Citation Nr: 0811636 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 03-27 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for left knee injury residuals. 2. Entitlement to an increased rating for service-connected lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Procedural history The veteran served on active duty in the United States Army from March 1966 to April 1969 and from July 1969 to June 1975. The veteran was originally granted service connection for lumbosacral strain in an October 1975 rating decision. The same decision denied the veteran's claim of entitlement to service connection for left knee injury residuals. The veteran did not appeal that decision. In October 2001, the veteran filed a claim seeing to reopen his previously denied claim of entitlement to service connection for a left knee disability. He also requested an increased rating for his service-connected back condition. In a May 2002 rating decision, the RO denied the veteran's left knee claim and increased his lumbosacral disability rating to 10 percent. The veteran has perfected an appeal as to these issues. In February 2004 the RO increased the disability rating assigned the veteran's lumbosacral disability rating to 20 percent. The veteran has indicated continued dissatisfaction with this rating in subsequent correspondence to the RO. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated]. The veteran presented testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the RO in January 2008. A transcript of the hearing has been associated with the veteran's VA claims folder. The issue of entitlement to an increased rating for lumbosacral strain 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. Issues not on appeal In a March 2007 letter, the veteran indicated that he wished to withdraw his pending claims of entitlement to service connection for type II diabetes mellitus and entitlement to an increased rating for service-connected post-traumatic stress disorder. This was confirmed during the January 2008 hearing. See January 2008 hearing transcript, page 2. Those issues, accordingly, are not before the Board. See 38 C.F.R. § 20.204 (2007). FINDINGS OF FACT 1. In October 1975, the RO denied the veteran's claim of entitlement to service connection for right knee injury residuals. A timely appeal as to that issue was not perfected. 2. The evidence associated with the claims folder subsequent to the October 1975 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for left knee injury residuals. CONCLUSIONS OF LAW 1. The RO's October 1975 rating decision, wherein service connection for left knee injury residuals was denied, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. The evidence received since the October 1975 rating decision, with regard to the claim of entitlement to service connection for left knee injury residuals, is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been received which is sufficient to reopen a previously denied claim of entitlement to service connection for a left knee injury The veteran is seeking entitlement to service connection for left knee injury residuals. Implicit in his presentation is the contention that he has submitted new and material evidence that is sufficient to reopen this claim, which was finally denied by the RO in October 1975. As is discussed elsewhere in this decision, the issue of the veteran's claim of entitlement to an increased rating for service-connected lumbosacral strain is being remanded for further development. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Thereafter, the Board will discuss the issues on appeal. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). With respect to the issue of whether new and material evidence has been received which is sufficient to reopen the previously-denied claims of entitlement to service connection for heart disease or systolic ejection murmur, the VCAA is applicable to the extent indicated immediately below. Notice The VCAA requires 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 VA 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. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. In addition, in the recently decided case Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (the Court) specifically addressed VCAA notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. After careful review, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. As will be discussed in greater detail below, the veteran has been amply apprised of what was required to establish his claim of entitlement to service connection. Moreover, a February 2002 letter from the RO specifically apprised the veteran as to what constitutes new and material evidence. The February 2002 VCAA letter informed the veteran that his previous claim of entitlement to service connection for left knee injury residuals was denied and that this decision was final. He was informed that in order for VA to reconsider this issue, he must submit "new and material evidence." Specifically, he was advised that new evidence consists of evidence in existence that has been "submitted to the VA for the first time." Material evidence was explained as evidence that bears directly on the issue for consideration. The February 2002 VCAA letter further informed the veteran that the evidence cannot simply be cumulative of the evidence that was previously of record or evidence that tends to reinforce a previously established point. The Board notes that this language complies with the holding of the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). See also 38 C.F.R. § 3.156 (2007). Further, in the February 2002 VCAA letter, the veteran was informed that to establish entitlement to service connection, the evidence must show: 1. An injury in military service, or a disease that began in or was made worse during military service, or an event in service causing injury or disease. 2. A current physical or mental disability. 3. A relationship between your current disability and an injury, disease, or event in military service. As will be discussed in greater detail below, the veteran was previously denied service connection for left knee injury residuals primarily because the medical evidence of record failed to show a current disability. By informing the veteran of the need to submit evidence of "a current physical or mental disability" the February 2002 VCAA letter specifically advised the veteran to provide information to fill the prior gap in the evidence. See Kent, supra. The veteran was informed by the February 2002 VCAA letter that VA would "make reasonable efforts to help you get evidence necessary to support your claim." The veteran was specifically informed that VA would help the veteran obtain records from other Federal agencies. With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non- Federal medical records. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The Board notes that the February 2002 letter specifically informed the veteran: "It's still your responsibility to support your claim with appropriate evidence." Furthermore, a March 20, 2006 notice letter stated "If you have any information or evidence that you have not previously told us about or given to us . . . please tell us or give us that evidence now." This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-mentioned March 2006 letter which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, the VCAA appears to have left intact the requirement that an appellant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. He exercised the option of a personal hearing and was afforded one in January 2008 as detailed in the Introduction.. Accordingly, the Board will proceed to a decision. Pertinent law and regulations Service connection - In general A disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2007)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the veteran's claim to reopen was initiated in October 2001, the claim will be adjudicated by applying the revised section 3.156. The revised regulation provides that 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, related to an unsubstantiated 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. See 38 C.F.R. § 3.156(a) (2007). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). Factual background At the time of the October 1975 RO decision, the evidence of record included the veteran's service medical records. Those records indicate, in pertinent part, that a January 1969 separation examination from the veteran's first period of military service indicated that the veteran had had "locked knee-after trauma" with no sequelae. During his second enlistment, the veteran was treated for a small laceration above the left knee in December 1972. During his June 1975 separation examination the veteran stated that he had occasional loss of feeling below his left knee. No knee disability was diagnosed. The veteran filed a claim of entitlement to service connection for a left knee disability immediately upon leaving military service. Of record at the time of the RO's October 1975 rating decision was an August 1975 VA examination report which found no evidence of a left knee disability. The October 1975 RO decision denied service connection for left knee injury residuals based on the lack of medical evidence establishing a current disability and (by implication) a lack of evidence establishing a medical nexus to service [Hickson elements (1) and (3)]. The veteran was informed of that decision in a October 23, 1975 letter from the RO. He did not initiate an appeal. Additional evidence received since the October 1975 decision will be referred to below. Analysis The unappealed October 1975 RO rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2007). As explained above, the veteran's claim for service connection for left knee injury residuals may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e., after October 1975) evidence raises a reasonable possibility of substantiating the veteran's claim. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In this case, the veteran's claim was denied by the RO in 1975 because elements (1) and (3) were missing. The evidence associated with the veteran's claims file since October 1975 includes the veteran's service personnel records, VA outpatient treatment records, letters from the veteran and a copy of the January 2008 hearing transcript. With respect to the veteran's service personnel records, 38 C.F.R. § 3.156(c) provides: "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claim, VA will reconsider the claim . . .." In this case, while the additional service personnel records existed prior to the RO's October 1975 rating decision, and were added to the veteran's claims file in September 2003, they are not "relevant" to the veteran's claim as is required by the regulation. Specifically, the veteran's service personnel records detail the veteran's record of assignments and location of service, they do not address the veteran's left knee in any way. The additional service personnel records do not address the missing Hickson element (1), current disability, or (3), medical nexus, and do not relate to a previously unestablished fact. Accordingly, the newly added service personnel records cannot be used to reopen the veteran's claim. The newly added VA outpatient treatment records include a diagnosis of deep vein thrombosis of the left lower extremity with complaints of left knee pain. See, e.g., an April 27, 2006 VA treatment note. This evidence is not new and material because it does not describe any left knee injury residuals but rather identified a vascular disorder. Thus, the additionally added medical evidence does not establish a previously unsubstantiated element of the veteran's claim, namely, the existence of a current left knee disability. With respect to the previously unestablished Hickson element (3), the veteran has not submitted any evidence establishing a relationship between his currently diagnosed deep vein thrombosis and his military service. This element also remains lacking. To the extent that the veteran has once again opined that there is a connection between his military service and any left knee injury residuals, such is duplicative of his contention in 1975. Moreover, it is now well established that lay persons without medical training, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities. In Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." The evidence which has been presented since the October 1975 RO decision therefore does not raise the reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2007). The claim accordingly cannot be reopened, and the benefit sought on appeal remains denied. ORDER New and material evidence has not been received which is sufficient to reopen a previously denied claim of entitlement to service connection for left knee injury residuals. The claim is not reopened, and the benefit sought on appeal remains denied. REMAND 2. Entitlement to an increased rating for service-connected lumbosacral strain, currently evaluated as 20 percent disabling. The veteran's last VA examination to evaluate the veteran's service-connected back disability was conducted in May 2006. During the January 2008 hearing, the veteran contended that back disability had increased in severity since his last examination. Since the veteran has alleged that his disability has increased in severity since his last examination and that the evidence does not adequately address the current state of his service-connected disability, the Board finds that an additional examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. Accordingly, the case is REMANDED for the following action: 1. VBA should make arrangements for the veteran to be examined by an appropriate specialist for the purpose of addressing the current severity of his service- connected back disability. The veteran's VA claims folder should be reviewed by the examiner. The examination report should set fort all objective findings regarding the veteran's back disability including, if possible, range of motion measurements. If diagnostic testing and/or specialist consultations are deemed by the examiner to be necessary, such should be accomplished. A report of the examination should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claim of entitlement to an increased disability rating for lumbosacral strain. If the benefit sought on appeal remains denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs