Citation Nr: 1300322 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 11-02 705A ) 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 presented to reopen a previously denied claim for entitlement to service connection for a back condition. 2. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for left knee condition, to include arthritis. 3. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for left shoulder condition, to include arthritis. 4. Entitlement to service connection for a back condition. 5. Entitlement to service connection for a left knee condition, to include arthritis. 6. Entitlement to service connection for a left shoulder condition, to include arthritis. 7. Entitlement to service connection for a right knee condition, to include arthritis. 8. Entitlement to service connection for a right hip condition, to include arthritis. 9. Entitlement to service connection for a left hip condition, to include arthritis. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and April 2011 rating decisions of the RO which denied the benefits sought listed on the title page. The Veteran perfected timely appeals of those rating decisions. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a right knee, right hip, and back disability 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. An unappealed December 2008 Board decision denied entitlement to service connection for left knee, left shoulder, and back disabilities. 2. The evidence associated with the claims file since the December 2008 Board decision includes evidence that is not cumulative and redundant of evidence of record at the time of the prior denial, that relates to unestablished facts necessary to substantiate the claims, and that raises a reasonable possibility of substantiating the claims for service connection for left knee, left shoulder, and back disabilities. 3. The evidence of record shows that the Veteran has a left knee disability which is casually related to his military service. 4. The evidence of record shows that the Veteran has a left shoulder disability which is casually related to his military service. 5. The evidence of record shows that the Veteran has a left hip disability which is casually related to his military service. CONCLUSIONS OF LAW 1. The December 2008 Board decision, denying service connection for a left knee, left shoulder, and back disability is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.204, 20.302, 20.1103 (2012). 2. As evidence received since the December 2008 Board decision, denying service connection for a left knee, left shoulder, and back disability is new and material, the criteria for reopening the claims for service connection for a left knee, left shoulder, and back disability are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a left knee disability are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for service connection for a left shoulder disability are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for service connection for a left hip disability are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition of the Veteran's petition to reopen a claim for entitlement to service connection for a left knee, left shoulder, and back disability, the Board finds that all notification and development actions needed to fairly adjudicate these claims has been accomplished. II. Pertinent Laws and Regulations A. New and Material In general, Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). An exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Here, the claim to reopen was received in January 2008; therefore, the current version of the law, which is set forth in the following paragraph, is applicable in this case. 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. 38 C.F.R. § 3.156(a). A VA adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, then the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all of the evidence, both new and old, after ensuring that VA's statutory duty to assist the claimant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established by a continuity of symptomatology [note: not necessarily continuity of treatment] between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Lay evidence of symptomatology is pertinent to a claim for service connection, if corroborated by medical evidence. Rhodes v. Brown, 4 Vet. App. 124, 126- 27 (1993). A lay person is competent to testify in regard to the onset and continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). III. Analysis The Board has reviewed all of the evidence in the claims file. 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 the claims. A. New and Material Evidence In a December 2006 rating decision, the RO denied service connection for left knee, left shoulder, and back conditions. Those claims were appealed and the Board issued a December 2008 decision which denied entitlement to service connection for those conditions. The evidence of record at that time consisted of the Veteran's service treatment records, written statements in support of the Veteran's claim from his wife and a fellow Veteran, and VA outpatient treatment records dated from May 2006 to November 2006. The Veteran's claim was denied because there was no evidence of a left knee, left shoulder, or back disability. The evidence added to the record since the December 2008 Board decision consists of additional VA outpatient treatment records and private treatment records. The newly submitted evidence, namely a May 2010 private medical statement and accompanying treatment record, which was added to the evidence of record after the December 2008 rating decision, shows that the Veteran has been diagnosed with osteoarthritis of the left knee and shoulder and the Veteran's private doctor has linked this disability to his military service. In addition, a May 2001 radiology report shows that preliminary films showed degenerative changes in the Veteran's spine. As such, the evidence that has been submitted since the December 2008 Board decision is both new and material because it shows that the Veteran has been diagnosed with left shoulder, left knee, and back disabilities. Thus, the evidence tends to establish previously unestablished facts that were necessary to substantiate the claims. After reviewing the record, the Board finds that new and material evidence has been submitted to reopen the Veteran's claim of service connection for a left shoulder, left knee, and back disability. B. Service Connection Here, the Veteran has alleged that he developed disabilities of the left knee, left hip, and left shoulder as a result of his military service. Specifically, the Veteran has alleged that he injured himself during basic and judo training. A review of the Veteran's service treatment records show that at pre-induction examination in December 1960 the Veteran was evaluated as clinically normal and no abnormalities were noted. Subsequently, an August 1961 report of medical history shows that the Veteran reported having (or previously had) swollen or painful joints, arthritis or rheumatism, and painful or trick shoulder or elbow. However, upon clinical evaluation, no abnormalities were noted and the joint pain reported was noted to be "insignificant." Finally, upon separation in June 1963, the Veteran reported the same conditions but was again clinically evaluated as normal. There are no service treatment records which show that the Veteran ever complained of, sought treatment for, or was diagnosed with a left knee, hip, or shoulder condition. In fact, the Veteran has stated that he did not seek treatment while on active duty, rather, he decided to tough it out. In support of the Veteran's claim is a September 2006 written statement from a fellow Veteran who served with the appellant. He stated that he remembered the Veteran telling him that he had hurt his leg during basic training. He further indicated that while attending military police training (which they attended together) the Veteran hurt his back and shoulder. He did not report the injuries at the time because he did not want to be left behind from the group. In addition, a September 2006 written statement from the Veteran's wife indicates that her husband has told her over the 49 years they have been married about the injuries he sustained during his military training and that he experiences painful swelling of the knees, shoulders, and back. Additionally, the Veteran submitted a May 2010 written statement from his private physician as well as a private treatment record dated in May 2010. The treatment record shows that the Veteran's left knee, hip, and shoulder were evaluated. The doctor found clinical findings consistent with osteoarthritis. The doctor stated that with a reasonable degree of certainty his premature arthritic degeneration of the left knee, hip, and shoulder does relate back to his military service and injury. The May 2010 letter similarly showed that the doctor opined that the Veteran suffers from degeneration related to his military service and judo training injury. He further stated that with a reasonable degree of medical certainty, it can be stated that he suffers prematurely from degenerative left sided arthritis as it relates to that training and injury that he describes during his military service. In considering the lay evidence as discussed above, the Board finds the lay statements from the Veteran, his service comrade are competent and credible. This is so because they were each an eye-witness to a combination of symptoms experienced by the Veteran either during or after service, and their accounts are consistent among themselves and are not shown to be at variance with the other record evidence, specifically the combination of manifestations of premature arthritis in the left shoulder, knee, and hip identified in the May 2010 private medical report. See 38 C.F.R. § 3.303(b); Buchanan, 451 F. 3d at 1336. Upon review of the evidence of record, the Board concludes that the Veteran's in-service history of injuries to the left knee, shoulder, and hip, which were corroborated by a fellow Veteran who served with the Veteran and attended military police training with him, the continuity of symptomatology after service as provided by his spouse, and a combination of these same symptoms resulting in the May 2010 private diagnosis, weigh more heavily toward a finding that the Veteran's arthritis of the left knee, hip, and shoulder were incurred in service. With no evidence of record weighing against the Veteran's claims, the Board resolves all reasonable doubt in the Veteran's favor, thus allowing him to prevail on his claim of service connection for disabilities of the left shoulder, hip, and knee. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the previously-denied claim for entitlement to service connection for a left shoulder disability is reopened and granted. As new and material evidence has been received, the previously-denied claim for entitlement to service connection for a left knee disability is reopened and granted As new and material evidence has been received, the previously-denied claim for entitlement to service connection for a back disability is reopened, and is granted to this extent only. Entitlement to service connection for a left hip disability is granted. REMAND With respect to the Veteran's claims for entitlement to service connection for a back, right knee, and right hip disability, the Board has determined that further development is warranted. In regards to the Veteran's claim for a back disability the Board has reviewed the evidence of record and has determined that VA has a further duty to assist the Veteran in obtaining evidence and providing him with a VA examination. The Board notes that the VA has not sought a medical opinion with respect to this claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this instant case the Veteran has provided lay evidence by way of his own written statements as well as from a fellow comrade and his wife that he injured his back during basic and judo training and that symptoms have continued since that time. In addition, a May 2001 radiology report shows that there were degenerative changes in the spine. There is no medical opinion of record which speaks to the etiology of the Veteran's back condition. Thus, under McClendon, the Veteran is entitled to a VA examination in order to determine the nature and etiology of his back condition. Additionally, a payment record associated with the Veteran's claims file shows that he underwent some spine treatment from March 2011 to August 2011; however, no treatment records from the referenced doctor have been associated with the Veteran's claims file. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, on remand, VA should request that the Veteran provide authorization to enable it to obtain additional private medical records, to include outstanding copies of records from Dr. Pomajzl. With respect to the Veteran's claims for entitlement to service connection for right knee and right hip conditions, the Board has determined that VA has a further duty to assist the Veteran in obtaining evidence and providing him with a VA examination. In this instant case the Veteran has provided lay evidence by way of his own written statements as well as from a fellow comrade and his wife that he injured his knees during basic and judo training and that symptoms have continued since that time. In addition, various VA treatment records show that the Veteran has been diagnosed with degenerative arthritis-however those records do not indicate whether the Veteran has been specifically diagnosed with right knee or hip degenerative arthritis. Additionally, a May 2010 private treatment record shows that the Veteran is unable to bend over because his hips hurt. Furthermore, the May 2010 private treatment record seems to indicate that the Veteran has right knee and right hip degenerative arthritis that may be related to his military service, however, the opinion is unclear and the clinical evaluation focuses on the left side symptoms but then generally opines as to the knees and shoulders. Thus, a VA medical opinion is necessary in order to determine (1) whether the Veteran has a current right knee or right hip disability and (2) if so, whether those disabilities are more likely than not related to the Veteran's military service. Finally, the May 2010 private treatment record and opinion indicates that the Veteran was seen in 2006 with similar complaints. However, those records have not been associated with the Veteran's claims file. As such, those records should be requested upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. After securing any necessary release forms, all records of medical treatment for the Veteran's right knee, right hip, and back disabilities which are not currently associated with the Veteran's claims file should be requested. Specifically, all records from Dr. Pomajzl and Dr. Crouch should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Associate up-to-date VA treatment records from July 2011 forward with the Veteran's claims folder. 3. After completing the development in directive #1 and associating any response with the Veteran's claims file, schedule the Veteran for a VA examination in order to determine the nature and etiology of any current spine, right knee, or right hip disorders found, to include all orthopedic and neurological manifestations. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays and neurological studies (if needed) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clearly identify any spine, right knee, or right hip disorders found on examination. With respect to each diagnosed disorder, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during the Veteran's period of active duty. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's contention that his current spine, right knee and hip disorders are casually related to his basic and judo training. All relevant lay statements made by the Veteran, his fellow comrade, and his wife regarding onset and continuity of symptomatology should be considered. Additionally all relevant medical evidence should be reviewed and considered, to specifically include the May 2010 private treatment record and opinion and the May 2001 radiology report. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs