Citation Nr: 0813953 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 02-19 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for degenerative joint disease of the lower back with spasms. 2. Entitlement to service connection for right knee osteoarthritis. 3. Entitlement to service connection for left knee impingement syndrome and degenerative joint disease. 4. Entitlement to service connection for a bilateral foot disability. 5. Entitlement to service connection for degenerative joint disease of bilateral shoulders. 6. Entitlement to service connection for degenerative joint disease of bilateral hands. 7. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran served on active duty from October 1964 to October 1967. This matter is before the Board of Veterans' Appeals (Board) following a Board Decision and Remand in August 2004. This matter was originally on appeal from a rating decision dated in August 2002 of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. The issues on appeal were previously before the Board in April 2006 when they were remanded for additional evidentiary development and, with regard to the back claim, for issuance of a statement of the case. The issues of entitlement to service connection for right knee osteoarthritis, entitlement to service connection for left knee impingement syndrome and degenerative joint disease, entitlement to service connection for a bilateral foot disability, entitlement to service connection for degenerative joint disease of bilateral shoulders, entitlement to service connection for degenerative joint disease of bilateral hands and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A March 1994 rating decision denied service connection for a condition of the back to include muscle spasm; the veteran did not perfect an appeal. 2. In April 2002 the veteran sought to reopen the claim. 3. The evidence received subsequent to the March 1994 rating decision which denied service connection for a condition of the back to include muscle spasms was either duplicative of evidence previously submitted or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The March 1994 rating decision that denied entitlement to service connection for a back condition with muscle spasms is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. The evidence received since the March 1994 rating decision that denied entitlement to service connection for a back condition with muscle spasms is not new and material, and the claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was partially satisfied by way of a letter sent to the appellant in May 2002 that addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Specific to requests to reopen, as is this case, the claimant must also be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, a letter was sent to the appellant in July 2006 which included all the information required by the Kent case. The claim was thereafter readjudicated as set out in the July 2007 statement of the case. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Although the all the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a Statement of the Case issued in July 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no evidence of back injury or disease in service. There is evidence that the veteran believes he has a back disability which originated in service, however, the in-service and post-service medical records do not support this contention. Therefore, a VA examination is not warranted. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records, DD Form 214, Social Security records, private medical records, and VA medical records. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis In October 1993, the veteran submitted a statement which was construed as a claim of entitlement to service connection for a back injury. The veteran indicated that he injured his back while boxing. He reported he was the 4th Army Boxing Champion. In March 1994, the RO denied service connection, in part, for a condition of the back to include muscle spasm. The evidence of record at the time of the March 1994 rating decision which denied service connection for a back condition consisted of the service medical records, private and VA medical records, and written statements from the veteran. The service medical records did not include references to, complaints of, diagnosis of or treatment for back problems. An October 1992 Social Security decision reveals that the veteran was found to be disabled as of April 1990 a result of degenerative joint disease, osteoarthritis and residual pain status post motor vehicle accident. A private clinical record dated in December 1992 indicates the veteran reported he had been taking salicylate aspirin for rheumatoid arthritis since April 1990. He was on disability as result of an April 1990 motor vehicle accident. The veteran reported he had rheumatoid arthritis in the back. The pertinent diagnoses were degenerative joint disease and rheumatoid arthritis. VA clinical records dated in May 1993 reveal that the veteran had a past medical history of joint pain which had increased since an April 1993 motor vehicle accident. It was noted that the veteran had significant pain including in the lower back. The assessment was osteoarthritis. The report of a December 1993 VA examination reveals the veteran reported he pulled the muscles in his lower back in 1967 while boxing. He was in a motor vehicle accident in 1990 with loss of consciousness. He complained of low back pain. The pertinent diagnosis was degenerative joint disease by history. The RO denied the appellant's claim in March 1994 as it determined that the service medical records showed no problems with the veteran's back. The RO also found that a current VA examination showed the veteran to have back pain and muscle spasm but these disorders were not shown to have been incurred in or aggravated by the veteran's active duty service. The veteran was provided with a copy of the March 1994 decision and notice of his appellant rights in April 1994. He did not appeal the denial of service connection which became final in April 1995. 38 U.S.C.A. § 7105(c). In April 2002, the veteran again claimed entitlement to service connection for low back problems. Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence added to the record subsequent to the March 1994 rating decision which denied service connection for a back condition consists of service personnel records, VA medical records, reports of VA examinations, Social Security records, and copies of a photograph and boxing awards. The Board finds that none of this evidence fits the definition of "new and material evidence" as set out above. Numerous VA clinical records were received dated beginning in 1991 and 1992 which reference orthopedic problems resulting from motor vehicle accidents in 1990. A February 1992 VA clinical record reveals a lumbosacral X-ray was interpreted as showing mild L4 on 5 anterior subluxation, most likely of a degeneration etiology. No fracture was seen. Additional VA clinical records dated through the 2000's include complaints of, diagnosis of or treatment for low back problems. Significantly, none of these records links a currently existing low back problem to the veteran's active duty service. In fact, the records reinforce the RO's finding that the veteran's current back problem was not due to active duty but rather were caused by post-service motor vehicle accidents. While some of these records are new, they are not material. They do not indicate in any way that the veteran has a low back disorder which was linked to active duty service. The Court has held that additional evidence, which consists of records of post-service treatment that do not indicate in any way that a condition is service- connected, is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993). Records from Social Security indicate the veteran reported he had orthopedic problems after a motor vehicle accident in 1990. A report of examination conducted in December 1991 includes the annotation that the veteran had never been in a motor vehicle accident prior to April 1990 and never had any difficulties with his back prior to that time. A December 1992 Social Security decision reveals the veteran was found to be disabled as of April 1990 due to degenerative joint disease, osteoarthritis and residual pain status post motor vehicle accident. A private medical record dated in May 1998 indicates the veteran had degenerative joint disease and arthritic changes in the spine since approximately 1990. It was noted in the record that the veteran was being treated for multiple skeletal complaints which he felt were associated with a motor vehicle accident which occurred in May 1998. The pertinent impression was lumbosacral strain/sprain as well as degenerative joint disease and degenerative disc disease of the lumbosacral spine. A private disability evaluation conducted in March 2000 indicates the veteran's past medical history involved a car accident in 1990 which injured the veteran's back, neck and knees and a car accident in 1998 which again injured the veteran's back. The Board finds that none of this evidence from Social Security is new and material. The evidence documents current treatment for low back problems but does not link the low back problems to the veteran's active duty service in any way. The evidence is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993). Service personnel records were received subsequent to the March 1994 rating decision which denied service connection for a low back disorder. These records do not indicate in any way that the veteran injured his back while on active duty. The records are not new and material. The veteran has submitted a photo of an unidentified boxer, a picture of a basketball team and pictures of boxing awards. None of the photos specifically identifies the veteran. For purposes of determining if new and material evidence has been received, the Board will assume that the pictures depict the veteran and the boxing awards were received by the veteran. The Board finds, however, that this evidence is not new and material. The fact that the veteran was alleging that he injured his back while boxing during active duty was already of record at the time of the March 1994 rating decision which denied service connection for the back disorder. The reports of VA examinations dealt with disabilities other than the veteran's spine. These reports are also not new and material. The veteran has submitted various statements indicating that his current back problem was due to boxing while on active duty. This evidence is not new and material. The veteran's allegations that he injured his back while participating in boxing were of record at the time of the March 1994 rating decision. The Board finds that the evidence added to the record subsequent to the March 1994 rating decision which denied service connection for a back condition is either duplicative of evidence previously submitted or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for a low back condition to include muscle spasm. ORDER New and material evidence having not been received, the March 1994 RO decision, which denied entitlement to service connection for a back condition to include muscle spasms, remains final; the appeal is denied. REMAND The issues of entitlement to service connection for disabilities of the shoulders, hands, knees and feet were previously before the Board in April 2006. At that time, the Board directed that the veteran be scheduled for an examination of the knees and shoulders to determine if disabilities thereof are linked to active duty. The examiner was specifically directed to review the service medical records, as well as a December 1991 medical record and Social Security records which indicated problems with post-service motor vehicle accidents. The examiner who prepared the report of a March 2005 VA examination was asked to prepare an addendum to the examination report after review of the evidence directed by the Board. The examiner was also directed to render an opinion as to whether the December 1991 medical record altered his previous opinion linking shoulder problems to the veteran's participation in boxing while on active duty. The Board's April 2006 remand directed that, if the examiner who conducted the March 2005 VA examination was unavailable, the veteran was to be scheduled for another examination by a qualified medical professional who was to furnish the requested review and opinion. In August 2007, the veteran underwent a VA examination which was conducted by a different examiner than the one who conducted the March 2005 VA examination. The examiner who conducted the August 2007 VA examination indicated that he had reviewed the evidence in the claims file. The examiner diagnosed the presence of moderate osteoarthritis of the acromioclavicular joints of both shoulders and also severe degenerative joint disease of both knees. The examiner opined, based on information provided by the veteran, that the shoulder injuries and the knee injuries were the result of several athletic activities the veteran participated in while on active duty. Significantly, this examiner did not address, in any way, the records from Social Security and the December 1991 medical record which indicate that the veteran's current orthopedic problems were due to post- service motor vehicle accidents. The service medical records were negative as to complaints of, diagnosis of or treatment for shoulder problems and there was only one reference to a knee problem. The Board further notes there is no objective evidence of record which documents that the veteran was injured as a result of participation in sports while on active duty. The Board finds the examiner's failure to address the post-service medical evidence as directed by the Board's April 2006 remand must be rectified. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In light of the foregoing, this case must be remanded again for the actions set forth below. In April 2006, the Board also remanded the claim of entitlement to service connection for a bilateral foot disability. The Board directed that the veteran be scheduled for an examination to determine the etiology of his foot disabilities. A VA examination was conducted in August 2007. At that time, the examiner diagnosed the presence of mild flexible pes planus deformity of both feet. The examiner found, based on the veteran's self-reported history, that it was at least as likely as not that the foot disabilities were linked to the veteran's athletic activities while in the military. Significantly, however, the examiner did not address the fact that pes planus was found at the time of the veteran's entrance examination which was conducted in October 1964. Furthermore, other than the report of the entrance examination, the service medical records were silent as to complaints of, diagnosis of or treatment for any problems with the veteran's feet. There was no evidence in the service medical records indicating that the veteran was injured participating in sporting activities while on active duty. Service connection may be granted for aggravation of a preexisting injury suffered or disease contracted in line of duty. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. The Board finds that a VA examination is required to address fully the question of aggravation of preexisting conditions of the feet. Because there was preexisting pes planus noted on entry to service, there is no need to address whether the presumption of soundness is rebutted in this instance for this particular disorder. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). A VA examination is required to obtain this information. The veteran has claimed entitlement to service connection for bilateral hand disabilities. A VA examination was conducted in March 2005. Pertinent impressions from the examination were osteoarthritis of the bilateral hands and intrinsic wasting of the bilateral hands. The examiner opined that, due to the veteran's history, he found it as likely as not that the hand problems are related to the veteran's service- connected complaints. It is not apparent to the Board, however, upon what basis the opinion was made other than via the veteran's own self-reported medical history which is not supported by any objective evidence. The service medical records are negative as to any complaints of, diagnosis of or treatment for problems with the veteran's hands. The veteran has alleged that he participated in boxing during active duty which was the cause of his hand problems. However, there is no objective proof that the veteran participated in boxing while on active duty. He has submitted photographs which are undated and copies of awards which do not reference the veteran in any way. There is post-service medical evidence which indicates the veteran injured his hands after being involved in motor vehicle accident. There is also references to problems with the hands being due to rheumatoid arthritis. The Board finds that a current VA examination is required which takes into account all the evidence of record pertaining to the alleged injury to the hands during active duty and the post-service medical evidence. The veteran has claimed entitlement to SMC based on the need for aid and attendance and/or being housebound. The Board finds that this issue is inextricably intertwined with the claims of entitlement to service connection. As such, the Board will defer consideration of this issue at this time. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the record. 2. Schedule the veteran for a VA examination by an appropriately qualified health care professional to determine the nature, extent and etiology of any disabilities of the shoulders, hands and knees found on examination. The claims file must be made available to and pertinent documents therein reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. In determining the etiology of the disabilities, the examiner must address the veteran's documented medical history including evidence in the service medical records, the veteran's discharge examination, post-service evidence of motor vehicle accidents including the December 1991 medical record, as well as the post-service work history shown in Social Security records. The examiner must provide separate opinions as to whether it is at least as likely as not that any current disability of the shoulders, hands and/or knees was incurred in or aggravated by the veteran's active duty service. A rationale for any opinion expressed must be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. The veteran should be scheduled for an appropriate VA examination to determine the etiology of his current bilateral foot disability. The claims file must be made available to and pertinent documents therein reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should respond to the following: a). Is it at least as likely as not (50 percent or greater likelihood) that the veteran's preexisting foot disabilities (pes planus) increased in severity during active duty? b). If the veteran's preexisting foot condition(s) increased in severity during active duty, is it at least as likely as not (50 percent or greater likelihood) that such increase was due to the natural progression of the disorder, or if not, due to aggravation of the disorder in service? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. c). If the examiner identifies a foot condition that did not preexist the veteran's military service, the examiner should indicate whether it is at least as likely as not (50 percent or greater likelihood) that such disorder was incurred during the veteran's military service. 4. The claims should be readjudicated. If any benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. The appellant and his representative have 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs