Citation Nr: 1126938 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 09-06 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for post-polio syndrome (previously characterized as poliomyelitis). 2. Entitlement to service connection for bilateral knee disability, including as secondary to service-connected bilateral pes cavus. 3. Entitlement to service connection for bilateral hip disability, including as secondary to service-connected bilateral pes cavus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active military service from November 1970 to January 1973. These matters come before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Fargo, North Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). The matters were previously before the Board in February 2010, at which time they were remanded to address due process concerns. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2009. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. By a rating decision in February 2002, the RO denied service connection for poliomyelitis. The Veteran was notified of his right to appeal, but a timely appeal was not filed. 2. Evidence added to the record since the February 2002 rating decision considered in conjunction with the record as a whole, is new, but does not relate to an unestablished fact necessary to substantiate the Veteran's claim and does not raise a reasonable possibility of substantiating the Veteran's claim. 3. Bilateral knee disability was initially demonstrated years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability. 4. Bilateral hip disability, to include arthritis, was initially demonstrated years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The February 2002 RO decision, which denied service connection for poliomyelitis, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2010). 2. New and material evidence has not been received to reopen the Veteran's claim for entitlement to service connection for poliomyelitis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. Bilateral knee disability was not incurred in, or aggravated by, active service, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 4. Bilateral hip disability, to include arthritis, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought. In Kent v. Nicholson, 20 Vet. App 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant 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. Further, in providing instruction as to what information would be considered "new and material", the Court indicated that "material" evidence would include (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. "New" evidence would be considered new only if it had not been submitted previously to VA and was neither "cumulative nor redundant" of evidence already in the record. The agency of original jurisdiction (AOJ), issued a VCAA notice letter to the appellant in October 2008, prior to the initial adjudication of the claims, that informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence and notified him that a disability rating and effective date will be assigned in event of award of any benefit sought per Dingess/Hartman. The Veteran was also informed of what new and material evidence could be submitted to reopen his claim for service connection for poliomyelitis, what type of evidence would qualify as "new" evidence, and per the requirements set forth in Kent, specifically informed him of what evidence would be necessary to substantiate the element or elements required to establish the claim that were found insufficient in the previous denial. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, and a VA examination report. Additionally, the claims file contains the Veteran's statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The record does not show that the Veteran has been provided a VA examination or opinion with respect to his new and material evidence claim. However, the Board notes that VA does not have a duty to provide a VA examination if the claim is not reopened, which is the case in the decision below. The VCAA explicitly states that, regardless of any assistance provided to the claimant, new and material evidence must still be submitted to reopen a claim. 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). A VA examination and opinion with respect to the issues on appeal were obtained in December 2008. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and opinion obtained in this case are more than adequate, as they are based on detailed and thorough physical examination and the examiner provided a well-supported rationale for his opinion. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion, with respect to the hip and knee issues, has been met. 38 C.F.R. § 3.159(c) (4). Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. If all of the evidence is in relative equipoise, the benefit of the doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). New and Material Evidence In the absence of clear and unmistakeable evidence, a decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In general, a decision of the Board is final and binding on the veteran if not timely appealed. 38 U.S.C.A. § 7104 (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is received the claim shall be reopened and the former disposition of the claim reviewed. See also 38 C.F.R. § 3.156(a). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). VA promulgated amended regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). There was a new provision, 38 C.F.R. § 3.156(a), which redefined the definition of "new and material evidence." This provision is applicable only for claims filed on or after August 29, 2001. The Veteran filed his claim to reopen in October 2008. Therefore, the Board finds that the post August 29, 2001 standard of review should be applied. "New" evidence is existing evidence not previously submitted to agency decision makers. " 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a)(2010). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2010). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). 1. New and Material Evidence-Post-Polio Syndrome (previously characterized as poliomyelitis The Veteran asserts that new and material evidence has been submitted to reopen his claim for entitlement to service connection for post-polio syndrome. In a February 2002 rating decision, the RO denied the Veteran's claim for entitlement to service connection for poliomyelitis on the basis that such condition existed prior to service and there was no evidence that the condition permanently worsened as a result of service. No appeal was taken from that determination, and there has been no allegation of clear and unmistakeable evidence in that regard. As such, it is final. 38 U.S.C.A. § 7105. The evidence of record at the time of the February 2002 RO denial included the Veteran's service treatment records which show that the Veteran had polio when he was seven years old, for which he underwent treatment for one year and that he had had progressive problems with his feet since that time. The evidence of record at that time also included VA outpatient treatment records which show that the Veteran had a history of polio and was diagnosed with poliomyelitis and post polio syndrome, with resultant transient quadriparesis and mild recurrent weakness and muscle atrophy. The evidence also included a January 2002 VA examination report in which the examiner concluded, based on his review of the available records and by performance of a physical examination, that it was less likely than not that the Veteran's post-polio syndrome was aggravated by military service. The evidence received since the final February 2002 RO decision includes VA and private outpatient treatment records dated between 2006 and 2009 which show that the Veteran has been diagnosed with, and treated for post-polio syndrome/post poliomyelitis syndrome, which has been manifested by weakness in his legs. The additional evidence also includes a December 2008 VA examination report in which the examiner opined that the Veteran's bilateral knee and hip disabilities are due to his post-polio syndrome. The Veteran also submitted an internet article pertaining to post-polio syndrome. This additional evidence is new because it was not of record at the time of the prior final RO denial in February 2002. However, this evidence is cumulative and duplicative of prior evidence of record which shows that the Veteran has post-polio syndrome. Moreover, this evidence is not material because when considered by itself, or with previous evidence of record, does not raise a reasonable possibility of substantiating the claim. Further, with respect to the statements of the Veteran, the Board acknowledges that he is competent to provide statements as to his observations. However, while statements of a Veteran are presumed credible for the purpose of establishing new and material evidence, the statements are not new and are essentially cumulative of the Veteran's assertions of record at the time of the February 2002 RO decision. Also, the Veteran is not competent to offer an opinion as to a medical diagnosis or medical causation. As such, the additional statements by the Veteran are also not material evidence. See Pollard v. Brown, 6 Vet. App. 11 (1993) (lay assertions, even if new, still would not be material evidence); Moray v. Brown, 5 Vet. App. 211, 214 (1993) (implicitly holding that if lay assertions of medical causation will not suffice initially to establish a plausible basis for the claim, then it necessarily follows that such assertions cannot serve as a predicate to reopen a claim). Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran's claim for service connection for post-polio syndrome. 2. Service Connection-Bilateral Knees and Hips The Veteran asserts that service connection is warranted for bilateral knee and hip disabilities. He specifically contends that such conditions are secondary to his service-connected bilateral pes cavus. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct incurrence basis, the Board need not, sua sponte, consider and discuss that theory. Therefore, the Board will not discuss direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). In order to establish service connection on a secondary basis the evidence must show (1) that a current disability exists and (2) that the current disability is proximately due to, the result of, or aggravated by, a service-connected disability. The record reflects that the Veteran is currently service connected for bilateral pes cavus. With respect to a current disability, a December 2008 VA examination report establishes that the Veteran has been diagnosed with bilateral knee patellofemoral disease and bilateral hip degenerative joint disease. However, the medical evidence of record does not establish that such conditions are proximately due to, the result of, or aggravated by the Veteran's service-connected bilateral pes cavus. In fact, the examiner from the Veteran's December 2008 VA examination, opined that such conditions are due to the Veteran's post-polio syndrome, which the Board notes is not service-connected. In reaching his conclusion, the examiner, who indicated that his opinion was based on the Veteran's history, a physical examination, a review of the medical literature, and a review of the Veteran's medical records, indicated: [The Veteran's] description of the weakness in the extremities is classic description of the post polio syndrome and his exam is consistent with that diagnosis. Therefore the bilateral hip and knee problems are less likely as not caused by or a result of his pes cavus. The Board finds that the aforementioned VA opinion to be competent, highly probative medical evidence as to whether the Veteran's current bilateral knee and hip disabilities were either caused or aggravated by his service-connected diabetes mellitus. Therefore, in the absence of any evidence to the contrary, the Board concludes that the Veteran's bilateral hip and knee disabilities were not caused or aggravated by his service-connected bilateral pes cavus. Thus, the preponderance of the evidence is against a grant of service connection on a secondary basis. In order to establish service connection on a presumptive basis, the Veteran's arthritis must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of service. In this case, there is no evidence that the Veteran's arthritis manifested itself to a compensable degree within one year of his separation from service. Hence, the Board finds that evidence of record does not establish that the Veteran is entitled to service connection on a presumptive basis for his current bilateral hip arthritis. In conclusion, although the Veteran asserts that his bilateral hip and knee disabilities are related to his service-connected pes cavus, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he experienced or experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has not alleged continuity of symptomatology of his bilateral hip and knee disabilities since service. As such, the Board is not required to address the Veteran's credibility in this regard. Therefore, in the absence of any documented competent medical evidence that demonstrates that the Veteran's bilateral hip and knee disabilities are due to his service-connected bilateral pes cavus, the Board finds that the negative evidence of record, including the December 2008 VA opinion, is of greater probative value than the Veteran's statements in support of his claims. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for bilateral knee and hip disabilities, to include as secondary to service-connected bilateral pes cavus, and the claims must be denied. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for post-polio syndrome. Entitlement to service connection for bilateral knee disability, including as secondary to service-connected bilateral pes cavus, is denied. Entitlement to service connection for bilateral hip disability, including as secondary to service-connected bilateral pes cavus, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs