Citation Nr: 1301524 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-38 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected patellofemoral chondromalacia of the right knee (hereinafter, "right knee disorder"). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for coronary artery disease (CAD). 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for Dressler's syndrome (claimed as injury, left lung). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to December 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in October 2007 and September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. By the October 2007 rating decision, the RO assigned an increased rating of 20 percent for the service-connected right knee disorder, effective February 5, 2007 (date of claim). The Veteran appealed, contending that a higher rating was warranted. He did not disagree with the effective date assigned for the increased rating. The other appellate claims were addressed by the September 2008 rating decision. The Board acknowledges that, by a December 2009 Statement of the Case (SOC), the RO found that new and material evidence had been received to reopen the Veteran's CAD claim, and subsequently denied the underlying service connection claim on the merits. 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 Veteran provided testimony at a hearing conducted before personnel at the RO in July 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's 38 U.S.C.A. § 1151 claim. Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development necessary for the disposition of the claims adjudicated by this decision have been completed. 2. The Veteran's service-connected right knee disorder is not manifested by ankylosis, dislocation or removal of semilunar cartilage, mal- or nonunion of the tibia and/or fibula, genu recurvatum, flexion limited to 60 degrees or less, nor extension limited to 20 degrees or more. 3. Service connection was previously denied for CAD by a June 2005 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 4. The evidence received since the last prior denial of service connection for CAD was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 5. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's CAD was incurred in, aggravated by, or otherwise the result of his active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's service-connected right knee disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5256 to 5263 (2012). 2. New and material evidence having been received to reopen the claim of entitlement to service connection for CAD, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for a grant of service connection for CAD are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes, in pertinent part, that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established significant requirements with respect to the content of the notice necessary for those cases involving the reopening of previously denied claims. However, for the reasons detailed below, the Board concurs with the RO's determination that new and material evidence has been received to reopen the claim of service connection for CAD. Therefore, no further discussion of the VCAA, to include the requirements of Kent, are required with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot. In regard to the claims for an increased rating for the service-connected right knee disorder, and service connection for CAD, the Board observes that the Veteran was sent VCAA-compliant notification via letters dated in July 2007, May 2008, and November 2011. Through these letters, the Veteran was informed, in pertinent part, of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). These appellate claims were last adjudicated via an October 2012 Supplemental SOC (SSOC). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his right knee and CAD claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding the right knee and CAD claims. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the July 2009 RO hearing. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indicated there is outstanding evidence documenting symptoms of his service-connected right knee disorder which is not documented by the evidence already of record, or which relates the etiology of his CAD to military service. With respect to the July 2009 RO hearing, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts 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 RO official who conducted the hearing accurately noted the current appellate issues, and asked questions to clarify the Veteran's contentions and treatment history. Although this official did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claim, the Veteran, through his statements and hearing testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Finally, 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 either hearing. In fact, he indicated at the conclusion of the hearing that he felt that he had been given and fair and equitable opportunity to present his evidence. See Transcript p. 7. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran accorded VA medical examinations in July 2007 and November 2011 which evaluated the symptomatology of his service-connected right knee disorder. He was also accorded a VA medical examination in June 2012 which included an opinion that addressed the etiology of his CAD. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the VA examiners who evaluated the Veteran for his knee took into account the documented history of this service-connected disability, as well as the Veteran's own account regarding the current symptomatology thereof. The VA examiner who evaluated the CAD indicated familiarity regarding this disability based, in part, on review of the Veteran's VA claims folder. As such, these examiners were familiar with the nature and history of these disabilities. Moreover, the findings made regarding the symptomatology of the right knee were consistent with the other evidence of record, as well as the relevant rating criteria. The opinion regarding the etiology of the Veteran's CAD was supported by stated rationale consistent with the Veteran's medical history. No inaccuracies or prejudice is demonstrated with respect to the findings of these examinations, nor has the Veteran indicated his service-connected right knee disorder has increased in severity since the most recent examination. Accordingly, the Board finds that these examinations are adequate for resolution of the Veteran's right knee and CAD claims. In view of the foregoing, the Board finds that the duty to assist has been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). I. Right Knee Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Veteran has consistently complained of right knee pain. Therefore, the Board will take careful consideration of 38 C.F.R. § 4.40, 4.45, and 4.59, in evaluating this service-connected disability. Moreover, as detailed below, it is observed that the VA medical examinations conducted in this case include repetitive testing in an effort to simulate the extent of functional impairment during flare-ups of pain. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for disabilities of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Diagnostic Code 5256 provides for ankylosis of the knee. Under this Code, favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 degrees and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. When the knee is fixed in flexion between 20 degrees and 45 degrees, a 50 percent rating is assigned. A 60 percent rating is warranted for extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, slight impairment of either knee, with recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, when there is cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent is assignable. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. This Code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5262 provides criteria for impairment of the tibia and fibula. With malunion and slight knee or ankle disability, a 10 percent rating is assigned. Moderate knee or ankle disability warrants a 20 percent rating. A 30 percent rating is assigned when there is marked knee or ankle disability. When there is nonunion with loose motion, requiring brace, a 40 percent rating is warranted. 38 C.F.R. § 4.71a. Under Diagnostic Code 5263, when there is genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated), a 10 percent rating is warranted. This Code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. Initially, the Board notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5258 (cartilage, dislocated, semilunar), 5259 (symptomatic removal of semilunar cartilage and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the right knee, dislocation or removal of the semilunar cartilage, mal- or nonunion of the tibia or fibula, or genu recurvatum have not been demonstrated. The Board observes that the record consistently reflects that the Veteran's service-connected right knee disorder is manifested by complaints of pain and resulting limitation of motion. Although the Board does not dispute the Veteran is competent to describe right knee pain, specific testing is required in order to determine the full extent of range of motion for the knee to include during flare-ups of pain. In this case, the Board finds that the Veteran's service-connected right knee disorder is not manifested by flexion limited to 60 degrees or less, nor extension limited to 20 degrees or more. For example, the August 2007 VA examination noted that the Veteran had active extension against gravity from -20 to -14 degrees, with pain at -16 to -14 degrees; and passive extension and pain from -15 to -12 degrees; and extension against strong resistance from -25 to -20 degrees, with pain at -20 degrees. After repetitive motion, the Veteran was found to have additional limitation of motion, with limitation from -20 to -15 degrees. He had active flexion against gravity to 100 degrees, with pain at 95 to 100 degrees; passive flexion to 108 degrees, with pain from 105 to 108 degrees; and flexion against strong resistance to 88 degrees, with pain from 82 to 88 degrees. After repetitive motion, he had additional limitation of motion, with flexion noted as from 0 to 105 degrees after repetitive testing. The RO concluded that these results showed extension limited to 14 degrees, and flexion limited to 100 degrees. The Board agrees with that determination as it indicates the Veteran's active motion. However, it should be noted that repetitive testing showed extension limited to 15 degrees, and extension/flexion against strong resistance is not contemplated in a disability evaluation. See 38 C.F.R. § 4.59 that instructs joint testing on active and passive motion. The more recent November 2011 VA examination noted the Veteran had right knee flexion to 120 degrees, with painful motion first noted at 115 degrees. He had extension to 10 degrees for the right knee. After repetitive testing, he had flexion to 115 degrees, and extension again to 10 degrees. None of the other evidence of record reflects the Veteran otherwise has flexion limited to at least 60 degrees, or extension limited to at least 20 degrees, even when taking into account the Veteran's complaints of pain. The Board acknowledges that, in VAOPGCPREC 9-2004, VA's Office of General Counsel held in that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. The precedent opinions of the VA General Counsel's Office are binding upon the Board. 38 U.S.C.A. § 7104. In this case, however, the record does not reflect the Veteran satisfies the criteria for even a 10 percent rating based upon limitation of flexion under Diagnostic Code 5260. Therefore, separate compensable ratings are not warranted under VAOPGCPREC 9-2004. The Board also notes that, in VAOPCPREC 23-97, General Counsel for VA held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. Although the Veteran does have limitation of extension so as to warrant a rating under Diagnostic Code 5261, he does not have recurrent subluxation and/or instability so as to warrant a separate compensable rating under Diagnostic Code 5257. For example, while he reported episodes of giving way of the right knee at the August 2007 VA examination, on physical examination itself the examiner stated that there was no instability, and no episodes of subluxation or dislocation. Similarly, the November 2011 VA examination found the right knee to be normal on anterior, posterior, and medial-lateral instability testing. Moreover, there was no evidence or history of recurrent patellar subluxation/dislocation. None of the other evidence of record otherwise supports such a finding. In view of the foregoing, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 20 percent for his service-connected right knee disorder. The Board notes that in making this determination, it considered the applicability of "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. However, the record indicates that the symptomatology of the service-connected right knee disorder was consistent during the pendency of this case; i.e., there were no distinctive period(s) where the Veteran met or nearly approximated the schedular criteria for a rating in excess of 20 percent. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's service-connected right knee disability. In pertinent part, this disability is productive of pain and limitation of motion, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's service-connected right knee disorder and referral for consideration of extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect the Veteran is unemployable due solely to his service-connected right knee disorder. Although the evidence does indicate a degree of occupational impairment due to this disability, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (Noting that the disability rating itself is recognition that industrial capabilities are impaired). II. CAD Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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, 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 this case, service connection service connection was previously denied for CAD by a June 2005 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. Therefore, that decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In this case, the evidence of record at the time of the June 2005 rating decision included the Veteran's statements, his service treatment records, and post-service medical records which covered a period through 2005. In pertinent part, the Veteran's service treatment records reflect that he was evaluated for