Citation Nr: 1237187 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 11-10 596 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for rheumatoid arthritis. 2. Entitlement to service connection for rheumatoid arthritis. 3. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for a right knee condition. 4. Entitlement to service connection for a right knee condition. REPRESENTATION Veteran represented by: Nebraska Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and Son ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to August 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 RO decision, which denied applications to reopen previously denied claims for service connection for rheumatoid arthritis and a right knee condition. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The following decision addresses this question. The Board notes that the claims file contains a May 2006 statement of the case (SOC) addressing the issues of entitlement to service connection for a dental condition, rheumatoid arthritis, a bilateral knee condition, and bilateral feet, lower leg swelling. However, the Board notes that the Veteran never submitted a substantive appeal with regard to this SOC, indicated that he wished to appeal these issues, or indicated that he was under the impression that these issues had been appealed. As such, the Board finds that the issues addressed in the May 2006 SOC are not on appeal before the Board. In August 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Lincoln, Nebraska, RO. A transcript of this proceeding has been associated with the claims folder. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ)/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and suggested medical evidence that the Veteran could submit to further advance his claims. Additionally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the personal hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By a RO decision dated in December 2005, the Veteran's claim of service connection for rheumatoid arthritis was denied on the basis that there was no evidence of any treatment or diagnosis of a bilateral knee condition while in the military service. 2. Evidence received since the December 2005 RO decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for rheumatoid arthritis. 3. The preponderance of the evidence shows that the Veteran has not had a rheumatoid arthritis at anytime during the course of the appeal. 4. By a RO decision dated in December 2005, the Veteran's claim of service connection for a bilateral knee condition was denied on the basis that there was no evidence of any treatment or diagnosis of a bilateral knee condition while in the military service. 5. Evidence received since the December 2005 RO decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee condition. 6. Resolving doubt in favor of the Veteran, his right knee condition is shown to be etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The December 2005 RO decision denying the Veteran's claim of service connection for rheumatoid arthritis is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for rheumatoid arthritis has been submitted. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 3. Service connection is not warranted for rheumatoid arthritis. See 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). 4. The December 2005 RO decision denying the Veteran's claim of service connection for a bilateral knee condition is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). 5. New and material evidence sufficient to reopen the Veteran's claim of service connection for a right knee condition has been submitted. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 6. Service connection for a right knee condition is warranted. See 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim for service connection for a right knee condition, the benefit sought on appeal has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Veteran's claim for service connection for rheumatoid arthritis, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. VCAA letters dated in October 2009, November 2009, and January 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, these letters described how appropriate disability ratings and effective dates were assigned. The Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with 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. See Kent, supra. As will be discussed below, the Board is reopening the claim of service connection for rheumatoid arthritis. Therefore, any failure to provide VCAA compliant notice with regard to the Veteran's application to reopen this claim would be moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the duty to assist, the result of the RO's development indicates that the Veteran's service treatment records are not available. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's service treatment records. The RO made several formal findings that the service treatment records could not be obtained. The Veteran was duly informed of the RO's determination in this regard. The claims file contains all available evidence pertinent to the claims, including private medical records and VA medical records. VA has requested records identified throughout the claims process. In essence, the Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2011). In this case, the Board notes that the Veteran was not provided a VA examination with regard to his rheumatoid arthritis claim. However, the medical evidence of record reflects that he has been examined by a VA rheumatology staff physician, who determined that he did not have rheumatoid arthritis. Therefore, as the medical evidence of record clearly reflects that the Veteran does not have this claimed disability, the Board finds that it is not necessary to obtain another medical opinion on the matter. The Board finds that the medical evidence of record is sufficient upon which to base a decision with regard to this claim. As such, VA has fulfilled its duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A. Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2011). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). New evidence means 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. 38 C.F.R. § 3.156(a) (2011). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). B. New and Material Evidence Claims The initial issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for rheumatoid arthritis and a right knee condition. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Board notes that the Veteran's claims for service connection for rheumatoid arthritis and a right knee condition were denied in a December 2005 RO decision. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2011). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a) (2011). The Veteran was notified of the December 2005 RO decision via a December 20, 2005, letter. He submitted a NOD with regard to this rating decision and a SOC was issued in May 2006. However, the Veteran did not submit a timely substantive appeal with regard to these issues. Therefore, the December 2005 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). The basis for the December 2005 denial of these claims was that there was no evidence of any treatment or diagnoses of these conditions while in the military service. At the time of this denial, private medical records and statements submitted by the Veteran were considered. The new evidence submitted since this denial consists primarily of VA and private medical records, and statements and testimony from the Veteran. With regard to the Veteran's application to reopen his previously denied claim for service connection for a right knee condition, the Board notes that the claims file contains an August 2012 letter from the Veteran's private physician at Plum Creek Medical Group. This physician noted that the Veteran was hospitalized for 6 weeks for what he was told was rheumatoid arthritis. He was unable to perform his duties because of this, and, since that time, he has always had problems with arthritis. This particularly bothered his knees and multiple other joints. According to the Veteran, he has talked to the VA multiple times and they have lost his records from when he was in Korea and hospitalized. Therefore, he has no record going back that far. The physician stated that he has taken care of the Veteran for many years. The Veteran has had longstanding arthritis. After review of his records, the physician opined that there is at least as likely as not a possibility of this being due to something that happened while he was in the service, as he has had chronic problems ever since he has been in service. The Veteran does have continued severe degenerative joint disease of his knees, with which he has always had problems ever since he was in Korea. While the Veteran's service treatment records are not available, the Board notes his testimony during his hearing before the undersigned regarding being hospitalized for 6 weeks while in Korea with this knee problem with continued knee complaints since service is credible. Therefore, as the newly submitted medical evidence specifically suggests that the Veteran's degenerative joint disease of his knees could be related to his active duty, the Board concludes that it satisfies the low threshold requirement for new and material evidence. As such, the Veteran's claim for service connection for right knee condition is reopened. The Board will evaluate the merit of this claim below. With regard to the Veteran's application to reopen his previously denied claim for service connection for rheumatoid arthritis, the Board notes that the Veteran's rheumatoid factor (RF) was noted as 1547 in an October 2010 VA treatment record. Therefore, as the newly submitted medical evidence reflects that the Veteran currently has an elevated rheumatoid factor, and the Veteran has asserted that he was told in service that he had rheumatoid arthritis, the Board concludes that the low threshold requirement for new and material evidence has been satisfied. As such, the claim for service connection for rheumatoid arthritis is reopened. The Board will evaluate the merit of this claim below. C. Service Connection Claims The Veteran contends that he has a right knee disability and rheumatoid arthritis as a result of his active duty. Specifically, the Veteran contends that he suffered cold injuries while on active duty in Korea, which he believes resulted in his current right knee condition and rheumatoid arthritis. He claims to have been hospitalized for 30 days in Taegu, Korea, for these injuries. As previously mentioned, the Veteran's service treatment records are regrettably not available for review. With regard to the Veteran's right knee condition, the medical evidence of record reflects that the Veteran has a current diagnosis of degenerative joint disease of the right knee. As discussed above, the claims file contains an August 2012 opinion from the Veteran's private physician at Plum Creek Medical Group. This physician specifically opined that the Veteran has had longstanding arthritis and there is at least as likely as not a possibility of this being due to something that happened while he was in the service, as he has had chronic problems ever since he has been in service. The physician further opined that the Veteran has continued severe degenerative joint disease of his knees, with which he has always had problems ever since he was in Korea. Since the Veteran has credibly reported problems with right knee since service and the claims file contains a detailed medical suggesting that the Veteran's current degenerative joint disease of his knees could have had their onset during active duty, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's right knee disability began during his active duty service. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for the Veteran's right knee condition. With regard to the Veteran's claimed rheumatoid arthritis, the Board notes that the Veteran's RF was noted as 1547 in an October 2010 VA treatment record. In a November 2010 VA rheumatology consultation note, it was noted that the Veteran had a questionable diagnosis of rheumatoid arthritis, ongoing joint pain, elevated RF. It was noted that, at this point in time, the Veteran's current knee x-ray is most consistent with degenerative joint disease. It is unlikely that the Veteran has rheumatoid arthritis, although his RF is elevated. There are many etiologies possible for elevated RF, including chronic infection, neoplasm, liver disease. With regard to the Veteran's shoulder pain, it is likely musculoskeletal. In a January 2011 VA rheumatology outpatient note, it was noted that the Veteran complained of knee and shoulder pain that was originally diagnosed as rheumatoid arthritis while he was in Korea, which has been ruled out with clinical signs and symptoms and negative anti-CCP. He most likely has degenerative joint disease. In a separate January 2011 VA medical record, it was noted that the Veteran was seen by the rheumatology clinic last week, and per their note, he has arthritis, not rheumatoid arthritis. The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the claims file does not contain medical evidence showing that the Veteran currently has rheumatoid arthritis. As noted above, the November 2010 VA rheumatology consultation note specifically noted that the Veteran's current knee x-ray is most consistent with degenerative joint disease, and it is unlikely that the Veteran has rheumatoid arthritis, although his RF is elevated. It was further noted that there are many etiologies possible for elevated RF, including chronic infection, neoplasm, liver disease. In a January 2011 VA rheumatology outpatient note, it was noted that the Veteran complained of knee and shoulder pain that was originally diagnosed as RA while he was in Korea, which has been ruled out with clinical signs and symptoms and negative anti-CCP. It was noted that he most likely has degenerative joint disease. Additionally, as discussed above, the August 2012 letter from the Veteran's private physician noted the Veteran as having longstanding arthritis. However, this physician discussed degenerative arthritis and gave no indication that the Veteran has a current diagnosis of rheumatoid arthritis. Therefore, as the medical evidence of record does not reflect that the Veteran has a current diagnosis of rheumatoid arthritis, service connection must be denied. Shedden, supra. The Board acknowledges the Veteran's contention that he currently has rheumatoid arthritis as a result of his active duty service. However, the medical evidence of record simply does not support this contention. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be competent to offer an opinion on complex medical questions, such as whether he has a current diagnosis of rheumatoid arthritis. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for rheumatoid arthritis, and the benefit-of-the-doubt rule is not for application. However, as discussed above, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for the Veteran's right knee condition. ORDER As new and material evidence has been received regarding the claim of service connection for rheumatoid arthritis, the Veteran's claim is reopened. To this extent, and to this extent only, the appeal is granted. Entitlement to service connection for rheumatoid arthritis is denied. Entitlement to service connection for a right knee condition is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs