Citation Nr: 1007394 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-17 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for right knee patellofemoral syndrome. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left knee injury, status post total knee replacement. 3. Whether new and material evidence has been received to reopen a claim for service connection for right wrist myofascial strain. 4. Whether new and material evidence has been received to reopen a claim for service connection for status post right ankle fusion with flattened arch and foot pronation. 5. Entitlement to service connection for diabetes mellitus, type II, due to exposure to Agent Orange. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to April 1972. He also had service in the Arkansas National Guard from June 1972 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied entitlement to the benefits sought on appeal. A hearing before a Hearing Officer was held in September 2006. The Veteran also testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2009. Transcripts of the proceedings are of record. FINDINGS OF FACT 1. In a June 1977 rating decision, the RO denied service connection for right and left knee disabilities. 2. By a May 1996 rating decision, the RO denied claims for service connection for right wrist and right ankle injuries, and a petition to reopen the claim for service connection for a left knee disability. 3. Since these rating decisions, no additional evidence has been received which relates to an unestablished fact that is necessary to substantiate the Veteran's claims for service connection for bilateral knee, right wrist and right ankle disabilities. 4. Diabetes mellitus, type II was not incurred or aggravated during service, including as due to claimed exposure to Agent Orange. 5. The Veteran does not currently have a service-connected disability as the predicate upon which to establish a TDIU claim. CONCLUSIONS OF LAW 1. The June 1977 rating decision which denied service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 20.200, 20.202, 20.1103 (2009). 2. The May 1996 rating decision which denied claims for service connection for right wrist and right ankle injuries, as well as a petition to reopen the claim for service connection for a left knee disability, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 20.200, 20.202, 20.1103 (2009). 3. New and material evidence has not been received to reopen the previously denied claims. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). 4. The criteria for service connection for diabetes mellitus, type II, due to exposure to Agent Orange, are not met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 5. The criteria for an award of a TDIU are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.340, 3.341, 4.3, 4.15, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2009), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2009). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. Through VCAA notice correspondence dated from April 2004 and June 2005, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The May 2006 Statement of the Case (SOC) explained the general criteria to establish a claim for service connection, including where involving a petition to reopen a previously denied claim. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The notice correspondence also provided a claim-specific definition of "new and material" evidence with regard to the petitions to reopen the Veteran has filed. See Kent, supra. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice preceded issuance of the September 2005 rating decision on appeal, and thus comported with the standard for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran through obtaining service personnel records, and extensive records of VA and private hospitalization and outpatient treatment. The Veteran has also been provided a VA Compensation and Pension examination. As indicated in a formal memorandum to the file, the RO's measures to obtain complete VA treatment records from January 1972 to December 1997 have not been successful. All reasonable efforts to acquire these records appear to have been taken, including with receipt of negative replies from the appropriate records depositories, and the Veteran has been duly informed of the results of these records inquiries pursuant to 38 C.F.R. § 3.159(e). In support of his claims, the Veteran has provided additional private medical records, and several lay statements. He has testified during hearings before the Board, and before RO personnel. There is no indication of any further available evidence or information that has not already been obtained. The record as it stands includes sufficient competent evidence to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Petitions to Reopen Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The elements of a valid claim for service connection are as follows: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The claims as to which the Veteran presently seeks to reopen are for service connection for right knee, left knee, right wrist, and right ankle disabilities. The Board's precise characterization of these issues (e.g., as "right knee patellofemoral syndrome") simply reflects the most recent post-service medical diagnosis associated with the claimed disabilities. As indicated below, the basis upon which the RO originally denied each claim was the absence of competent evidence of a causal nexus, i.e., that which demonstrated a causal connection between a current disability claimed and military service. In a June 1977 rating decision, the RO denied original claims for service connection for both right and left knee disabilities. It was observed that service treatment records showed a single June 1971 instance of a fall down stairs followed by left knee pain, but with no fracture on x-ray or other apparent residuals. The conclusion was that the documented post-service treatment for left knee pain, as well as right knee prepatellar bursitis was not associated with an incident of the Veteran's service. The Veteran did not appeal from the RO's rating decision upon notification of it. Consequently, the June 1977 rating decision became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.202. An April 1979 unappealed RO rating decision denied a petition to reopen the claim for service connection for a left knee condition, finding that newly obtained records of VA outpatient treatment were nonetheless dated several years after service, and did not assist in establishing a left knee disorder with an origin therein. In a May 1996 rating decision, the RO denied claims for service connection for right wrist and right ankle injuries, as well as a subsequent petition to reopen the claim for service connection for a left knee condition. Regarding the right wrist, the RO observed that in October 1970 and again in April 1972 the Veteran sprained his right wrist, but that both injuries were considered acute and transitory. Meanwhile, there was a June 1989 oblique fracture of the distal ulna following service, which best explained the development of a right wrist disorder. As to a right ankle injury, the RO indicated there was no record of treatment for this during service, and hence no basis to causally link the disability claimed to service. Finally, the RO found that there was no new evidence to link a claimed left knee disorder to service, or for that matter, any medical evidence of a current left knee disorder. As with the prior rating decisions, the Veteran did not initiate an appeal, and therefore the decision in question became final on its merits. Based upon the foregoing, the June 1977 rating decision represented the denial of the original claim for service connection for a right knee disability. The May 1996 decision originally denied the claims pertaining to right wrist and right ankle disabilities. In comparison, as to a left knee disorder, the Board will consider the evidence of record since the May 1996 rating decision, as this constituted the last final denial of a petition to reopen the claim. See Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). The dispositive element of each of the claims under consideration that must be shown to warrant its reopening is that of a causal nexus between a current disability, and an incident of service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); 38 C.F.R. § 3.303(d). The Board has considered several additional items of evidence which have been associated with the claims file since the last relevant RO denials of the claims under review. There is of record the report of a December 2004 VA Compensation and Pension examination of the joints. The Veteran underwent a thorough physical examination, and a medical history review was completed. The diagnosis was of moderate to severe patellofemoral syndrome, right knee; myofascial strain right wrist, likely a result of a repetitive motion injury; and status post right ankle fusion with flattened arch and bilateral foot pronation. The VA examiner further commented that in regard to both the knee conditions and bilateral wrist condition, it was deemed less likely than not that they were worsened by military service. According to the examiner, given the minimal findings by recent x-ray of both the right wrist and knee, as well as the Veteran's work history and subjective complaints, his symptoms were more likely secondary to natural aging and overuse of both joints by past employment history. It was considered that the medical history taken as a whole did not fit with a picture of late sequelae of traumatic arthritis. The preceding medical opinion offered by the December 2004 VA examiner is clearly unfavorable on the subject of whether the bilateral knee and wrist disorders claimed have any objective relationship to military service. The examiner found other causative factors to explain the etiology of the current disabilities, apart from service. The opinion is grounded in a thorough examination and claims file review, and should be afforded probative weight for this reason. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion); Boggs v. West, 11 Vet. App. 334, 340 (1998). The report of a July 2008 VA examination pertains to reevaluation for nonservice-connected pension benefits, and also for aid and attendance/housebound status. The report denotes such orthopedic impairment as the right ankle fusion procedure and resultant loss of motion in the right ankle, and is absent discussion of long-term medical history, including as it would impact the issue of a causal nexus to service. In addition, there are voluminous records of private hospitalization and outpatient treatment primarily from the early to mid-2000s and focused on the diagnosis, monitoring and treatment of cardiovascular disease and associated manifestations of that condition. Most recently, in October 2007 the Veteran underwent procedures for placement of two stents in the area of the coronary arteries. There is generally limited reference within these extensive treatment records to instances of joint pain or dysfunction, or for that matter helping link a condition of this type to an incident of military service. To the extent there is reference to orthopedic treatment, this is limited in scope to post-service treatment, and does not address etiology in detail. For instance, the March 1994 surgical report of a right ankle fusion procedure pertains to the surgery and recovery process, and immediate findings of osteoarthritis that precipitated the need for this procedure. An April 2003 private orthopedist's report indicates a diagnosis of medial collateral ligament injury, right knee, though due to a fall one month previously, and without reference to the possible significance of any in-service injury. Records of VA outpatient treatment are dated from December 1995 through January 1997, August 2000 through December 2004, and June 2007 to December 2008. As set forth in a formal memorandum, the RO has attempted to acquire complete VA Medical Center (VAMC) treatment records for the time period from January 1972 to December 1997, and has determined that many of these records are not available for review. The extensive VA medical records which have been obtained provide reference to treatment for conditions other than the ones specifically at issue. The main exception consists of June 1996 records pertaining to right foot triple arthrodesis surgery. Notably, the associated pre-operative reports indicate a history of right and ankle trouble since 1991, precipitated by a right ankle fracture in 1990, suggesting that a resultant right ankle disorder was the outcome of post-service injury, rather than an incident of service. The Veteran's service personnel records have also been reviewed in connection with the instant matter, since received following the last RO denials of benefits. The Veteran in hearing testimony has drawn attention to the fact that he sustained a right ankle injury in service, for which he was placed on a temporary physical profile. Review of personnel records for documentation of the physical profile does not result in the findings sought. There is no other indication from the records of information that would assist in supporting the Veteran's claims. The remaining evidence on file is comprised of the Veteran's own statements and hearing testimony. The Veteran's assertions then presented are generally cumulative of the existing evidence of record. See e.g., Untalan v. Nicholson, 20 Vet. App. 467 (2006) (the presentation of new arguments based on evidence already of record as of the previous decision does not constitute new evidence). In addition, the Court has held that a claimant's lay testimony does not comprise a basis to reopen a claim where the determinative issue is that involving medical causation. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In summary, the newly received evidence does not assist in establishing that a claimed right or left knee, right wrist or right ankle disorder is causally related to an incident of the Veteran's military service. Hence, new and material evidence has not been received to reopen the previously denied claims for service connection. See 38 C.F.R. § 3.156. Absent presentation of new and material evidence, the benefit-of-the-doubt doctrine does not apply, and the petitions to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 367 (1993). Service Connection for Diabetes Mellitus The Veteran contends that he was physically present within the Republic of Vietnam for exactly one day in 1971, and indicates that upon arriving in Vietnam he was immediately informed that there was a change in his orders and he was instead to be sent to Germany. He states that he had both arrived at and departed from Vietnam in a military transport aircraft. Under applicable law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Pertinent VA law and regulations further provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a) (6)(iii). Furthermore, those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). This claim must be carefully reviewed in light of the Veteran's contentions, inasmuch as any confirmed period of duty where he was physically present in Vietnam would warrant application of the presumption of Agent Orange exposure. See 38 C.F.R. § 3.307(a) (6)(iii). Provided said exposure were established, the Veteran's current diagnosed diabetes mellitus, type II would in turn be presumptively service-connected under the provisions of 38 C.F.R. § 3.309(e). However, an objective review of the record does not disclose that the Veteran ever actually had the opportunity to directly set foot in the Republic of Vietnam. His service personnel file denotes a record of assignment with the U. S. Army Europe division (USAREUR) in Germany from March to August 1971. There is no mention of any planned or actual duty assignment in the Republic of Vietnam, or mention of any temporary duty assignment to this location. Documentation of an alleged change in orders from being stationed at Vietnam, to Germany is not on file. In addition, verification of the route taken by the military transport plane on which the Veteran ultimately was brought to Germany would not normally otherwise be available. There is no other evidence to indicate or suggest that a stopover in Vietnam occurred as described. It therefore is not possible to confirm the Veteran's assertions that he was present in Vietnam for one- day as to permit application of the presumption of Agent Orange exposure. Consequently, the claim for service connection for diabetes mellitus as premised upon such chemical exposure cannot be established. Accordingly, the claim for service connection for diabetes mellitus, type II, must be denied. The preponderance of the evidence is unfavorable on the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service- connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16 (2009). If the claimant does not meet the minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra- schedular basis. 38 C.F.R. §§ 3.321(b)(1), 4.16(b) (2009). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating the present claim, the disposition is immediately determined by the fact that the Veteran at present does not have any medical disorder adjudicated service-connected. The award of a TDIU preliminarily requires that the claimant have one or more service-connected disabilities which preclude substantially gainful employment. Hence, there is a necessary condition of at least one service-connected disability, applicable whether the case is to meet the schedular, or extraschedular provisions on when a TDIU may be granted. Here, the Board above has denied the Veteran's pending petitions to reopen claims for service connection for bilateral knee, right wrist and right ankle disorders, as well as denied an original claim for service connection for diabetes mellitus, type II. The Veteran does not presently have any other service-connected disability. It follows that there is no current service-connected disability upon which to find entitlement to a TDIU is warranted. As such, the claim for a TDIU has become a moot issue. There is no plausible legal basis to substantiate the claim, and it must therefore be denied. ORDER The petition to reopen a claim for service connection for right knee patellofemoral syndrome is denied. The petition to reopen a claim for service connection for residuals of a left knee injury, status post total knee replacement is denied. The petition to reopen a claim for service connection for right wrist myofascial strain is denied. The petition to reopen a claim for service connection for status post right ankle fusion with flattened arch and foot pronation is denied. Service connection for diabetes mellitus, type II, due to exposure to Agent Orange, is denied. The claim for a TDIU is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs