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