Citation Nr: 0814082 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 07-05 132 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a left knee disability. 2. Entitlement to a compensable disability rating for scars of the right thigh and right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 determination by the Department of Veterans Affairs Regional Office in St. Petersburg, Florida. The veteran is currently service-connected for a right knee disability, for which claims for increased ratings were filed alongside the two claims currently before the Board. However, the increased rating claim for the right knee was most recently decided in an August 2005 rating decision by the RO. The veteran did not appeal that rating decision, therefore the issue of the right knee disability is not before the Board at this time. FINDINGS OF FACT 1. In February 1988, the Board denied the veteran's claim of service connection for a left knee disability secondary to the service-connected right knee disability. Following proper notification that month, an appeal of the denial of service connection was not received within one year. 2. Evidence received since the February 1988 decision that pertains to the veteran's claim for a left knee disability is new and material. 3. The competent evidence, overall, demonstrates that the veteran's left knee disability is related to the service- connected right knee disability. 4. The veteran's scars on his right knee and right thigh are not unstable, do not cover an area exceeding six square inches, and are not painful on examination. CONCLUSIONS OF LAW 1. The February 1988 Board decision that denied the veteran's claim for service connection for a left knee disability is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2007). 2. New and material evidence to reopen a claim for service connection for a left knee disability has been submitted and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. Service connection for a left knee disability, secondary to the service-connected right knee disability, is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 4. The criteria for a compensable rating for scars of the right thigh and right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is service-connected for a right knee disability incurred in service. The veteran's right knee has been the subject of several surgeries, beginning with an operation to repair a gunshot wound to the right thigh in February 1967, and most recently a total knee replacement in April 2004. The veteran contends that the injuries to his right knee caused him to alter his gait to favor the right leg, which he attests impacted the left knee and caused the current disability to the left knee. The veteran also states that the service-connected scars from the wounds and multiple surgeries to the right knee and thigh merit a compensable rating. 1. Left knee disability The Board denied the veteran's claim for service connection for a left knee disability secondary to the service-connected right knee disability in a February 1988 decision. A letter dated that month gave the veteran notice of this denial and his appellate rights, but he did not initiate an appeal. Therefore, that Board decision is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The veteran filed his current petition to reopen in October 2003. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must assess the new and material evidence in the context of the other evidence of record and make new factual determinations. See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet. App. 210, 215 (1991)). A finding of "new and material" evidence does not mean that the case will be allowed, just that the case will be reopened and new evidence considered in the context of all other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet. App. 178, 179-80 (1991). The veteran asserts that his service-connected right knee disability has affected his left knee by favoring his right knee and thereby putting extra strain on the left leg. The original rating decision for this claim was issued in September 1986. The evidence submitted in support of the original claim included a July 1986 VA examination in which the examiner diagnosed early degenerative changes in the medial compartment of the left knee, commenting that "the favoring of the right leg has affected the left knee". The Board's February 1988 denial of the claim stated that it could not find the evidence persuasive that a causal connection existed between the left knee problems and the service-connected right knee. Evidence of record since the Board's February 1988 decision includes VA treatment records indicating degenerative changes in the left knee, as well as private medical records indicating arthroscopy of the left knee following a tear of the lateral menicus and medial meniscus in July 2004. For reasons which will become clear below, under the requirements stated above for reopening claims, the VA and private medical records are considered new and material evidence. The claim for service connection for left knee disability is therefore reopened. With regard to the issue of service connection, except as provided in 38 C.F.R. § 3.300(c), pertaining to secondary service connection for ischemic heart disease or other cardiovascular disease based on the effects of tobacco products, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The addition of 38 C.F.R. § 3.310(b) effective as of October 10, 2006, does not affect the consideration or the outcome of this case. This new paragraph was added to implement a decision of the United States Court of Appeals for Veterans Claims (Court) in the case of Allen v. Brown, 7 Vet. App. 439 (1995). The holding in that case has been binding on VA since it was issued in 1995. Thus, the regulatory provisions added by 38 C.F.R. § 3.310(b) simply conform VA regulations to the court's decision, the holding of which has been applicable during the entire period of this appeal. To fulfill the burden of proof for secondary service connection, the medical evidence must demonstrate that the current disability was at least as likely as not (a 50 percent probability) caused by, or a result of, the service- connected injury or disease. The evidence in this claim includes several examiners' opinions regarding the cause of the veteran's left knee disability. The first was the VA examination in July 1986, described above, in which the examiner stated "the favoring of the right leg has affected the left knee". Since that original opinion, the veteran was afforded another VA examination in March 2004. The examiner diagnosed left knee strain and an X-ray showed minimal degenerative joint disease characterized by narrowing of the medial compartment. The March 2004 examiner opined that the left knee strain could not be related to the right knee without the resort to speculation, providing evidence against this claim. In April 2004, the veteran underwent a total knee replacement of the right knee, which required 13 months of convalescence including eight weeks of physical therapy. In July 2004, the veteran was using a stationary bike in the rehab clinic when the bike's chain or belt broke and his left leg "went down", causing a shooting pain. The diagnosis was a tear to the medial meniscus and a tear to the lateral meniscus of the left knee, for which the veteran had arthroscopic surgery to repair the left knee. The veteran's orthopedic surgeon, Dr. "A.", performed both the April 2004 and the July 2004 surgeries. Dr. A submitted a prescription note in July 2004 stating, "left knee condition is directly related to right knee condition - left knee was injured while rehabilitating right knee." Such a fact clearly supports this claim that one problem, or the efforts to repair this problem, has caused another problem. A VA outpatient treatment record from September 2007 includes the treating physician's statement "patient left knee pain is related to his right knee pain". The Board also finds that the medical evidence is consistent with the veteran's statements that his service-connected right knee disability has caused his left knee disability. Because there is an approximate balance of positive and negative evidence, the benefit-of-the-doubt standard applies. 38 U.S.C.A. § 5107(b). Reasonable doubt as to the origin of the veteran's left knee disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Accordingly, the appeal is granted. 2. Scars of the right thigh and right knee The veteran is service-connected for scars of the right thigh and right knee incurred from a gunshot wound to the right knee in February 1967 and multiple surgeries to the right knee. The current evaluation is zero percent. The veteran contends that his scars cause a "tugging sensation", and pain upon movement. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. This is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski , 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under the Rating Schedule, scars are evaluated by application of Diagnostic Codes 7801, 7802, 7803, or 7804. Under these codes, a 10 percent disability rating is awarded for scars that are deep or cause limited motion if the area exceeds 6 square inches (DC 7801); for areas of 144 square inches or greater for scars that are superficial and do not cause limited motion (DC 7802); for unstable superficial scars, meaning there is a frequent loss of covering of skin over the scar (DC 7803); or for superficial scars that are painful upon examination (DC 7804). A rating decision in April 2004 granted service connection for scars of the right thigh and right knee after they were noted on a VA examination in March 2004. The veteran has asserted that he merits a compensable rating for this disability. The veteran has been afforded two VA examinations that addressed the scars to the right leg. In March 2004, the examiner noted that the scar on the thigh is nontender, with no oozing or discharge. In May 2005, the examiner noted five scars, none painful to palpation. The results above, as well as the opinions of the VA examiners, provide evidence against this claim, clearly indicating that the higher criteria is not met for any of the Diagnostic Codes for scars. In summary, the schedular criteria for the 10 percent rating for scars of the right thigh and right knee are not met, and such rating is not warranted. The facts and examinations cited above provide negative evidence against the veteran's claim and show that his scars do not meet any of the diagnostic criteria for a 10 percent evaluation. Upon a complete review of the evidence of record, the Board finds no basis to award a compensable disability rating for the veteran's scars of the right knee and right thigh. 38 C.F.R. § 4.7. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. Accordingly, the Board finds that the preponderance of the evidence is against a compensable rating for scars of the right thigh and right knee. 38 C.F.R. § 4.3. Duty to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in December 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims 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 her or his possession to the AOJ. The Board is aware of the Court's recent clarification of VCAA notice required for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In the instant case, the veteran disagreed with the initial rating assigned for his scars and did so within one year of the initial decision that granted service connection. Although the issue before the Board is whether the veteran's scars are properly rated, the appeal arises from a claim for entitlement to service connection, not an increased rating claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). VCAA notice is triggered by receipt of the claim, or application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated: section 5103 (a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). From this statement, it follows that the notice requirements triggered by VA's receipt of a claim to establish service connection, such as in the instant case, differs in content from notice in response to a claim seeking a higher evaluation for a disability for which service connection has already been established. In Wilson, the Federal Circuit specifically rejected the argument that section 5103(a) notice requirements were altered by the filing of a notice of disagreement. Id. at 1058-1059. In the instant case, VCAA notice requirements were satisfied because the RO provided the veteran with the notice applicable to a claim to establish service connection. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, rebutting any presumption of prejudice. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA 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. 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 VA treatment records through September 2007. The veteran submitted private treatment records from Dr. A, and was provided an opportunity to set forth his contentions during the Travel Board hearing before the undersigned Veterans Law Judge in October 2007. The appellant was afforded VA medical examinations in March 2004 and May 2005. 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). ORDER The appeal to reopen a claim of service connection for left knee disability is granted. Service connection for left knee disability secondary to the service-connected right knee disability is granted. A compensable rating for scars of the right thigh and right knee is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs