Citation Nr: 1033167 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 08-26 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim for service for bilateral pes planus. 2. Whether new and material evidence has been received to reopen the previously denied claim for service for a left knee disorder. 3. Whether new and material evidence has been received to reopen the previously denied claim for service for a right knee disorder. 4. Whether new and material evidence has been received to reopen the previously denied claim for service for a low back disorder. 5. Entitlement to service connection for a right shoulder disorder. ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from August 1979 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). This case was then Remanded by the Board in May 2010 for additional development and readjudication. The Board notes that, during portions of the pendency of this appeal, the Veteran has been represented by Disabled American Veterans, and most recently by attorney Dawn S. Wavle. In August 2010 Attorney Wavle submitted correspondence advising that she would no longer be representing the Veteran in his appeal for disability benefits. She then filed a motion to withdraw as legal representative on the grounds that the Veteran's failure to cooperate with proper preparation and presentation of the appeal made her continuation as representative impossible and unethical. The Veteran did not file a response to this motion. The Board finds that good cause has been demonstrated pursuant to the provisions of 38 C.F.R. § 20.608 and the attorney is no longer recognized as the Veteran's representative in this matter. The Board notes that the Veteran has been adequately notified of his rights to appoint representation and will assume that he wishes to continue with the adjudication of his appeal unrepresented. The record also reflects that in his August 2008 substantive appeal, the Veteran requested a personal hearing before the Board to be held at the RO (i.e., Travel Board hearing). However, he failed to appear for the hearing scheduled November 2009. In a December 2009 letter the Veteran requested a new Board hearing. That request was granted in May 2010. However, he failed to appear for the hearing scheduled for August 2010 and did not offer any explanation for such failure. Accordingly, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2009). FINDINGS OF FACT 1. Original claims for service connection for pes planus and bilateral joint knee pain were denied by the RO in rating decisions in March 1998 and June 2000 and not appealed; the June 2000 rating action is the last final denial as to both issues on any basis before the present attempt to reopen the claims. 2. An original claim for service connection for low back pain was denied by the RO in a June 2000 rating decision not appealed; this is the last final denial as to that issue on any basis before the present attempt to reopen the claim. 3. The evidence received since the June 2000 rating decision is new but does not raises a reasonable possibility of substantiating the underlying claims for service connection for pes planus, bilateral knee disorders and a low back disorder, and therefore is not material. 4. A right shoulder disorder is not shown by the evidence of record. CONCLUSIONS OF LAW 1. The June 2000 RO denial is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 4. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 5. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 6. The Veteran is not shown to have a right shoulder disorder that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pertinent Law and Regulations for New and Material Evidence The RO originally denied claims of service connection for pes planus and bilateral knee joint pain in March 1998 on the basis that the disorders existed prior to service and were not aggravated by service. The Veteran did not appeal and that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2009). In a June 2000 rating decision, the RO affirmed the denials of service connection for pes planus and bilateral knee disorders. The RO also denied service connection for a low back disorder secondary to pes planus, on the basis that the evidence failed to show a relationship between pes planus and military service. The Veteran did not appeal and that decision is final. Id. In 2007, he filed an informal claim, seeking to reopen the matters. To reopen a claim which has been previously denied and has become final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). It should be noted that the regulation pertaining to the definition of new and material evidence has been amended, effective for claims filed on or after August 29, 2001. See 38 C.F.R. § 3.156(a) (2009); 66 Fed. Reg. 45,620 (Aug. 29, 2001). Since, the Veteran's most recent request to reopen his claims was filed in 2007, the amended regulatory provisions governing new and material evidence are applicable. Consequently, the appeal will be decided under the current version of section 3.156(a), as is outlined below. According to the regulation, "new" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant. 38 C.F.R. § 3.156(a). Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Factual Background and Analysis The RO's current denial in this case is predicated upon the fact that new and material evidence has not been submitted to reopen the claims. Therefore, any "new" evidence would have to contribute toward substantiating the contention that the Veteran's pes planus, bilateral knee disorders, and low back disorder were incurred in or aggravated by military service or were otherwise associated with a service-connected disability. Evidence of record in June 2000 consisted of service treatment records (STRs), which show the Veteran's history of severe congenital pes planus and a pre-service history of injury to both knees. These records show that within months of service entrance the Veteran was evaluated for complaints of foot pain. He was also treated for complaints right knee and left knee pain variously attributed to ligament strain and strain injury to the left tibial plateau. A Medical Board report in December 1979 determined that there was no evidence that the pre-existing pes planus was aggravated beyond the normal progression by military service. In addition, there were no objective clinical findings or competent medical opinion to indicate that the Veteran had continuing disabling symptomatology as a result of the bilateral knee pain treated during service. The Veteran did not mention any specific back complaints during service and none are documented. Evidence received since the June 2000 rating decision consists of post-service treatment records dated from 2007 to 2008, which show ongoing treatment of the Veteran's various current medical conditions. Specifically these records show that in February 2007 the Veteran received custom-made shoe inserts for relief of foot pain, but do not positively link these findings to his military service. The records, while new, are not material in that they are cumulative of prior records, which reflect the Veteran has foot pain and continues to receive treatment, for such on occasion. There were few, if any mention of complaints, symptoms, or treatment for knee or back pain. In this case the evidence simply is not pertinent to the question of whether the preexisting pes planus or bilateral knee disabilities underwent an increase in severity beyond the natural progression during the Veteran's military service nor does it address whether any current bilateral knee or low back disorders are related to service or any service-connected disability (which are the pivotal issues underlying the claims for service connection). Thus, the newly received evidence does not raise a reasonable possibility of substantiating the claims. To the extent that the Veteran has offered testimony and lay statements in an attempt to establish service connection, the Board notes that such evidence essentially constitutes reiterations of the Veteran's assertions made in connection with the prior denial, and, thus, cannot be considered "new" within the meaning of 38 C.F.R. § 3.156(a). See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). However, because he is not a medical expert and is not qualified to express an opinion regarding medical causation. Thus, any statements purporting to do so cannot constitute material evidence. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For these reasons, the Veteran's unsupported assertions, even if new, cannot serve as a predicate to reopen the previously disallowed claims. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Accordingly, the Board finds that new and material evidence has not been received with regard to the Veteran's claims for service connection for pes planus, bilateral knee disorders, and a low back disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. Pertinent Law and Regulations for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background and Analysis The Veteran is seeking service connection for a right shoulder disorder. However, the primary impediment to a grant of service connection is the absence of medical evidence of a current disability. The overwhelming medical evidence indicates that the Veteran does not currently have a right shoulder disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). STRs show the Veteran did not indicate any specific right shoulder symptoms during service, and none are documented. As a result, the STRs do not affirmatively establish that a right shoulder disorder had its onset during military service. The paucity of evidence of in-service incurrence is not, however, the only shortcoming in this claim, as the post-service evidence is also negative for any medical evidence documenting complaints, findings, or treatment of a right shoulder disorder. In September 2007, the Veteran was referred to the pain clinic for complaints of radiating neck pain. Examination revealed sensitivity to palpation over the trapezius muscle of the right shoulder with mild sensitivity over the acromion process and biceps tendon. The Veteran had some popping and crackling when moving his arm. He denied numbness, tingling, and weakness of the arm and had a full range of both passive and active motion. An MRI showed mildly bulging disc at C5-6, but was otherwise negative. The examiner determined the Veteran's pain was mainly related to his biceps tendon with one of the trigger points over the trapezius muscle. The examiner did not reference any specific pathology to render a right shoulder diagnosis. In March 2008, the Veteran was evaluated for complaints of aggravated chronic neck pain, upper back and right shoulder pain, primarily from the base of neck to the shoulder. Again there was no specific right shoulder pathology. The Court has held that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Although the Veteran has complained of pain in the right shoulder area, the Board notes that the complaints of pain alone, without a finding of underlying pathology affecting the right shoulder, cannot serve as a basis of an award for service connection. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Therefore, he does not have an actual right shoulder disorder for which service connection can be granted. The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, because there was no current diagnosis of a right shoulder at the time the claim was filed, and there remains no current diagnosis of right shoulder, that holding is inapplicable. In reaching the above conclusions, the Board has not overlooked the Veteran's contentions or his statements to healthcare providers,. As to his assertions that he developed his claimed right shoulder disorder, as a result of service, the Board notes that he can attest to factual matters of which he has first-hand knowledge, e.g., pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as to the etiology of his claimed right shoulder disorder and its etiological relationship to service. His contentions are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Under the circumstances, the Board gives more credence and weight to the medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disorder. Therefore, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the STRs, which are entirely negative for right shoulder complaints or injuries and the post-service medical reports, which are silent for any pertinent complaints or treatment for many years after the Veteran's separation from service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). III. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In letters dated in October 2007 and March 2008, the RO informed the Veteran of its duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims. The March 2008 letter informed him of what constituted new and material evidence to reopen the previously denied, unappealed claims. He was informed that evidence is new if it is submitted to the VA for the first time. He was informed that material evidence must pertain to the reason the claim was previously denied. This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denials and the evidence needed to reopen the claims for service connection. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. The Veteran has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. Relevant in-service and post-service treatment reports are of record The Board acknowledges that the Veteran was not examined for the purpose of addressing his claims; however, given the facts of the case, a VA examination is not required. Specifically, under the statute, an examination or opinion is necessary to make a decision on the claim when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to the right shoulder claim. Neither the Veteran's STRs nor the post-service treatment records show evidence of a currently diagnosed right shoulder disorder. Thus, because the evidence of record is sufficient to make a decision on the claim, VA is not required to provide the Veteran with a medical examination absent a showing of a current disability and an indication of a causal connection between the claimed disability and service. The Board also noted that VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim for service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that there is no basis to find that a remand for an examination is required. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. 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, supra. VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court has held that such remands are to be avoided. See Sabonis v. Brown, supra. ORDER New and material evidence has not been received to reopen a claim for service connection for pes planus, and the appeal as to this issue is denied. New and material evidence has not been received to reopen a claim for service connection for a right knee disorder, and the appeal as to this issue is denied. New and material evidence has not been received to reopen a claim for service connection for a left knee disorder, and the appeal as to this issue is denied. New and material evidence has not been received to reopen a claim for service connection for a low back disorder, and the appeal as to this issue is denied. Service connection for a right shoulder disorder is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs