Citation Nr: 1236588 Decision Date: 10/23/12 Archive Date: 11/05/12 DOCKET NO. 08-27 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a compensable rating for ingrown toenails, right toes with surgery, prior to May 16, 2007. 2. Entitlement to a rating in excess of 20 percent for ingrown toenails, right toes with surgery, from May 16, 2007. 3. Entitlement to service connection for status post total left hip arthroplasty, claimed as a left hip disability. 4. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability. 5. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability. 6. Whether new and material evidence has been received to reopen a claim for service connection for hepatitis C. 7. Entitlement to service connection for a right knee disability. 8. Entitlement to service connection for a left knee disability. (The issues of whether new and material evidence has been submitted to reopen a claim for service connection for a back disability, entitlement to service connection for a peptic ulcer disability, claimed as secondary to non-steroidal anti-inflammatory drugs, entitlement to service connection for hearing loss disability and entitlement to service connection for tinnitus will be the subject of a separate Board decision.) ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1967 to July 1971. He also served as a member of the Oklahoma Air National Guard for periods from October 1972 to March 1993. During that time he had verified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2007 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto, Rico. The Veteran requested a hearing at the RO before a Decision Review Officer in his June 2009 notice of disagreement. However, he subsequently informed VA in a March 2010 telephone contact that he wished to cancel this hearing request and have his appeal continue to the Board. 38 C.F.R. § 20.704(e). The issue of increased ratings for ingrown toenails, right toes with surgery, and the underlying issues of entitlement to service connection for right and left knee disabilities are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Total left hip arthroplasty (claimed as a left hip disability) was not present during the Veteran's active service or for many years thereafter. The appellant's post-service total left hip arthroplasty is not related to his periods of recognized service. 2. In a May 2002 rating decision, the RO denied the claim for entitlement to service connection for a right knee disability. The Veteran did not appeal this decision. 3. Evidence received since the May 2002 decision relates to the basis of the prior denial for service connection for a right knee disability. 4. In a May 2002 rating decision, the RO denied the application to reopen the claim for service connection for a left knee disability. The Veteran did not appeal this decision. 5. Evidence received since the May 2002 decision relates to the basis of the prior denial to reopen the claim for service connection for a left knee disability. 6. In a January 1999 rating decision, the RO denied the Veteran's claim for service connection for hepatitis C. The Veteran did not appeal this decision. 7. Evidence received since the January 1999 decision either does not relate to the basis of the prior denial of entitlement to service connection for hepatitis C or is cumulative. CONCLUSIONS OF LAW 1. Total left hip arthroplasty (claimed as a left hip disability) was neither incurred in nor aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2011). 2. The May 2002 decision that denied the claim for service connection for a right knee disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2011). 3. Evidence received since the May 2002 decision is new and material and the claim for service connection for a right knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 4. The May 2002 decision that denied the application to reopen the claim for service connection for a left knee disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2011). 5. Evidence received since the May 2002 decision is new and material and the claim for service connection for a left knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 6. The January 1999 decision that denied service connection for hepatitis C is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2011). 7. Evidence received since the January 1999 decision is not new and material and the claim of entitlement to service connection for hepatitis C is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 3.326(a) (2011)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a);38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.169(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, with respect to the issue of service connection for total left hip arthroplasty, claimed as left hip disability, the appellant was provided with initial notice of the VCAA in April 2009, which was prior to the May 2009 rating decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied. For purposes of evaluating the appellant's requests to reopen his claims for service connection for right and left knee disabilities and hepatitis C, the Board observes that the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), held that in regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the veteran that explains the meaning of both 'new' and 'material' evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Kent, supra. In this case, the appellant was provided specific notice of what constitutes new and material evidence with respect to his claims to reopen for service connection for right and left knee disabilities and hepatitis C and what was necessary to establish entitlement to service connection for these claimed disabilities in the April 2009 letter noted above. He was further informed of the types of evidence to submit such as medical records or medical opinions. The appellant was not deprived of an opportunity to participate in the adjudication process because he did not know what evidence was needed to reopen his claims. Thus, the Board finds that the directives of Kent are satisfied. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claim on appeal being decided herein, the Board finds that the appellant is not prejudiced by a decision at this time since the appellant was provided with notice of the disability rating and effective date elements in the April 2009 letter. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including obtaining pertinent medical records identified by the appellant. The appellant was additionally provided with the opportunity to attend a Board hearing which he initially requested, but later withdrew his request. In terms of affording the appellant VA examinations, in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In regard to the issue of service connection for left hip arthroplasty, claimed as a left hip disability, the Board notes that the Veteran has not been afforded a VA examination for this claim; however, for the reasons explained below, the requirements for affording the Veteran an examination have not been met. See McLendon, supra. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claims being decided herein and that adjudication of such claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Service Connection for Total Left Hip Arthroplasty (Claimed as Left Hip Disability) Facts The Veteran's service treatment records from his period of active duty service from July 1967 to July 1971 do not show complaints or problems with his left hip. They include his March 1971 separation examination report showing a normal clinical evaluation of the lower extremities. The Veteran denied a history of swollen or painful joints on the March 1971 Report of Medical History. In August 1971, the Veteran underwent a VA examination at which time he neither complained of nor was found to have left hip problems. A lumbar spine x-ray performed at the time revealed that the sacroiliac and hip joints were normal. The Veteran's Air National Guard Records from October 1972 to March 1993 do not show complaints or problems with the Veteran's left hip. They include various examination reports which show normal clinical evaluations of the lower extremities. In a January 2009 statement that the Veteran submitted in support of a claim for a knee disability, the Veteran reported that around the first week of November 1969 he was riding on a helicopter as a door gunner on a mission to pick up a Lieutenant Colonel and that about 30 miles outside of DaNang the helicopter took incoming fire and had to land hard which affected his knees. On file are extensive VA medical records showing that the Veteran underwent a total left hip arthroplasty in February 2009 due to left hip osteonecrosis. These records also show that this procedure was complicated by an acute deep vein thrombosis on the left. The Veteran remained hospitalized for approximately 30 days. In April 2009, the Veteran was seen at a VA walk-in clinic complaining of back and left hip pain. He was noted to have recently undergone total left hip arthroplasty (in February 2009) with on and off again pain ever since. In September 2009, the RO received evidence from the Defense Personnel Records Information Retrieval System showing that the Veteran had been assigned to the 405th Field Maintenance Squadron (FMS), 405th Fighter wing (FW), 13th Air Force, located at Clark Air Force Base, Republic of the Philippines and that the mission of the 405th Field Maintenance Squadron was to provide field maintenance support and special assistance for aircraft and aerospace ground equipment to the 405th FW. The squadron was also noted to maintain the electronic systems on deployed aircraft in the Republic of Vietnam at DaNang Air Base (AB), in Thailand, as well as other bases, and that the sources revealed that the DaNang AB suffered an attack in December 1969 when it received four rounds of enemy rocket fire. There were no U.S. Casualties reported, but there was one U.S. aircraft damaged during the attack. In a substantive appeal (VA Form 9) in November 2009, the Veteran reported that during Vietnam service in 1969 he fell off of an aircraft injuring his hip at DaNang Air Force Base. He said he reinjured his hip at Lackland Air Force Base in San Antonio, Texas. Law and Discussion Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). There must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F. 3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Id. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303,307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 20 Vet. App. 488,495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), service connection for a combat-related injury may be based on lay statements, alone, but do not absolve a claimant from the requirement of demonstrating current disability and a nexus to service, as to both of which competent medical evidence is generally required. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Every reasonable doubt shall be resolved in favor of the veteran. 38 C.F.R. § 3.102 (2011). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2011). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(c); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 C.F.R. § 101(23)(c); 38 C.F.R. § 3.6(d) (2011). Consistent with 38 U.S.C.A. § 1154(b), the Board accepts the Veteran's report in November 2009 that he fell off of an aircraft in Vietnam in 1969 and injured his left hip. While he does not specify in this statement that the incident happened in the course of combat, he did explain in a January 2009 statement he submitted in support of a knee disability claim that he was riding on a helicopter as a door gunner and the helicopter took incoming fire and had to land hard. Thus, based on the Veteran's statements and records from the Defense Personnel Records Information Retrieval System establishing that he served at DaNang AB in Vietnam at a time when the base took incoming enemy fire, and resolving any reasonable doubt in the Veteran's favor, the Board finds that his report of knee and left hip injuries arise from the same combat incident in Vietnam. 38 C.F.R. § 3.102. Although section 1154(b) relaxes an evidentiary requirement, that section deals only with the occurrence of an event, i.e., whether a particular disease or injury was incurred or aggravated in service -- that is, what happened then -- not the questions of either current disability or nexus to service, as to both of which competent evidence is generally required. See Beausoleil v. Brown, 8 Vet. App. 459 (1996). Weighing the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a left hip disability. Excluding the Veteran's report consistent with section 1154(b), a chronic left hip disability is not otherwise shown in service and arthritis is not shown within the initial post separation year. The Veteran's service treatment records for his period of active duty from 1967 to 1971 are devoid of complaints or treatment for the left hip and show that he had a normal clinical evaluation of the lower extremities at his March 1971 separation examination. Furthermore, he denied a history of swollen or painful joints on the March 1971 Report of Medical History. Also, an August 1971 VA examination report shows that the Veteran had normal hip joints by x-ray. Records from the Veteran's Air National Guard Service of Oklahoma, from 1972 to 1993, are likewise devoid of complaints or treatment for left hip problems. The first indication of left hip problems is not until many years after service, in February 2009, when the Veteran underwent left hip arthroplasty for left hip osteonecrosis. The absence of documented symptoms of left hip problems from the time of the Veteran's separation from active duty in 1971 for many years after service, his normal separation findings with respect to the lower extremities at his March 1971 separation examination, the August 1971 VA examination x-ray report showing normal hip joints, and the absence of complaints or treatment for the left hip during the period he served with the Oklahoma Air National Guard from October 1972 to March 1993, interrupts continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). As noted, the Board acknowledges that the Veteran injured his left hip during a fall off of an aircraft in Vietnam in 1969. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). While he is competent to give evidence about symptomatology, see Barr v. Nicholson, 21 Vet. App. 303 (2007), as to his assertions that this injury resulted in a chronic left hip disability resulting in a total left hip arthroplasty, these assertions are inconsistent with his actual separation examination report which only shows the negative clinical evaluation of the lower extremities. They are also inconsistent with the August 1971 VA examination report revealing normal hip joints by x-ray at that time, and the Oklahoma National Guard records which are negative for any left hip complaints or treatment. Due to these inconsistencies, the Board does not find the Veteran's assertions in this regard to be credible. Moreover, as the disability was not manifested within one year from the date of the Veteran's separation from active duty in March 1971, presumptive service connection under 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309 for certain chronic disabilities, to include arthritis, is not warranted. As the preponderance of the evidence is against the claim for service connection for total left hip arthroplasty, claimed as a left hip disability, the benefit of the doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Application to Reopen Claims for Right and Left Knee Disabilities and for Hepatitis C A. Pertinent Law and Regulations VA may reopen and review a claim that has been previously denied if new and material evidence is received since the last final decision. That is, only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001. This new regulation provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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. 66 Fed. Reg. 45630 (2001) (codified as amended at 38 C.F.R. § 3.156a). Furthermore, for purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F. 3d 1343, 1347 (2000). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2011). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F. 3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Id. "The term 'active military, naval, or air service' includes active duty, 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 for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty (AD) or ACDUTRA, or injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 1110, 1131; see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C.A. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(c);38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 C.F.R. § 101(23)(c); 38 C.F.R. § 3.6(d) (2011). Presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for periods of ACDUTRA or INACDUTRA, if applicable, is not appropriate. B. Right and Left Knee Disabilities Facts The Veteran's service treatment records during his period of active duty from July 1967 to July 1971 do not show complaints or treatment for knee problems. They include his March 1971 separation examination report showing a normal clinical evaluation of the lower extremities. The Veteran reported at a VA examination in August 1971 that he wrenched his left knee during a rocket attack in Vietnam. No pain or limitation of motion was found in the left knee during physical exam. The Veteran was assessed as having recurrent pain and limitation of motion, left knee, not found. X-ray examination of the left knee disclosed no bone or joint abnormality. Air National Guard treatment records show that he Veteran denied a history of "trick" or lock knee on an October 1972 Report of Medical History. The October 1972 enlistment examination report shows a normal clinical evaluation of the lower extremities. These records include a February 1976 Report of Medical History showing that the Veteran had a history of injury to the left knee while in Vietnam, with recurring pain and stiffness while walking. The Veteran was noted to be able to perform his military duties without restriction. A September 1979 medical treatment record shows that the Veteran reported dancing two nights earlier when his knee popped and he experienced severe pain. He also reported that his knee gave way on him and he experienced immediate swelling. He was diagnosed as having sanguinous effusion and quadriceps tendon bursa. Aspiration of the sanguinouserous fluid was performed. This record does not specify what knee was affected. A VA hospital summary from the Muskogee, VA medical center (VAMC) in July 1982 notes that the Veteran cut his right knee falling in a stream on July 4th and sought treatment a day later after getting paint in the wound. He was assessed as having prepatellar bursitis. His left knee history was noted to include an injury to the knee in Vietnam for which he was service connected. Progress notes later in July 1982 contain objective findings of mild right prepatellar effusion and healed laceration. These records contain an assessment of healing knee wound. A March 1985 enlistment examination report for the Air National Guard notes that the Veteran had a history of a sprained left knee in 1969 while in Vietnam, with no complications and a complete recovery. A March 1985 Report of Medical History shows that the Veteran reported a history of "trick" or lock knee on a March 1985 Report of Medical History. An August 1985 Consultation Sheet shows that he reported bilateral chronic knee pain for 10 years with frequent giving way and falling. He was given a provisional diagnosis of degenerative joint disease and was put on a profile for no running due to his knee pain. An August 1985 treatment record shows that the Veteran complained of right knee pain for one day and reports that he twisted it on the range the day before. It also shows that he was training to be a combat inspector. This record further notes that he jarred both knees in 1969 when he rode a helicopter down. In addition, this record shows that the Veteran's knee gave way in 1976 while climbing an aircraft ladder. He was noted to have sought medical care on both occasions and was advised to treat the knee with a wrap. He was assessed as having chronic knee pain and biochemical imbalance. In May 1989, the Veteran requested that a May 1989 admission record from the VAMC in Fayetteville, Arkansas, be reviewed to support an increase in his "knee condition". The Veteran reported a history of "trick" or lock knee on a June 1989 Report of Medical History and pain in both knees. A periodic exam performed at that time revealed a normal clinical evaluation of the lower extremities. In July 1989, the RO denied service connection for a knee condition, noting that a knee condition was not shown in the Veteran's service treatment records. The Veteran's service personnel records include his Air National Guard/United States Air Force Reserves Point Credit Summary showing the points assigned to the Veteran for various periods of service from July 1976 to June 1992. In February 1993, the Veteran filed to reopen his claim for service connection for a knee condition and reported that this condition had gotten much worse. In a statement dated in May 1993, the Veteran reported that his left knee went out on him on the range at Lackland Air Force Base in Texas in August 1985 and he was treated for it at that time. The RO denied service connection for a knee condition in an April 1994 rating decision. The RO found that there was no evidence in the records other than an acute knee injury and a finding of bilateral degenerative joint disease in August 1985. With respect to this latter diagnosis, the RO found that this was not a consideration due to the nature of the disability and the Veteran's service. An April 1997 record from Dr. Rivera relays the Veteran's report of low back pain with radiation to the right knee. In rating decisions dated in September 1997 and July 1999, the RO denied reopening the Veteran's claim for service connection for a "knee condition". The RO found in September 1997 that the evidence was silent to any chronic knee disorder and did not demonstrate any nexus to service. The RO found in July 1999 that the evidence did not show that a knee condition was incurred or aggravated during active service. In a letter from Alberto Rivera in September 2000, Dr. Rivera reported that the Veteran had low back pain with radiation into the right knee. In January 2001, the Veteran filed to reopen his claim for service connection for disabilities involving both knees. In May 2002, the RO denied service connection for a right knee disability and denied reopening a claim for service connection for a left knee disability. The RO noted that there was no evidence of a chronic knee disability since service. In denying the application to reopen the claim for service connection for a left knee disability, the RO reported that a VA PTSD examiner found "...no record of veteran's allegations of having suffered trauma to his knee when he had to take cover during an enemy attack in DaNang." In June 2002, the RO received a statement from James R. Ballard stating that the Veteran injured his knee and ankle at a grenade launcher while attending a Combat Arms Specialist Course in late August 1985. He said the Veteran was put on light duty and was required to stay off of his knee and ankle for one week. He said the Veteran was then put on crutches for two weeks. VA outpatient records in 2003 contain problem lists that include joint pain. In March 2007, the RO received duplicate National Guard records from 1976 to 1985 showing knee problems. In May 2007, the Veteran filed to reopen a claim for service connection for a bilateral knee condition. VA outpatient records received in August 2007 include a February 2007 entry noting that the Veteran had osteoarthritis with knee pain. The Veteran clarified in a statement dated in January 2008 that both knees should be considered service connected due to the accident in San Antonio, Texas, and treatment while on active duty at Wilford Hall in 1985. The Veteran reported on a February 2008 statement that he was undergoing physical therapy beginning that month. He enclosed a magnetic resonance imaging (MRI) report of his right knee, dated in February 2008. The report revealed tiny effusion, otherwise normal MRI of the right knee. In an August 2008 rating decision, the RO denied reopening claims for service connection for right and left knee disabilities on the basis that no new and material evidence had been submitted. In a statement dated in January 2009, the Veteran said that around the first week of November 1969 he was riding on a helicopter as a door gunner on a mission to pick up a Lieutenant Colonel. He said that about 30 miles outside of DaNang the helicopter took incoming fire and had to land hard which affected his knees. He said he went to the hospital for his knees and was put on bed rest. He also reported that his knees had gotten worse as the years have gone by. The RO construed this statement as a claim to reopen for service connection for right and left knee disabilities. In May 2009, the RO denied the Veteran's application to reopen the claim for service connection for right and left knee disabilities on the basis that no new and material evidence had been received. In September 2009, the RO received evidence from the Defense Personnel Records Information Retrieval System showing that the Veteran had been assigned to the 405th Field Maintenance Squadron (FMS), 405th Fighter wing (FW), 13th Air Force, located at Clark Air Force Base, Republic of the Philippines and that the mission of the 405th Field Maintenance Squadron was to provide field maintenance support and special assistance for aircraft and aerospace ground equipment to the 405th FW. The squadron was also noted to maintain the electronic systems on deployed aircraft in the Republic of Vietnam at DaNang Air Base (AB), in Thailand, as well as other bases, and that the sources revealed that the DaNang AB suffered an attack in December 1969 when it received four rounds of enemy rocket fire. There were no U.S. Casualties reported, but there was one U.S. aircraft damaged during the attack. In a substantive appeal (VA Form 9) in November 2009, the Veteran reported that during Vietnam service in 1969 he fell off of an aircraft injuring both knees at DaNang Air Force Base. He said he reinjured his knees at Lackland Air Force Base in San Antonio, Texas. In a subsequent rating decision in October 2010 that granted service connection for PTSD, the RO noted that the Veteran's military records document his participation in combat in Vietnam. Discussion The record shows that the Veteran's claim to reopen service connection for a "knee condition" has been denied on several occasions. In the most recent final denial in May 2002, the RO denied service connection for a right knee disability and denied to reopen the claim for service connection for a left knee disability. The Veteran was notified of the May 2002 denial, but did not initiate an appeal with respect to these issues. See 38 C.F.R. § 20.204. Although he submitted a statement from Tsgt. J. R. Ballard in June 2002 regarding a knee injury in August 1985, this is not considered new and material evidence since it is essentially cumulative of the Veteran's own statement in 1993 wherein he similarly reported that he injured his left knee at Lackland Air Force Base in Texas in August 1985. See Anglin, supra. Thus, the Board finds that he did not submit new and material evidence within the one year appeal period. Therefore, the May 2002 denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. The RO's May 2002 denial was based on "the absence of evidence of a chronic condition or residual disability from active duty service from 'July 6, 1967 to 07-05-01.'" The RO made note of the fact that the service treatment records were negative for complaints of, treatment for, or diagnosis of a claimed knee disability. Moreover, the RO also specifically noted that a VA PTSD examiner remarked that " 'There is no record of veteran's allegations of having suffered trauma to his knee when he had to take cover during an enemy attack in DaNang.'" The evidence on file prior to the adverse decision in May 2002 includes the Veteran's treatment records for his period of active duty service from 1967 to 1971 which do not show that he complained of nor was treated for knee problems at that time. They also show that he had a normal clinical evaluation of the lower extremities at his March 1971 separation examination. In addition, the evidence includes the Veteran's Air National Guard records that contain a notation that the Veteran jarred his knees in a downed helicopter in 1969 in Vietnam, and sustained a knee injury in 1976 when he was climbing an aircraft ladder and his right knee gave way. They also show that he was seen in 1979 when his knee popped while dancing, in 1982 for prepatellar bursitis of the right knee, and in 1985 for right knee pain after twisting it on the range. In addition, his records include personnel service records showing his periods of recognized service from 1972 to 1993. The evidence also includes the Veteran's May 1993 statement that his left knee went out on him on the range at Lackland Air Force Base in August 1985 and he was treated for this at that time. There are also letters from Dr. Rivera dated in April 1997 and September 2000 showing that the Veteran had low back pain with radiation to the right knee. Most notably, however, is the RO's receipt of evidence from the Defense Personnel Records Information Retrieval System in September 2009, obtained in conjunction with his now service-connected PTSD, indicating that the Veteran served in Vietnam during the Vietnam era in a combat zone. More specifically, this evidence notes that the DaNang Air Base received four rounds of enemy fire in December 1969 and there was one U.S. Aircraft damaged during the attack. This evidence is certainly pertinent to his present claims for service connection for right and left knee disabilities when considering all the evidence of record, to include the Air National Guard records that refer to a knee injury in Vietnam when the Veteran jarred his knees while his helicopter was down, his August 1971 VA examination report that he weakened his left knee during a rocket attack in Vietnam, and also with respect to the Veteran's report at a VA PTSD examination in February 2002 that he suffered trauma to his knee when he had to take cover during an enemy attack in DaNang. Notably, as shown above, in denying the Veteran's claims to reopen service connection for left knee disability and for service connection for a right knee disability in May 2002, the RO specifically relied on the February 2002 VA PTSD examiner's notation that" 'There is no record of veteran's allegations of having suffered trauma to his knee when he had to take cover during an enemy attack in DaNang.'" Thus, the Board finds that an element of the service connection claim that was found to not be established at the time of the prior final denial, namely evidence of an inservice disease or injury, has been satisfied in light of the provisions of 38 U.S.C.A. § 1154(b) and the evidence from the Defense Personnel Records Information Retrieval System. It follows that reopening of the Veteran's claims for service connection for right and left knee disabilities is warranted. C. Hepatitis C Facts The Veteran's service treatment records show that he underwent an appendectomy in 1967 due to right lower quadrant pain with no complications and complete recovery. There is no indication from these records that a blood transfusion was necessary. The records do not show complaints or treatment for hepatitis C. The Veteran's March 1971 separation record shows that serology was negative for "NPR" and hemocrit was 54%. Air National Guard records from 1972 to 1993 do not show that the Veteran was treated for or was diagnosed as having hepatitis C. They do show that he was hospitalized in May 1990 for alcoholic related ailments, including alcoholic hepatitis. The Veteran had no history of liver disease at that time, but had a history of elevated liver enzymes. However, a repeat chem. panel performed during his hospitalization showed that his liver enzymes were decreasing. VA records show that the Veteran was hospitalized in January 1993 for detoxification. Laboratory findings at that time revealed that the Veteran had normal liver/renal profiles. A VA hospital discharge summary in February 1993 shows that the Veteran was hospitalized for alcohol dependency, continuous; polysubstance abuse, remote past; and alcoholic gastritis. It also notes that he had been at the VA hospital for alcoholic gastritis and upper gastrointestinal (GI) bleeding before Christmas 1992 and was given four pints of transfused blood. On file is a September 1998 private medical record from pulmonologist Harold Pola, M.D., of Hospital Menonita to gastroenterology, requesting that the Veteran be evaluated for his claim that he had hepatitis C from a blood transfusion. In March 1999, the Veteran filed a claim for service connection for hepatitis C. In a July 1999 rating decision, the RO denied service connection for hepatitis C. The RO based the decision on the fact that the Veteran's service treatment records from his active duty from July 1967 to July 1971, and treatment records (private and VA) during his periods serving as a member of the Oklahoma Air National Guard from October 1972 to March 1993 do not show that he had hepatitis C. Laboratory results from Caribbean Medical Testing Center in April 2006 show that hepatitis B surface antigen (by EIA) was non reactive and hepatitis C virus antibodies (by EIA) were reactive. In March 2009, the Veteran filed an application to reopen a claim for service connection for hepatitis C. He reported that this condition occurred during an operation in 1967. VA outpatient records in March 2009 note that the Veteran had hepatitis C that was stable. In a substantive appeal (VA Form 9) in November 2009, the Veteran reported that he received a blood transfusion in the Philippines in 1970 and developed hepatitis C. He said this was based on his service treatment records. Discussion The record shows that the Veteran's claim to reopen service connection for hepatitis C was initially denied in a July 1999 rating decision. The Veteran was notified of this decision by letter dated in July 1999 and of his appeal rights, but he did not initiate an appeal of this decision. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.200, 20.1103 (2011). The basis of the denial was that there was no record of treatment in service for hepatitis C. He also did not submit new and material evidence within the one year appeal period. 38 C.F.R. § 3.156. The evidence that the RO considered in January 1999 includes the Veteran's service treatment records from his period of active duty from July 1967 to July 1971. These records, which show that serology testing was performed at separation in March 1971, do not show that the Veteran had hepatitis C. The RO also considered private and VA treatment records during the period he was a member of the Oklahoma Air National Guard from October 1972 to March 1993 which also do not show that he had hepatitis C. The evidence that was received after January 1999 consists of Laboratory results from Caribbean Medical Testing Center in April 2006 showing reactive hepatitis C virus antibodies (by EIA), and a March 2009 VA outpatient record noting that the Veteran had hepatitis C, stable. The positive lab result and diagnosis of hepatitis C decades after service does not relate to the basis of the prior denial in January 1999 in that it does not relate the Veteran's hepatitis C either to his active duty service from July 1967 to July1971, or to any verified period of service with the Oklahoma Air National Guard from October 1972 to March 1993. Consideration has been given to the assertion that the Veteran made when he filed his application to reopen this claim in March 2009 that this disability occurred during an operation in 1967, presumably when he underwent an appendectomy in December 1967. To the extent that the Veteran has stated his belief that his positive antibody lab test for hepatitis C decades after service is related to service, such a statement does not constitute new and material evidence. His contention relating his hepatitis C to service was already relayed when he filed his initial claim for service connection for hepatitis C in March 1999. Moreover, his service treatment records do not show that he had a blood transfusion. In short, the evidence received since the January 1999 denial is essentially cumulative of the evidence previously of record and does not relate to the prior basis for the denial of the claim, i.e., lack of evidence of a nexus between current hepatitis C and service. Consequently, the Board finds that new and material has not been received and reopening of the claim for entitlement to service connection for hepatitis C is not warranted. ORDER Entitlement to service connection for status post total left hip arthroplasty, claimed as a left hip disability, is denied. The application to reopen the claim for service connection for a right knee disability is granted. The application to reopen the claim for service connection for a left knee disability is granted. The application to reopen the claim for service connection for hepatitis C is denied. REMAND Service Connection for Right and Left Knee Disabilities Now that the Veteran's application to reopen the claims for service connection for right and left knee disabilities has been reopened, the Board finds that additional medical development is warranted before fully informed decisions can be made on these claims. Such development requires affording the Veteran a VA examination in order to obtain a nexus opinion that takes into consideration all periods of his recognized duty, to include not only the Veteran's active duty service from July 1967 to July 1971, but also his recognized service while he served as a member of the Oklahoma Air National Guard for periods from October 1972 to March 1993. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.6, 3.159(c)(4), 3.303 (2011). Increased Rating Claims for Ingrown Toenails, Right Toes with Surgery The Veteran's right and left ingrown toenails are rated analogously under 38 C.F.R. § 4.73, Diagnostic Code (Code) 5299-5284, the criteria for foot injuries. The Board also notes that ingrown toenails can be rated under 38 C.F.R. § 4.118, Code 7819, which pertains to benign skin neoplasms. Code 7819 provides that benign skin neoplasms should either be evaluated based on disfigurement of the head, face, or neck under Code 7800; as scars under Codes 7801 to 7805; or based on impairment of function. See 38 C.F.R. § 4.118, Code 7819. The Veteran was most recently afforded a VA examination regarding his ingrown toenails in October 2007. Unfortunately, the examination report does not provide the pertinent information necessary to adequately rate the Veteran's ingrown toenails under Code 7819. On remand, the Veteran should be afforded another VA examination for his right and left ingrown toenails and this examiner should note whether any ingrown toenail, and any resulting scarring, is deep or superficial, whether it causes limited or painful motion, and whether the toenail/scarring is unstable or painful. The examiner should also note whether the effect of the right and/or left ingrown toenail disorder as a whole should be considered "mild," "moderate," "moderately severe," or "severe." Also, a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The October 2007 VA examiner reported that the Veteran could not work due to his service-connected feet, lumbar herniated disc with pinched nerve and emotional conditions. Accordingly, further clarification is required as to whether the Veteran's foot disability alone prevents him from obtaining/maintaining substantially gainful employment. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding, pertinent VA treatment records from June 2010 until the present that are related to treatment provided for either ingrown toenails or knee disabilities. 2. The Veteran must be afforded an appropriate VA examination (podiatry and/or other medical) to determine the severity of his right and left foot ingrown toenails, right toes with surgery. The claims folder must be made available to the examiner. All pertinent symptomatology and findings, to include any resultant disorders due to the removal of ingrown toenails, must be reported in detail. The examiner should fully describe the Veteran's symptomatology associated with his right foot and left foot ingrown toenails. Specifically, the examiner should indicate whether the right foot and/or left foot ingrown toenail, and any resulting scarring, is deep or superficial, whether it causes limited or painful motion, and whether the toenails/scarring are unstable or painful. Further, the examiner should indicate whether the effect of the right and/or left ingrown toenail disorders as a whole is considered to be "mild," "moderate," "moderately severe," or "severe" in terms of the level of functional impairment. 3. The Veteran must also be afforded an appropriate VA examination to determine the etiology of his right and left knee disabilities. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file should be made available for review in connection with the examination. The examiner should address whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's right and/or left knee disabilities had its/their onset in service, or is/are the result of disease or injury incurred or aggravated during service-to include his active duty service from 1967 to 1971, or during periods of ACDUTRA (roughly two week periods annually) in the National Guard from October 1972 to March 1993. The examiner should also include an opinion regarding the likelihood that any such right and/or left knee disability are the result of injury incurred or aggravated during periods of INACDUTRA in National Guard service from October 1972 to March 1993. Also, if other causes are more likely, those should be noted. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. 4. Thereafter, review the claims file and determine if the claims on appeal can be granted. If not, the appellant should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond before the claims file is returned to the Board for further appellate consideration. The appellant 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. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs