Citation Nr: 1300764 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-33 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been added to the claims file to reopen a claim of entitlement to service connection for residuals of bilateral ankle sprain/soft tissue injuries. 2. Whether new and material evidence has been added to the claims file to reopen a claim of entitlement to service connection for residuals of bilateral knee sprain/soft tissue injuries. 3. Entitlement to service connection for bilateral ankle disorders. 4. Entitlement to service connection for bilateral knee disorders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. In an unappealed April 1995 decision, the RO denied service connection for residuals of bilateral ankle sprain/soft tissue injuries. 2. In an unappealed April 1995 decision, the RO denied service connection for residuals of bilateral knee sprain/soft tissue injuries. 3. Since April 1995, evidence not cumulative or redundant of evidence previously of record, has been added to the record that relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for residuals of bilateral ankle sprains/soft tissue injuries and raises a reasonable possibility of substantiating that claim. 4. Since April 1995, evidence not cumulative or redundant of evidence previously of record, has been added to the record that relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for residuals of bilateral knee sprains/soft tissue injuries and raises a reasonable possibility of substantiating that claim. 5. The Veteran does not have a current disorder of either knee that had onset during his active service or was caused by his active service. 6. The Veteran does not have a current disorder of either ankle that had onset during his active service or was caused by his active service. CONCLUSIONS OF LAW 1. The April 1995 rating decision that denied entitlement to service connection for residuals of bilateral ankle sprains/soft tissue injuries is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2012). 2. The April 1995 rating decision that denied entitlement to service connection for residuals of bilateral knee sprains/soft tissue injuries is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2012). 3. New and material has been presented to reopen the claim of entitlement to service connection for residuals of bilateral ankle sprains/soft tissue injuries. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. New and material has been presented to reopen the claim of entitlement to service connection for residuals of bilateral knee sprains/soft tissue injuries. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012 5. The criteria for service connection for bilateral knee disorders have not been met. 38 U.S.C.A. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 6. The criteria for service connection for bilateral ankle disorders have not been met. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist Before addressing the merits of the issue now on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to requests to reopen previously denied claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the instant case, the RO did not provide notice with regard to reopening his claims of entitlement to service connection for residuals of bilateral knee and ankle sprains/soft tissue injuries. Rather, it implicitly reopened the claims and then adjudicated them on the merits. Based on that fact and because the Board here reopens his claims and addresses them on the merits, the lack of notice with regard to the requirements for reopening claims cannot have resulted in prejudice to the Veteran and therefore requires no corrective action. See generally, Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (explaining the rule of prejudicial error in the context of claims for VA benefits). As to notice regarding the underlying service connection claims, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA satisfied its duty to notify by way of a letter sent to the Veteran in March 2007 notifying him of the criteria for establishing service connection for bilateral knee and ankle disorders, of his and VA's respective duties for obtaining evidence, and how VA determines disability ratings and effective dates. Accordingly, the pre initial adjudication letter addressed all notice elements. The duty to assist also has been fulfilled as service and VA treatment records relevant to the claims have been associated with the claims file and VA provided him with a VA examination in May 2007. The examiner considered the history of his disabilities, provided a detailed description of the disabilities, and included a sufficient analysis supporting the expert opinion rendered. Thus the examination was adequate. See Stefl v. Nicholson, 120 Vet. App. 123-25 (2007). In his October 2009 substantive appeal, the Veteran requested a hearing before the Board. In a writing received in November 2009 he asked VA to cancel that hearing. The hearing request has therefore been withdrawn. 38 C.F.R. § 20.702(e) (2012). The Board finds that the available medical evidence is sufficient for an adequate determination of this claim. There has been substantial compliance with all pertinent VA laws and regulations. No further notice or assistance is required to fulfill VA's duty to assist in the development of a claim for benefits. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection In March 2007, the Veteran filed a claim of entitlement to service connection for bilateral ankle and knee disorders. He contends that his current symptoms began during service and therefore service connection is warranted. To establish entitlement to direct service connection for a claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In an April 1995 decision, the RO denied November 1994 claims of entitlement to service connection for multiple sclerosis and for residuals, sprain/soft tissue injuries, both lower extremities. By definition, the latter issue encompassed residuals of such injuries of the ankles and knees. As to that claim, the RO explained that the in-service complaints indicated temporary conditions without residuals and that a March 1995 VA examination revealed no specific disabilities that could be related to those in-service complaints. That same month, VA mailed notice of that denial and of his procedural and appellate rights to the Veteran. The rating decision indicates that a copy was sent to his representative. At that time the Veteran apparently complained of pain; he has currently been diagnosed with knee and ankle arthralgia (joint pain). His current claim is therefore based on the same factual basis as the previous claim because there is no distinctly diagnosed condition. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (distinguishing a new claim from a previously denied claim on the basis of distinctly diagnosed conditions). Once VA denies a claim, if the claimant does not initiate an appeal to the Board within a statutorily specified period, the denial becomes final and the claim may not thereafter generally be reopened or allowed. 38 U.S.C.A. § 7105(c)(West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2012). Other than simultaneously contested claims, which the claim denied in 1995 was not, that period is one year. 38 U.S.C.A. § 7105(b) (West 2002). The U.S. Court of Appeals for Veterans Claims (Veterans Court) has explained that 38 C.F.R. § 3.156(b) can operate to prevent a decision from becoming final. See King v. Shinseki, 23 Vet. App. 464, 466-67 (2010) (stating that the receipt of new and material evidence within one year of the date of mailing of an RO decision, "prevents an initial determination from becoming final"). That regulation provides that if new and material evidence is received within the appeal period, such evidence relates to the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Following mailing of the 1995 decision, VA did not receive any evidence with regard to residuals of in-service injuries. What it did receive were reports of numbness of his extremities along with a request to reopen his claim of entitlement to service connection for multiple sclerosis. In September 1995, the RO again denied service connection for multiple sclerosis. No document expressing dissatisfaction with or a desire to appeal the April 1995 denial was received by the RO within one year of the mailing of that decision. Therefore, the April 1995 decision in which the RO denied service connection for bilateral knee and ankle sprain/soft tissue injuries is final. The exception to the rule of not reopening a finally decided claim is that VA shall reopen and review the merits of such claim if new and material evidence is added to the record. 38 U.S.C.A. § 5108 (West 2002). "New and material evidence" is evidence not previously submitted to agency decision makers, which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Although the RO implicitly reopened the claim, the Board must independently determine whether the claim may be reopened. See Jackson v. Principi, 265 F.3d 1366, 1383 (Fed. Cir. 1996) (holding that the Board has a jurisdictional requirement to determine if the claim may be reopened, regardless of the actions of the RO). In his October 2009 substantive appeal, the Veteran reported that "[t]he basis of military records of existing problems began and were treated while I was in the military service." Liberally construing this statement leads to a conclusion that the Veteran is asserting continuity of symptomatology of his knee and ankle symptoms. The Veteran had not previously asserted continuity of symptomatology. The statement is material because a showing of continuity of symptomatology can be probative of a nexus between an in-service injury and a current disability. 38 C.F.R. § 3.303(b). As the evidence is new and material, the Board must reopen his claim of entitlement to lower extremity disabilities, claimed now as disorders of his knees and ankles. Having reopened the claims, the Board now turns to the merits of the claims. Service treatment records document that the Veteran complained of pain in both knees and ankles in December 1975, explaining that he twisted his right leg and ankle. X-ray study was negative. Medical personnel provided an impression of weak tendons versus leg strain and he was returned to duty. That same month he reported that he twisted his right leg and ankle while running. Impression was right leg and foot sprain and he was treated with an ace wrap of his ankle and knee. Two days later he reported that his leg had improved and upon examination his knee was found to be normal except for slight ligament laxity. Several days later he complained of left knee symptoms of several days duration. Findings were essentially negative. He was seen several days after that, on December 19, 1975 and a few days later, with bilateral point tenderness at the medial tibial plateau. X-rays were doubtful. Medical personnel provided an impression to consider stress fracture of the tibial plateau, restricted activities for 4 days, and told him to return in a few days. Service treatment records do not show that he returned for treatment following the December 1975 visit. From March 1976 to November 1977 he was seen for unrelated conditions, including shoulder and hand symptoms, but did not report knee or ankle symptoms. In an entry with an obscured date, which appears to be in 1978, he reported right foot pain after running. Medical personnel assessed contusions of the right foot and told him not to run for 4 days. From July 1978 to March 1979 he sought treatment for a back injury, an upper respiratory infection, and head trauma. In May 1979 he reported pain in his left foot and was assessed with muscle strain. He continued to report pain and was found to have pain radiating into the inferior aspect of his ankle. Assessment was possible muscle damage. That was the last entry during service with regard to ankle or knee complaints. A September 1979 report of separation medical examination documents normal clinical evaluations of his lower extremities. In an associated report of medical history, the Veteran indicated that he either then had or had previously had broken bones, tumor growth or cancer, and ear, nose or throat trouble. Annotations explain that these referred to tonsillitis and left wrist ganglion cyst. Service treatment records are evidence against his claim. Although he was treated for symptoms involving his knees and ankles, the reports regarding his knees and ankle are early in his service with no reports in the last years of his service. The report prior to July 1978 was of a foot injury with pain radiating pain to his ankle, not an ankle or knee injury. At separation from active service not only was the examination of his lower extremities normal but he did not he did not report any problems with his knees or ankles although he did report other conditions. This tends to show that he had no chronic condition of his knees or ankles during service. The Board finds these records particularly probative because they show that the Veteran was diligent in reporting medical symptoms; if he had other knee or ankle symptoms it follows that he would have reported for treatment for those symptoms. Post service, the earliest record of treatment for any condition is 1993 treatment by Dr. "P.O." for right arm and leg weakness and numbness, pressure behind the eyes, nausea, and vomiting. Those are not reports of residuals of in-service injuries. Dr. P.O. attributed his symptoms to multiple sclerosis, and, indeed, stated that the Veteran was totally disabled due to multiple sclerosis. VA afforded him an examination in March 1995. There were no specific complaints of knee or ankle symptoms. Musculoskeletal examination was normal. This is evidence against his claim because it tends to show that he had no disorder of his knees or ankles at that time. Added to the record more recently are records of treatment at VA facilities. Those treatment records can be broken down into time periods of 1996 to 2000 and 2007 to 2009. The records from 1996 to 2000 tend to show that he had no symptoms involving his knees or ankles. Those records address psychiatric treatment and reports of numbness attributed to multiple sclerosis. Treatment records from the year 2000 list a past medical history of hypertension, gastroesophageal reflux disease, depression, and hernia repair. There are repeated notations that the Veteran had no new complaints and that he had been counseled to lose weight. April 2000 treatment notes document that the Veteran was a construction worker and walked most of each day but did not exercise in a continuous manner. Although he reported depression, groin pain, upper respiratory symptoms, and intermittent numbness of all extremities, he did not report pain of his knees or ankles during the period from 1996 to 2000. That he did report other symptoms leads the Board to the conclusion that if he had knee or ankle symptoms during that period he would have reported them also. His report of walking most of the day in as a construction worker leads to the reasonable conclusion that if he had any ankle or knee symptoms it would have been at least mentioned in those notes. These facts tend to show that he did not have symptoms during that period. Although the Board recognizes that there need be no showing of constant symptoms to establish continuity of symptomatology, four years without report of symptoms in detailed medical records tends to show that there has not been continuity of symptoms. These records are therefore evidence against his claims because they tend to show that he then had no residuals of in-service injuries ankle or knee injuries. Following his 1994 claim, the first report of knee or ankle pain is found in February 2007 treatment records documenting the Veteran's complaint of bilateral ankle and knee pain that increased with prolonged standing or exposure to cold weather. A May 2007 neurology consult documents his report of joint pain and numbness of the extremities. October 2007 notes document that x-rays of his knees and ankles were negative. Beginning in August 2008, VA treatment notes document that the Veteran worked as a carpenter and was requesting that clinicians fill out paperwork for work disability and early retirement. An April 2009 treatment note documents his report of knee symptoms of onset 5 years earlier. Those treatment notes are evidence against his claim. In particular, the April 2009 report of a 5 year history of knee symptoms is inconsistent with a finding of knee symptoms present since service. In May 2007, VA afforded the Veteran an examination of his knees and ankles. The examiner indicated review of the claims file and provided a detailed medical history that included reference to the Veteran's reported history obtained during the examination. The Veteran reported that he had problems with his knees and ankles for "years" but especially over the past couple of years. Noted in a section of the report addressing the effect of his claimed disorders on employment is that the Veteran had worked as a carpenter for more than 27 years and his report that he had lost 5 to 6 days of work per month in the past year because of joint problems. After interview with and examination of the Veteran, the examiner diagnosed chronic bilateral knee and ankle arthralgias and plantar calcaneal spurs. The examiner opined that it was less likely than not that any of the diagnosed disorders were a result of the Veteran's active service. The examiner noted that although the Veteran had been treated for lower extremity symptoms during service there was no mention of residual problems in his separation report of examination and no particular mention of joint problems after service until 2007. The examiner further explained that the Veteran worked as a carpenter for 27 years and that work probably had more effect on his knees and ankles. This report is evidence against the Veteran's claims. The Board affords the report considerable probative value because the examiner provided a compelling and logical rationale for the ultimate conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that most of the value of a medical opinion comes from its reasoning). This report not only addressed whether there was continuity of symptomatology but is broad enough for the Board to find it to be evidence against a finding that the Veteran's in-service caused any current disorder of his knees or ankles. The Veteran has repeatedly referred to the in-service reports of symptoms as a basis for awarding compensation benefits. For example, in a July 2009 letter he contended that his service treatment records had not been adequately addressed by the RO. To the extent that the Veteran argues that there has been continuity of symptomatology the Board finds the complete records of treatment over periods of several years without mention of his knees or ankles and the reports at separation from active service to be more probative than his statements, for the reasons already discussed. To the extent that he argues that those in-service injuries caused his current joint pain or calcaneal spurs, the Board finds his statements are not competent evidence. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit provided an example of when lay evidence is competent as to diagnoses, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report only that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on direct observation are factors in determining whether a non-expert nexus opinion s is competent evidence. Here, whether sprains, contusions, or for that matter stress fractures result in joint pain or spurs after years without symptoms cannot be determined by direct observation and is not a simple question. His opinion in this regard is not competent evidence and is not favorable to his claims. The period of time without symptoms, the normal evaluations and historical report at separation from service, and the 2007 examination report outweigh the fact that the Veteran had knee and ankle injuries during service and his more recent reports. As the preponderance of evidence is unfavorable to his claims, the Board must deny his appeal as to entitlement to service connection for bilateral ankle and knee disorders. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for residuals of bilateral ankle sprain/soft tissue injuries is reopened, and to that extent only, the claim is granted. The claim of entitlement to service connection for residuals of bilateral knee sprain/soft tissue injuries is reopened, and to that extent only, the claim is granted. Service connection for a bilateral ankle disorder is denied. Service connection for a bilateral knee disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs