Citation Nr: 0811204	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  06-30 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUES

1.  Entitlement to service connection for right knee 
disability. 

2.  Entitlement to service connection for post traumatic 
stress disorder (PTSD). 

3.  Whether new and material evidence has been submitted to 
reopen the claim of service connection for lumbosacral 
strain, discogenic disease.  

4.  Entitlement to service connection for lumbosacral strain, 
discogenic disease. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. S. Willie, Associate Counsel 


INTRODUCTION

The veteran served on active duty from December 1973 to 
December 1977.  

This case initially comes before the Board of Veterans' 
Appeals (Board) on appeal of a January 2004 rating decision 
rendered by the Los Angeles, California, Regional Office (RO) 
of the Department of Veterans Affairs (VA).  

As an initial matter, the Board notes that although the 
veteran indicated, in his Appeal to Board of Veterans' Appeal 
Form 9, that he also wished to appeal the issues of 
entitlement to service connection for tuberculosis and 
whether new and material evidence has been submitted to 
reopen the claim for bilateral shin splints, the veteran 
withdrew those issues during his January 2008 hearing before 
the undersigned Veterans Law Judge.  A transcript of the 
hearing is of record.  

The issue of entitlement to service connection for 
lumbosacral strain, discogenic disease is addressed in the 
REMAND portion of the decision below and is REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDINGS OF FACT

1.  Right knee disability is not attributable to service.

2.  The veteran did not engage in combat. 

3.  The veteran does not have a diagnosis of PTSD.

4.  PTSD is not attributable to service.  

5.  Service connection for lumbosacral strain discogenic 
disease was denied in a November 1992 rating decision.  The 
veteran did not appeal that decision and it became final.  

7.  The evidence added to the record since the November 1992 
decision is not cumulative or redundant of the evidence 
previously of record and does relate to an unestablished fact 
necessary to substantiate the claim. 


CONCLUSIONS OF LAW

1.  Right knee disability was not incurred in or aggravated 
by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 
C.F.R. § 3.303 (2007).

2.  PTSD was not incurred in or aggravated by active service.  
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 
3.304(f) (2007).

3.  The November 1992 rating decision, which denied service 
connection for lumbosacral strain discogenic disease, is 
final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 
20.302, 20.1103 (2007). 

4.  New and material evidence to reopen the veteran's claim 
for service connection for lumbosacral strain, discogenic 
disease has been received and the claim is reopened.  38 
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

 VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2006), provide that VA will assist a claimant 
in obtaining evidence necessary to substantiate a claim but 
is not required to provide assistance to a claimant if there 
is no reasonable possibility that such assistance would aid 
in substantiating the claim.  The VCAA also require VA to 
notify the claimant and the claimant's representative, if 
any, of any information, and any medical or lay evidence, not 
previously provided to the Secretary that is necessary to 
substantiate the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.  In 
addition, VA must also request that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claim.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No. 
107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error')."  Id. at 121.

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim. Those five elements include: 
1) veteran status; 2) existence of a disability; 3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Id. at 486.

The record reflects that the originating agency provided the 
veteran with the notice required under the VCAA by letter 
dated in March 2004.  While the March 2004 letter provided 
adequate notice with respect to the evidence necessary to 
establish entitlement to service connection and to reopen a 
claim for service connection, it did not provide notice of 
the type of evidence necessary to establish a disability 
rating or effective date for the disability on appeal.  See 
Dingess, supra.  Despite the inadequate notice, the Board 
finds no prejudice to the veteran in proceeding with the 
issuance of a final decision. See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993) (where the Board addresses a question 
that has not been addressed by the agency of original 
jurisdiction, the Board must consider whether the veteran has 
been prejudiced thereby).  As the Board concludes below that 
the preponderance of the evidence is against the veteran's 
claims, any questions as to the appropriate disability rating 
or effective date to be assigned are rendered moot.

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefits sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim. 
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007).  
The veteran has been afforded appropriate examinations, and 
available service records and pertinent post service medical 
records have been obtained.  The veteran has not identified 
any outstanding evidence that could be obtained to 
substantiate the claim.  The Board is also unaware of any 
such evidence.  

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence 
necessary to substantiate the claim.  The evidence of record 
provides sufficient information to adequately evaluate the 
claim, and the Board is not aware of the existence of any 
additional relevant evidence which has not been obtained.  No 
further assistance to the veteran with the development of 
evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 
3.159(d).

Accordingly, the Board will address the merits of the appeal.  

					Legal Criteria 

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection 
basically means that the facts, shown by evidence, establish 
that a particular injury or disease resulting in disability 
was incurred coincident with service in the Armed Forces, or 
if preexisting such service, was aggravated therein. 38 
C.F.R. § 3.303 (2007).  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) 
(2007).

A claim for service connection generally requires competent 
evidence of a current disability; proof as to incurrence or 
aggravation of a disease or injury in service, as provided by 
either lay or medical evidence, as the situation dictates; 
and competent evidence as to a nexus between the in-service 
injury or disease and the current disability.  Cohen v. 
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. 
App. 465 (1995). 

The Board observes that the veteran did not engage in combat 
with the enemy.  The veteran's service personnel records do 
not show that he received any citations or awards for 
participation in combat with the enemy.  Also, nothing in the 
veteran's statements establish that he participated in 
combat.  Therefore, the provisions of 38 U.S.C.A. § 1154 
(West 2002) are not applicable.


        Analysis
        
A.  Service Connection for Right Knee Disability

The veteran is seeking service connection for right knee 
disability, which he believes is a consequence of service.  
After careful review of the record, the Board finds against 
the veteran's claim.   

The veteran served on active duty during the Vietnam War and 
during peacetime.  During the veteran's enlistment 
examination, he reported that he had "trick" or locked 
knee.  At that time, he reported that his right knee felt 
like locking.  Further examination showed that there was no 
enlargement, effusion or tenderness of the right knee.  The 
ligaments were intact with a full range of knee motion.  It 
was determined that the veteran did not have a disqualifying 
defect.  

During service the veteran complained of left knee pain and 
during a physical examination it was noted that both knees 
were within normal limits except retro patellar tenderness 
about with the left knee greater than the right.  Clinical 
evaluations of the lower extremities conducted at separation 
were normal.  The veteran also reported at separation that he 
was in good health.   

During a May 2004 VA examination, it was reported that the 
veteran had right knee surgery in 1989.  It was noted in a 
May 2004 compensation and pension examination that the 
veteran had a limited range of motion of the right knee and 
that it caused pain.  An assessment of right knee pain status 
post right knee surgery with recurrent pain was given.  

Although the evidence indicates that the veteran has a right 
knee disability, there is no competent evidence linking the 
veteran's right knee disability with service.  The Court has 
held that in order to establish service connection, there 
must be evidence of both a service- connected disease or 
injury and a present disability which is attributable to such 
disease or injury.  Rabideau v. Derwinski, 2 Vet. App. 141, 
143 (1992).  Here, while the evidence of record shows that 
the veteran has a right knee disability, there is no 
competent evidence that establishes a nexus, or link, between 
the condition and the veteran's military service.  

The Board recognizes that the veteran reported at enlistment 
that his right knee felt like locking.  However, further 
examination at that time showed that there was no 
enlargement, effusion or tenderness of the right knee.  The 
ligaments were intact with a full range of knee motion.  The 
veteran also reported left knee pain during service.  
However, physical examination showed that both knees were 
within normal limits except retro patellar tenderness about 
with the left knee greater than the right.  The Board notes 
that clinical evaluations of the lower extremities conducted 
at separation were normal. 

The Board has considered the various statements made by the 
veteran linking his right knee condition to service.  
However, a layperson lacks the capacity to provide evidence 
that requires specialized knowledge, skill, experience, 
training, or education.  Espiritu v. Derwinski, 2 Vet. App. 
492, 495 (1992).  If the determinative issue involves medical 
causation or a medical diagnosis, competent medical evidence 
is required.  Grottveit v. Brown, 5 Vet. App. 91 (1993).  To 
the extent that the veteran asserts that his right knee 
disability is attributable to a fall in service, the Board 
concludes that his assertion is unsupported by reliable 
evidence and is not credible.  There is also a remarkable 
lack of corrobative evidence within years of separation from 
service.  Although symptoms, not treatment, are the essence 
of any evidence of continuity of symptomatology, in a merits 
context the lack of evidence of treatment may bear on the 
credibility of the evidence of continuity.  See Savage v. 
Gober, 10 Vet. App. 488 (1997).  The veteran's original 1992 
claim for compensation was silent for a claim of a right knee 
disability.  His silence when otherwise affirmatively 
speaking constitutes negative evidence.  Furthermore, in May 
2004, he reported having right knee surgery in 1989.  This 
statement provided for treatment shows that the veteran had 
surgery for this condition about 12 years after separation 
from service.  Such statements against interest are for more 
probative than an assertion that he has had a right knee 
condition since service.  

The preponderance of the evidence is against the claim for 
service connection for right knee disability.  Thus, service 
connection for right knee disability is denied.  
B.  Service Connection for PTSD

The veteran is seeking service connection for PTSD, which he 
believes is a consequence of service.  After careful review 
of the record, the Board finds against the veteran's claim. 

In order for a claim for service connection for PTSD to be 
successful there must be: (1) medical evidence diagnosing the 
condition in accordance with 38 C.F.R. § 4.125(a); (2) 
credible supporting evidence that the claimed in-service 
stressor actually occurred; and (3) a link, established by 
medical evidence, between the current symptoms and the 
claimed in-service stressor.  38 C.F.R. § 3.304(f) (2007); 
see also Cohen v. Brown, 10 Vet. App 128 (1997).  

The veteran's service medical records show that during 
service he was hospitalized for alcohol and emotional 
problems.  Although the veteran's service medical records 
also show a notation of depression and a psychiatric problem, 
the service medical records did not reveal any complaints, 
findings or diagnoses of PTSD.  Psychiatric clinical 
evaluations conducted at separation were normal.  

In an August 1992 VA compensation and pension examination, 
the veteran reported that he was hospitalized in a 
psychiatric ward during service because he lost his temper.  
Intermittent explosive disorder and dysthymic disorder were 
diagnosed.  In a May 2004 VA compensation and pension 
examination, the veteran reported nightmares, flashbacks and 
depression due to service.  The assessment was reported 
history of PTSD with recurrent depression intermittently.  
Post service medical records reveal that the veteran is 
undergoing counseling with social worker, J.R.E.  In an 
October 2006 statement, J.R.E. maintained that the veteran 
continues psychotherapy to address symptoms of PTSD, as 
likely as not occurring from two unfortunate events while in 
service.  J.R.E. noted that the veteran had frequent and 
recurring nightmares, "checking" behavior, avoidance, and 
pronounced guilt informing rage response and sleep hygiene.  

The veteran reported during his January 2008 hearing that he 
received "Dear John" letters and witnessed someone blow out 
their brains in service.  The veteran also reported 
witnessing an attempted suicide during service.  The veteran 
maintained that he watched someone try to jump from a three 
to four story building and that the person did not die but 
broke his legs.  The veteran testified that watching the 
suicide and attempted suicide changed his personality which 
caused him to be given medical treatment.  

The Board finds that service connection for PTSD is not 
warranted.  In this regard, the Board notes that a key 
element to establishing service connection is to show that 
the veteran has the claimed disability.  This element may 
only be shown through evidence of a diagnosis.  See 38 C.F.R. 
§ 3.304.  The Board notes that the veteran does not have a 
diagnosis of PTSD.  Post service medical records show that 
veteran reported nightmares, flashbacks and depression due to 
service.  Although J.R.E. maintained that the veteran 
continues to undergo psychotherapy to address symptoms of 
PTSD, there is no medical evidence diagnosing the condition 
in accordance with 38 C.F.R. § 4.125.  

Under these circumstances, the Board must conclude that the 
veteran has not met the regulatory requirements for service 
connection for PTSD, and that, on this basis, his claim must 
be denied.  

C.  New and Material Evidence to Reopen Claim for Lumbosacral 
Strain, Discogenic Disease

Generally, a claim which has been denied in an unappealed RO 
decision or an unappealed Board decision may not thereafter 
be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) 
(West 2002).  The exception to this rule is 38 U.S.C.A. § 
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 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).

The veteran was denied service connection for lumbosacral 
strain, discogenic disease in November 1992.  The RO found 
that the evidence failed to show that lumbosacral strain, 
discogenic disease was due to service.  The evidence 
associated with the claims folder at the time of the November 
1992 rating decision included service medical records that 
showed the veteran complained of low back pain in service.  
It was noted during service that the veteran complained of 
pain in the lower lumbar region, the veteran reported that 
the pain increased with alcohol.  Also associated with the 
claims folder at that time were post service examinations 
which showed that the veteran had a diagnosis of trauma to 
lumbosacral due to lifting up a clutch assembly in April 
1991.  A March 1992 medical report showed a diagnosis of 
discogenic disease at L 4-5 and possible narrowing of the 
lumbosacral disc.  The record also showed that in a May 1992 
VA compensation and pension examination the veteran reported 
that he injured his back in service and that he has had 
subsequent chronic back pain.  During that examination, a 
history of low back pain and injury was noted.  

The veteran failed to file a timely appeal of the November 
1992 decision.  In March 2004, the veteran submitted a 
request to reopen the claim for service connection for 
lumbosacral strain discogenic disease.  In a rating decision 
issued in January 2004, the veteran was notified that his 
request to reopen the claim was denied because he failed to 
submit new and material evidence to substantiate his claim.  

The Board has made a careful review of the record.  The Board 
notes that at the time of the prior denial, there was 
evidence of lumbosacral strain, discogenic disease, but no 
evidence of a nexus to service or in-service disease or 
injury.  Since that determination, the veteran has presented 
a July 2004 VA compensation and pension examination which 
showed chronic low back pain reported to have started in the 
military.  It was also noted that the veteran has had four 
back surgeries.  A February 2005 statement from Dr. S.W.R. 
maintained that at the time of the veteran's lumbar surgery 
there clearly was preexisting scar tissue from a previous 
back injury.  Dr. S.W.R. concluded that since the only 
previous back injury the veteran had was while in service, 
the scar tissue is directly service connected.  If accepted 
as true, the opinion provides a nexus to service, a fact not 
previously established.  

The Board finds that the opinion of Dr. S.W.R. constitutes 
new and material evidence in that it is not cumulative nor 
redundant of previously submitted evidence.  Accordingly, the 
Board finds that new and material evidence has been submitted 
to reopen his claim.  


ORDER

Service connection for right knee trauma is denied.  

Service connection for PTSD is denied.

The application to reopen the claim for service connection 
for lumbosacral strain discogenic disease is granted.

REMAND

Under 38 C.F.R. § 3.159(c)(4), in a claim for disability 
compensation, VA will provide a medical examination or obtain 
a medical opinion based upon a review of the evidence of 
record if VA determines it is necessary to decide the claim.  
A medical examination or medical opinion is necessary if the 
information and evidence of record does not contain 
sufficient competent medical evidence to decide the claim, 
but: (A) Contains competent lay or medical evidence of a 
current diagnosed disability or persistent or recurrent  
symptoms of a disability; (B) Establishes that the veteran 
suffered an event, injury or disease in service; and (C)  
Indicates that the claimed disability or symptoms may be 
associated with the established event, injury or disease in 
service or with another service-connected disability.  

For the following reasons, the Board finds that the instant 
matter should be remanded for a VA medical examination 
pursuant to 38 C.F.R. § 3.159(c)(4).  

The veteran has alleged that he is entitled to service 
connection for lumbosacral strain, discogenic disease.  In 
order for a claim for service connection for lumbosacral 
strain, discogenic disease to be successful there must be 
evidence of both a service- connected disease or injury and a 
present disability which is attributable to such disease or 
injury.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  

During service the veteran complained of pain in the lower 
lumbar region on about two occasions.  However, at separation 
clinical evaluations of the spine were normal.  In an April 
1991 private medical examination, the veteran reported that 
he injured his back at work and a diagnosis of strain 
lumbosacral was given.  In a May 1992 VA compensation and 
pension examination, the veteran reported that he injured his 
back in service and that he has had subsequent chronic back 
pain. However, in a July 1996 neurosurgical consultation 
report the veteran reported that his back pain started when 
he lifted a transmission weighing about 75lbs.  Since that 
time, the veteran reported having pain in his mid and low 
back.  The veteran was given an impression of a herniated at 
L2-3 and L4-5 and surgery was recommended.  From October 1996 
to about November 1998, the veteran was treated for his 
complaints of low back pain due to the on the job injury in 
July 1995.  During the above time period, the veteran had 
four surgeries for his low back condition.  

In a May 2004 VA compensation and pension examination, the 
veteran reported a history of low back pain with an onset in 
service.  The veteran reported falling down stairs in Berlin, 
an altercation with military police in which he was struck in 
the back with a baton, and back injuries sustained while 
exercising in service.  

In a February 2005 statement, Dr. S.W.R. noted that at the 
time of the veteran's surgery there clearly was preexisting 
scar tissue from a previous back injury.  Dr. S.W.R. then 
opined that since the only previous back injury the veteran 
had was while in service, the scar tissue is directly service 
connected.  Also, in May 2006 Dr. L.R.T. submitted a 
statement maintaining that the veteran injured his back in 
service and that his back was compromised because of this 
injury.  Dr. L.R.T further maintained that scar tissue has 
built up and the veteran's mobility has been greatly 
compromised.  

Although the veteran has been diagnosed with lumbosacral 
strain, discogenic disease, the veteran has not been afforded 
a VA compensation and pension examination to determine if 
there is a link between his disability and service.  In view 
of VA's duty to assist obligations, which include the duty to 
obtain a VA examination or opinion when necessary to decide a 
claim, this issue is remanded for a VA examination to 
determine if there is a link between the veteran's 
lumbosacral strain, discogenic disease and service.  

With respect to the notification requirements of the VCAA, 
the Board observes that the veteran has not been provided all 
notice required by Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  On remand, the RO should provide him with a VCAA 
compliant notice letter.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should send the veteran a 
corrective VCAA notice under 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) (2007), 
that includes an explanation as to the 
information or evidence needed to 
establish a disability rating and 
effective date for the claim on appeal, as 
outlined by the Court in Dingess, supra.  

2.  The veteran should be afforded 
appropriate VA examinations to ascertain 
whether his lumbosacral strain, discogenic 
disease is attributable to service.  The 
examiner should state for the record 
whether any currently shown low back 
disability is likely, as likely as not, or 
not likely related to service.  If there 
is no relationship to service, that fact 
must be noted in the report.  The claims 
folder should be made available to the 
examiner for review.  A complete rationale 
for all opinions should be provided.  

3.  After the development requested above 
has been completed to the extent possible, 
the RO should again review the record.  If 
any benefit sought on appeal, for which a 
notice of disagreement has been filed, 
remains denied, the appellant and 
representative, if any, should be 
furnished a supplemental statement of the 
case and given the opportunity to respond 
thereto.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).


____________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs