Citation Nr: 9935093 Decision Date: 12/17/99 Archive Date: 12/23/99 DOCKET NO. 91-21 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for a dental disability, including periodontal disease, for the purpose of establishing eligibility for Department of Veterans Affairs dental treatment. Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a low back disability. Entitlement to Department of Veterans Affairs disability compensation for a dental disability involving teeth numbers 29, 30, 31 and 32, pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 and Supp. 1997). Entitlement to an increased evaluation for the residuals of right knee trauma with internal derangement and strain, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran had active service from April 1946 to October 1947 and from October 1967 to March 1977. This appeal arises from rating decisions in 1990 that denied service connection for a dental disability, including periodontal disease, for the purpose of establishing eligibility for Department of Veterans Affairs (VA) dental treatment; and denied VA disability compensation for a dental disability involving teeth numbers 29, 30, 31 and 32, pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 and Supp. 1997). This appeal also arises from a January 1993 rating decision that denied the veteran's request to reopen his claim for entitlement to service connection for a low back disability and a July 1996 rating decision that continued a 10 percent disability evaluation for the residuals of right knee trauma with internal derangement and strain. This final decision will be limited to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a low back disability. The remaining issues set out on the title page will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been requested by the originating agency. 2. In a decision dated in December 1986, the Board denied the veteran's claim for entitlement to service connection for a low back disability. 3. Evidence received since the 1986 decision, which consists of statements from chiropractors; private dental records and statements from dentists, private treatment records; a report from an osteopath; a medical publication; transcripts of hearings on appeal; VA treatment records and reports of examinations; and duplicate copies of service medical records and a duplicate copy of the statement from a chiropractor, are either duplicative, cumulative in nature or of no probative value. CONCLUSION OF LAW The evidence received since the Board denied entitlement to service connection for a low back disability in a decision dated in December 1986 is not new and material; the veteran's claim may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is requesting that his claim for entitlement to service connection for a low back disability be reopened. The relevant evidence which was of record prior to the December 1986 Board decision included the available service medical records (some records are presumed lost in a fire at the National Personnel Records Center (NPRC) in July 1973), a report of a VA examination, private medical records, a statement from the veteran's cousin and hearings on appeal. The available service medical records show that the veteran complained of low back pain in February 1969 and that an X- ray examination revealed very slight scoliosis of the lumbar spine, possibly postural or due to muscle spasm; on the right side. It was noted that the low back was otherwise normal. At the time of the veteran's examination in February 1977 for separation from service, he indicated that he seemed to be in good health except for his right knee and minor chest distress. On examination his spine and musculoskeletal and neurologic systems were found to be normal. In an undated copy of the back page of a separation examination report, written in the medical history section were several statements, including injured back bone in Vietnam in 1969 and a right knee injury in 1973, and underneath these statements was written the veteran's name. The examiner's name was Roy Wong, M.D. Associated with this page was a copy of an October 1975 electrocardiogram report, signed by Dr. Wong, in which the letters "ETS" were noted. VA reports of examination show that at the time of a December 1982 examination the veteran reported that he had injured his back in Vietnam in 1969 and had tolerated the pain since then. The diagnoses following examination included degenerative disc disease of the lumbosacral spine and degenerative arthritis of the lumbosacral spine. The veteran's cousin, in January 1985, indicated that he recalled the veteran complaining about back problems. At an August 1985 hearing on appeal the veteran testified that he recorded his medical history on the discharge examination record. The veteran testified that he injured his low back in service in 1969 and had had problems ever since. 1n a January 1985 statement Joseph B. Strauss, D.C., reported that the veteran had received chiropractic care during the period from November 1979 to April 1981. The private medical records show that the veteran was seen by Dr. Andrew Ptak, a chiropractor, in September 1984 for treatment of injuries sustained in an accident which occurred in February 1969. The chief symptoms included stiff low back, fire-like throbbing in the lower back and pins and needles in the legs. Following examination, the diagnoses were chronic sprain to the lumbar spine with ligamentous instability, myofascitis and evidence of nerve root irritation. It was noted that the structural weakness of the lumbar spine was traumatically induced. Another chiropractor, Dr. Stephen M. Johnson, reported that he saw the veteran in January 1985 for chronic low back pain with numbness in the legs which the veteran related to an injury sustained in service. Records reflect that the veteran was seen by J V. Mackell, Jr., M.D., during 1985 and 1986. In January 1985 the veteran reported that he had injured his back jumping out of a helicopter in 1969. The impression was significant degenerative spondylosis. It was observed that it appeared to be related to the injury in 1969 and the physician noted that a compression injury to the spine at that time could easily cause these problems noted now. Dr. Mackell, in statements dated in October 1985 and July 1986, related that the veteran had significant problems involving the lumbosacral spine which were the result of his injury which took place in Vietnam. Dr. Albert R. Ponto, a chiropractor, reported after examining the veteran in October 1985, a diagnosis of chronic, moderately severe sciatic neuralgia secondary to decreased disc space between the lumbosacral joint related to a subluxation-fixation complex of the fourth and fifth lumbar vertebrae and sacrum resulting in nerve root irritation. It was his opinion that within a reasonable degree of professional certainty that the veteran's condition was the result of a previous accident in Vietnam. At a December 1986 hearing on appeal the veteran submitted into evidence a December 1986 report from John J. Piazza, D.C., in which he reported the results of comparative muscle testing and that the veteran's degenerative spondylosis was the result of impact trauma to the lumbosacral spine, copies of documents referring to the comparative muscle tester machinery and a report of an X-ray of the veteran's low back conducted at Nazareth Hospital in November 1986. Based upon consideration of this evidence, a December 1986 Board decision found that the veteran's episode of complaints of low back pain during service was acute and transitory, did not result in residual disability and was unrelated to the currently diagnosed degenerative arthritis and degenerative disc disease of the lumbar spine. It was concluded that a chronic low back disability was not incurred in or aggravated by active service and degenerative arthritis may not be presumed to have been incurred in service. In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If it is determined that new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three-step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Evans, 9 Vet. App. 273, 283; but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. The documents which have been made part of the record since the December 1986 Board decision include a November 1986 statement from Dr. Ptak, private dental records and statements from dentists, a 1988 report of magnetic resonance imaging (MRI) of the veteran's cervical spine, a March 1992 report of a MRI of the veteran's lumbar spine; a June 1993 report by David Weiss, D.O.; a copy of two pages of a health column; duplicate copies of treatment records from Dr. Mackell as well as additional treatment records dated from 1987 to 1992; the transcript of June 1993 and September 1998 hearings on appeal; a September 1998 report from Dr. Piazza; VA treatment records and reports of examinations; and duplicate copies of service medical records and a duplicate copy of the statement from Dr. Johnson. Some of the evidence received, such as the duplicate copies of some documents, is not new. The testimony provided by the veteran at his 1993 and 1998 hearing is not new as he continues to maintain that he injured his back in Vietnam in 1969 and has had problems since then as a result of this injury. Numerous other documents are new but can not be considered material as they have no relevance to the veteran's claim. These include the VA treatment records and reports of examinations that do not refer to the veteran's low back disability, the various dental records, and the additional treatment records from Dr. Mackell and the MRI's which only demonstrate that the veteran has continued to receive medical treatment. In the statement from Dr. Ptak he noted that he first treated the veteran in January 1985 for the veteran's February 1969 injury in service. Dr. Ptak observes that since the veteran's degenerative changes are localized at the lumbosacral joint only, and not the whole spine, the causal relationship of a low back injury is indicated. Dr. Weiss indicated in his report that the veteran had been injured while jumping out of a helicopter repetitively in Vietnam. Following examination, the diagnoses included repetitive trauma disorder; herniated nucleus pulposus, lumbosacral joint by MRI; post traumatic osteoarthritis, lumbosacral spine; and myofascial pain syndrome. Dr. Weiss concluded that the veteran had suffered a permanent functional orthopedic impairment. Dr. Piazza states that he has been treating the veteran for nine years. After noting that the veteran suffers from chronic pain which stems back to when he was serving in Vietnam, Dr. Piazza indicates that the veteran states that his duties required repetitive jumping from air craft and has suffered chronic lower back pain since that time. It is noted that the veteran sustained a left shoulder injury in 1987 and Dr. Piazza concludes that the veteran has suffered significant pathology and orthopedic impairment in the lumbar spine and shoulder girdles and is suffering chronic pain from these injuries. While the statements from Dr. Ptak and Dr. Piazza are certainly new in that they were not of record at the time of the 1986 Board decision, both must be considered cumulative. In the statement from each of these chiropractors which was of record at the time of the 1986 Board decision and in the statement received from each of these chiropractors since the Board decision each concludes that the veteran's low back disability was the result of trauma or injury. The report from Dr. Weiss, while new, only repeats the history as given by the veteran. In sum, a comprehensive analysis of the evidence submitted since the December 1986 Board decision shows that the evidence is either duplicative, not probative or cumulative. Accordingly, the Board finds that new and material evidence has not been submitted to reopen the veteran's claim for service connection for a low back disability, and the December 1986 Board decision denying service connection is final. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156. Because the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine does not need to be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted to reopen the claim for service connection for a low back disability, to this extent, the appeal is denied. REMAND The veteran is also seeking service connection for a dental disability, including periodontal disease, for the purpose of establishing eligibility for VA dental treatment. During the pendency of his appeal, the regulations pertaining to service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381 (1999), were revised effective June 8, 1999. The veteran is claiming an increased evaluation for the residuals of right knee trauma with internal derangement and strain. During his September 1998 hearing on appeal the veteran requested that the Board decide this issue, if possible, without remand. He stated that he would appear for an examination if the Board found that such an examination was necessary. The veteran, at the time of a March 1997 VA orthopedic examination, indicated that his right knee pain had gotten progressively worse over the years and that prolonged standing, walking, climbing and cold weather made his right knee pain worse. He related that during flare-ups his knee was stiff and the range of motion decreased. On X-ray examination of the right knee, the impression was mild degenerative joint disease. In a precedent opinion, the VA Office of General Counsel (OGC) held that a veteran who has arthritis and instability of the knee may be rated separately under Code 5003 and Code 5257. VAOPGCPREC 23-97. Subsequently, in VAOPGCPREC 9-98 it was held that if a musculoskeletal disability is rated under a specific diagnostic code that does not involve limitation of motion, and another diagnostic code based on limitation of motion may be applicable, the latter diagnostic code must be considered in light of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999); Johnson v. Brown, 9 Vet. App. 7 (1996). A separate rating can be established if the disability meets the criteria for at least a 0 percent rating under either diagnostic code for limitation of motion or if there is arthritis and painful motion. Id.; VAOPGCPREC 9-98. In view of the foregoing, the Board finds that the issue of entitlement to VA disability compensation for a dental disability involving teeth numbers 29, 30, 31 and 32, pursuant to the provisions of 38 U.S.C.A. § 1151 should be deferred and the issue of a dental disability, including periodontal disease, for the purpose of establishing eligibility for VA dental treatment as well as the issue of an increased evaluation for the residuals of right knee trauma with internal derangement and strain REMANDED to the originating agency for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his right knee disability since August 1999. After securing the necessary release, the RO should obtain the records not already secured from the medical care providers. All documents obtained should be associated with the veteran's claims file. 2. Thereafter, the veteran should be afforded a VA examination by an orthopedic specialist to determine the current extent and severity of the right knee disability. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The examiner should identify the limitation of activity imposed by the disabling condition, viewed in relation to the medical history, considered from the point of view of the veteran working or seeking work, with a full description of the effects of disability upon his ordinary activity. An opinion should be provided regarding whether pain significantly limits functional ability during flare-ups or with extended use. Voyles v. Brown, 5 Vet. App. 451, 453 (1993). It should be noted whether the clinical evidence is consistent with the severity of the pain and other symptoms reported by the veteran. The examiner also should indicate whether the affected joint exhibits weakened movement, excess, fatigability, or incoordination. Lathan v. Brown, 7 Vet. App. 359 (1995); DeLuca v. Brown, 8 Vet. App. 202 (1995). The claims file, including a copy of this REMAND, must be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made. 3. After the development requested above has been completed, the RO should again review the veteran's claims, including consideration of DeLuca as well as entitlement to a separate disability evaluation for arthritis of the right knee. The RO should also re-adjudicate the veteran's claim for a dental disability, including periodontal disease, for the purpose of establishing eligibility for VA dental treatment, by applying 38 C.F.R. § 3.381, effective June 8, 1999. If the benefits sought on appeal are not granted to the satisfaction of the veteran, he and his representative should be furnished a supplemental statement of the case which includes, if appropriate, any additional regulations pertaining to the rating of the right knee disability as well as 38 C.F.R. § 3.381, effective June 8, 1999. They should be given the opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The purpose of this REMAND is to obtain clarifying information and ensure due process. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until so notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. RENÉE M. PELLETIER JONATHAN E. DAY Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals ROBERT E. SULLIVAN Member, Board of Veterans' Appeals