Citation Nr: 1002897 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 07-28 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for bilateral pes planus has been received. 2. Whether new and material evidence to reopen a claim for service connection for a left knee disability has been received. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the U.S. Army Reserves, including periods of ACDUTRA from August 1987 to January 1988 and in June 1990, and a period of INACDUTRA from March 22, 1996, to March 24, 1996; and served on active duty from March 2003 to May 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from RO decisions in May and July 2006 that declined to reopen claims for service connection for bilateral pes planus and for a left knee disability on the basis that new and material evidence had not been received; and denied service connection for a right knee disability and for headaches. The Veteran timely appealed. The issue of service connection for headaches 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. In January 1989, the RO denied service connection for bilateral pes planus and for a left knee disability. 2. Evidence associated with the claims file since the January 1989 denial, when considered by itself or in connection with evidence previously assembled, does not create a reasonable possibility of substantiating claims for service connection for bilateral pes planus or for a left knee disability. 3. There is no competent evidence that the Veteran currently has a right knee disability that is related to active service. CONCLUSIONS OF LAW 1. The RO's decision in January 1989, denying service connection for bilateral pes planus and for a left knee disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2009). 2. The evidence received since the RO's January 1989 denial is not new and material, and the claims for service connection for bilateral pes planus and for a left knee disability are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. A chronic right knee disability was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through June 2005, July 2005, March 2006, May 2007, and February 2009 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed her that it would make reasonable efforts to help her get evidence necessary to support her claims, particularly, medical records, if she gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2006 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VCAA notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Failure to provide this notice is generally prejudicial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The May 2007 and February 2009 letters notified the Veteran that her previous claims for service connection for bilateral pes planus and for a left knee disability had been denied in February 1989. The RO advised the Veteran of the evidence needed to establish each element for service connection. The RO advised the Veteran of the reason for the previous denials and that once a claim had been finally disallowed, new and material evidence was required for reopening, and also told her what constituted new evidence and what constituted material evidence. These letters satisfied the notice requirements of Kent. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records. The Veteran is not entitled to an examination prior to submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii) (2009). The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Petitions to Reopen Records reflect that the RO originally denied service connection for bilateral pes planus and for a left knee disability in January 1989 on the basis that there was no evidence to establish that either disability was incurred in or aggravated during the Veteran's initial period of ACDUTRA. The evidence of record at the time of the last denial of the claims in January 1989 included the Veteran's DD Form 214; her Army Reserves treatment records; and a September 1988 VA examination report. With regard to pes planus, the Army Reserves treatment records include a December 1986 enlistment examination noting bilateral pes planus, asymptomatic, not considered disabling; and clinical notes indicating that arch supports were issued to the Veteran in September 1987. The September 1988 VA examination report includes an assessment of pes planus without spasm; X-rays of the feet at that time were within normal limits. Based on this evidence, the RO concluded that the Veteran's bilateral pes planus existed prior to service, and was not aggravated by the Veteran's period of ACDUTRA. With regard to a left knee disability, the Army Reserves treatment records reflect treatment for left knee trauma of 72 hours' duration in September 1987. Examination at that time revealed redness and swelling. There was no crepitus and no laxity; McMurray and drawer tests were negative, and range of motion was positive. The assessment was rule out patellar femoral syndrome. The September 1988 VA examination report includes the Veteran's statements that her left knee "seemed to twist" when she slipped in a pogo pit last year, and that she "just shook it" and "it went back all right"; the Veteran was able to finish training. On examination, the Veteran tended to hyperextend in the knees; there was full range of motion in the knees, including 10 degrees hyperextension. There was slight varus-valgus laxity, but the knees were not unstable. The assessment was hyperflexible joints with lax patella and history suggesting a left patellar subluxation in the past. X-rays of the left knee were within normal limits. Based on this evidence, the RO concluded that there was no evidence of a current left knee disability; and no chronic disability was diagnosed during the Veteran's period of ACDUTRA. The present claims were initiated by the Veteran in May 2005. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Bilateral Pes Planus Evidence added to the record since January 1989 includes additional service treatment records from subsequent service; private treatment records; a June 2004 VA examination report (Vol. II); Social Security records for other disorders; and a statement by the Veteran that her foot problems started "with the boots." The additional service treatment records include reports of medical history, completed by the Veteran in June 1993 and in July 1998. The Veteran checked "no" each time in response to the question of whether she ever had or now had "foot trouble." The private treatment records show treatment from 1996 to 1998 for foot problems. Assessments included hallux abducto valgus, status-post bunion, neuritis, and osteoarthritis. The report of the June 2004 VA examination reflects mild pes planus, asymptomatic. Much of the recently submitted evidence is new in that it was not previously of record. The only possibly competent evidence relating to the basis of the prior denial consists of the June 2004 VA examination report, indicating that the Veteran's pes planus is asymptomatic. This evidence relates to the basis of the prior denial-namely, that a pre-existing disability was not aggravated in service. Although the evidence relates to the basis of the prior denial, it does not create a reasonable possibility of substantiating the claim. The newly submitted evidence does not demonstrate a permanent worsening of the Veteran's pes planus either during ACDUTRA or during subsequent active duty. Nor does the evidence reflect manifestations of increased disability in the years immediately following active duty. The June 2004 VA examination report showing that the pes planus is asymptomatic does not support a finding of aggravation in service. Hence, no increase in the Veteran's disability is shown during service; and the evidence, thus, is not material for purposes of reopening the claim. Records show that the Veteran reported no foot trouble in 1993 and in 1998. In an August 2007 statement, the Veteran contends that her foot problems started with wearing boots in service. The Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Her statements, which essentially argue that her pes planus increased in severity during service, is cumulative to evidence already of record. The facts that she had foot pain when wearing boots and arch supports were issued during ACDUTRA were already established. See September 21, 1987 Army Reserves treatment record reflecting issuance of arch supports. Absent new evidence of service incurrence or aggravation of pes planus in service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for bilateral pes planus is not reopened. Left Knee Disability Evidence added to the record since January 1989 includes additional service treatment records from subsequent service revealing no left knee trauma; private treatment records; VA treatment records; a June 2004 VA examination report (Vol. II); Social Security records for other disorders; and statements by the Veteran. The private treatment records reflect that the Veteran was involved in a motor vehicle accident in October 2003, and include an assessment of contusion and strain to the left knee. Records also include an MRI scan of the Veteran's left leg, revealing a torn meniscus as the cause of her knee pain in April 2004. The report of the June 2004 VA examination reflects that the Veteran was in a motor vehicle accident eight months ago, and hit her knee on an iron dashboard. In June 2005, the Veteran stated that she hit her left knee on the dashboard when her car was hit by two cars while sitting at a red light on October 23, 2003. VA treatment records include X-rays of the left knee, taken in August 2005, revealing no acute fracture or dislocation or degenerative changes. Records also show full range of motion of the left knee in August 2005; and include diagnoses of fibromyalgia in February 2006 and left knee arthralgia in December 2006. Records reflect that the Veteran underwent left knee arthroscopy in October 2007, and include an assessment of chronic left knee pain in January 2009. X-rays taken of the left knee in March 2009 revealed a mild juxta- articular sclerosis of the patellofemoral joint, and a slight lateral patellar tilt. A VA physician then noted left knee arthrosis/chondromalacia, patellofemoral. In August 2007, the Veteran stated that her knees started given her problems when she had to "climb up in the big trucks." The Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran has offered statements and contentions in which she argued that her left knee disability had its onset in service. The Veteran, as a lay person, would not be competent to render a probative opinion on a medical matter, such as the etiology of any current left knee disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Much of this evidence is new in that it was not previously of record. What is missing to award service connection is evidence that links a current left knee disability to an in- service incident-for example, the left knee trauma of 72 hours' duration noted in September 1987-or to a continuity of symptomatology of a left knee disability since the in- service incident. The newly submitted evidence does not link a current left knee disability with service. Hence, the evidence is not material for purposes of reopening the claim. The newly submitted evidence also reflects that the Veteran injured her left knee in a motor vehicle accident on October 23, 2003. There is no indication in the claims file, nor has the Veteran alleged, that she was serving on active duty, ACDUTRA, or INACDUTRA on the date of the motor vehicle accident. On VA Form 21-4176, submitted in July 2005, the Veteran reported that she was not on military duty at the time of the accident. The Veteran's general statements to the effect that current left knee disability is related to service are cumulative to statements made previously and not new and material. Absent evidence of a nexus between the currently shown left knee disability and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a left knee disability is not reopened. III. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2009). As noted above, the Veteran contends that her knees started giving her problems when she had to "climb up in the big trucks." The Army Reserves treatment records do not reflect any findings or complaints of right knee pain or right knee disability during the Veteran's period of ACDUTRA from August 1987 to January 1988. X-rays taken of the Veteran's right knee in September 1988 were within normal limits. The service treatment records for the Veteran's period of active duty from March 2003 to May 2003 do not reflect any findings or complaints of right knee pain or right knee disability. There is no evidence of arthritis manifested to a compensable degree within the first post-service year, to warrant service connection for arthritis of the right knee on the basis of presumptions referable to chronic diseases. The report of the June 2004 VA examination reflects that the Veteran was in a motor vehicle accident eight months ago, and that she hit her knee on an iron dashboard. Again, the Veteran was not on active service at the time of the accident. While the Veteran reported pain in her right knee in May 2005, an MRI scan of the right knee at that time was normal. X-rays taken in August 2005 revealed no acute fracture or dislocation, and no degenerative changes of the right knee. There was full range of motion at that time. Records include an assessment of fibromyalgia in February 2006. X-rays taken in October 2006 revealed no abnormality of the right knee. While the Veteran is competent to describe any right knee pain that occurred in service, her claim is contradicted by contemporaneous service treatment records reflecting no injury or treatment of the right knee during service. Moreover, there is no convincing, competent evidence establishing a continuity of symptomotology of right knee disability following military service. Pain is not analogous to disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability. On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted. Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.) Without evidence of underlying disability associated with the complaints of pain, there is no basis for a grant of service connection. In this case, there is no competent evidence of current right knee disability and certainly none that can be linked to service. A clear preponderance of the evidence is against a finding that the Veteran has a right knee disability that either had its onset during service or is related to her active service. Thus, service connection for a right knee disability is not warranted. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has not been received; the claim for service connection for bilateral pes planus is not reopened. New and material evidence has not been received; the claim for service connection for a left knee disability is not reopened. Service connection for a right knee disability is denied. REMAND The Veteran contends that her headaches had their onset in service, from wearing a helmet. She is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Records include an assessment of muscle contraction headaches during a period of ACDUTRA in June 1990. During INACDUTRA in March 1996, the Veteran reported experiencing pressure around temples of her head while wearing a Kevlar helmet. Her headache persisted throughout the night and still occurred in the morning with blurred vision. The report of a June 2004 VA examination reflects that the Veteran experienced post-traumatic headaches due to a motor vehicle accident eight months earlier. The Veteran was not on active service at the time of the accident. VA treatment records, dated in June 2005, include an assessment of headaches, most likely muscle contraction headache. In August 2005, a VA physician indicated that the Veteran's headaches appear to be due to musculoskeletal pain. While a layperson is certainly capable of providing evidence of symptomatology, a layperson is generally not capable of opining on matters requiring medical knowledge or expertise, such as the condition causing the symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) and Stadin v. Brown, 8 Vet. App. 280, 284 (1995). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training." 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2009) (emphasis added). Under these circumstances, the Board finds that an examination is needed to obtain an informed medical opinion as to the likely etiology of the Veteran's current headaches, to include whether the initial onset occurred during ACDUTRA or if the disease is otherwise related to her active duty; or is a residual of a head injury during INACDUTRA-to specifically include wearing a helmet in March 1996. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2009). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of headaches and the likely etiology of the disease or injury. The claims file must be made available to the examiner for review. The examiner is requested to determine: (a) Whether it is at least as likely as not (50 percent probability or more) that any such disability either had its onset in ACDUTRA, or is the result of disease or injury incurred or aggravated during active service-to specifically include the in-service assessment of muscle contraction headaches in June 1990, or other incident in service; and (b) Whether it is at least as likely as not (50 percent probability or more) that any such disability is a residual of a head injury during INACDUTRA-to specifically include wearing a helmet in March 1996. If other causes are more likely, those should be noted. The examiner should reconcile any opinion with the Army Reserves treatment records (described above), and with the post- service treatment records in the claims file-including those of the October 23, 2003 motor vehicle accident. The examiner should provide a rationale for the opinions. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 2. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. The Veteran 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. 2009). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs