least as likely as not related to an illness, event, or injury in service? 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of right and left lower extremity neurological disorders. The examiner should state: a. What diagnosed right lower extremity neurological disorders have been present at any time since December 8, 2007? b. What diagnosed left lower extremity neurological disorders have been present at any time since October 23, 2012? c. For each such right or left lower extremity neurological disorders: is it at least as likely as not related to an illness, event, or injury in service? d. For each such right or left lower extremity neurological disorders: is it at least as likely as not proximately caused by the Veteran's service-connected lumbosacral strain and degenerative disc disease with arthritis? e. For each such right or left lower extremity neurological disorders: is it at least as likely as not aggravated beyond its natural progression by a lumbosacral strain and degenerative disc disease with arthritis? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hearing loss. The examiner should state: a. What hearing loss has been present at any time since December 8, 2007? b. For any such hearing loss: is it at least as likely as not related to an illness, event, or injury in service, to include in-service noise exposure? 6. After the development in #1, 3 and 4, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders. The examiner should state: a. What diagnosed acquired psychiatric disorders have been present at any time since October 23, 2012? b. For each such acquired psychiatric disorder: is it at least as likely as not related to an illness, event, or injury in service? c. For each such acquired psychiatric disorder: is it at least as likely as not proximately caused by the Veteran's service-connected orthopedic disabilities, to include a lumbosacral strain and degenerative disc disease with arthritis, right knee degenerative joint disease, left knee degenerative joint disease with chondromalacia patella and torn meniscus, a right hip strain and right ankle with degenerative joint disease with tendonitis? d. For each such acquired psychiatric disorder: is it at least as likely as not aggravated beyond its natural progression by service-connected orthopedic disabilities, to include a lumbosacral strain and degenerative disc disease with arthritis, right knee degenerative joint disease, left knee degenerative joint disease with chondromalacia patella and torn meniscus, a right hip strain and right ankle with degenerative joint disease with tendonitis? 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee chondromalacia patella and torn meniscus and right ankle degenerative joint disease with tendonitis. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. a. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If any requested testing cannot be completed, the examiner should state why that is the case. b. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and provide, to the extent possible, an estimate of the additional degrees of limited motion of the lumbar spine during flare-ups. c. If the clinician cannot provide the above-requested opinion regarding flare-ups without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp, 29 Vet. App. at 33. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.