complaints of chest pain, to include an EKG, which was diagnosed as costochondritis. Nevertheless, he was not actually diagnosed with CAD while on active duty. In fact, his heart was clinically evaluated as normal on his September 1983 separation examination. His cardiovascular system was also evaluated as normal on a February 1984 VA medical examination. The first competent medical evidence of CAD was years after his separation from service. The June 2005 rating decision denied service connection for CAD, finding that there was no evidence of a diagnosis or treatment for this disability during active service. The evidence added to the record since the time of the June 2005 rating decision includes additional statements from the Veteran, his testimony at the July 2009 RO hearing, and additional post-service medical records which cover a period through 2012. In pertinent part, the Board notes that the Veteran provided details regarding his in-service chest pain at the July 2009 RO hearing that do not appear to have been made at the time of the prior denial. Moreover, he testified that he was informed he was having a heart attack while on active duty. See Transcript pp. 3-4. As this testimony appears to provide additional, relevant details regarding the in-service complaints of chest pain, it is not cumulative or redundant and does appear to relate to unestablished facts necessary to substantiate the claim. Moreover, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, this evidence does raise a reasonable possibility of substantiating the claim. In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for CAD was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. As such, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a), and the claim is reopened. Adjudication of the Veteran's appeal does not end with the determination that new and material evidence has been received to reopen the CAD claim. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence submitted to reopen is true without regard to the other evidence of record no longer applies. The Board also wishes to reiterate the fact that the RO previously determined that new and material evidence had been received, and has addressed the merits of the underlying service connection claim. Nevertheless, pursuant to the holdings of Barnett, supra, and Jackson, supra, the Board was still required to find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. However, as detailed above, the RO accorded the Veteran an examination in relation to this claim, and the Board is satisfied that it is adequate to adjudicate the service connection claim. Inasmuch as the RO has already addressed the merits of the service connection claim and the duty to assist on this matter is satisfied, the Veteran is not prejudiced by the Board also addressing the merits of this case. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In adjudicating the claim of service connection for CAD, the Board finds that while a lay person, such as the Veteran, is competent to describe chest pain, competent medical evidence is required to determine whether such complaints are due to CAD or any other heart condition. For example, the heart is an internal organ not subject to lay observation. Simply put, competent medical evidence is required to determine whether the Veteran's current CAD is etiologically linked to his active service to include the documented in-service complaints for chest pain. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board also notes that there is no competent medical evidence showing a diagnosis of CAD until years after the Veteran's separation from active service. As such, he is not entitled to a grant of service connection for a chronic disease found to be present to a compensable degree within the first-post service year in accord with 38 C.F.R. §§ 3.307, 3.309(a). Moreover, there is nothing in the record which indicates that the Veteran's case warrants consideration of presumptive service connection for ischemic heart disease based upon in-service herbicide exposure pursuant to the provisions of 38 C.F.R. §§ 3.307, 3.309(e). The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board further notes that the only competent medical opinion of record which addresses the etiology of the Veteran's CAD is that of the June 2012 VA examiner. In pertinent part, the examiner opined that this disability was less likely than not (lest that 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner noted that the Veteran was diagnosed with costochondritis while in the military, as reflected by his service treatment records with a normal EKG; and summarized the current nature and symptomatology of the Veteran's CAD, which presented many years post service. In essence, the examiner indicated that the current disability was inconsistent with the documented in-service findings. In summary, even though the Veteran was treated for chest pain while on active duty, these complaints were not attributed to CAD; his CAD was first diagnosed years after his separation from service; and the only competent medical opinion to address the etiology of his current CAD is against it being linked to military service to include the documented in-service complaints of chest pain. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's CAD was incurred in, aggravated by, or otherwise the result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Entitlement to a rating in excess of 20 percent for service-connected right knee disorder is denied. New and material evidence having been received to reopen the claim of entitlement to service connection for CAD, the claim is reopened. To this extent only, the benefit sought on appeal is allowed. Entitlement to service connection for CAD is denied. REMAND Under the current provisions of 38 U.S.C.A. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). In this case, the record reflects the Veteran underwent coronary artery bypass grafting at a VA medical facility in June 2007. He was discharged on June 19, 2007, without any complications. On a follow-up appointment on June 19, 2007, he indicated that he was doing well. He subsequently presented to emergency room on June 29, 2007, complaining of two-day history of sharp sternal and left upper chest pain, which was diagnosed as Dressler's syndrome. The Veteran has contended that his bypass surgery took longer than the doctor originally stated; a couple of weeks following the surgery he experienced collapsed lungs and returned to the hospital; that the doctor who took X-rays after he returned informed him that his left lung must have been accidentally cut during the heart surgery, that he had multiple staples in the lung, and that this was what caused it to collapse. See Transcript p. 2. The claim was denied below on the basis that Dressler's syndrome was a known complication of heart surgery, and that there was no evidence of fault on the part of VA in the heart surgery. However, no competent medical examination and/or opinion is of record which explicitly supports this finding. The Board finds that such an examination and opinion is necessary for resolution of this case. Consequently, a remand is required for this development. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further finds that any outstanding treatment records regarding the Veteran's Dressler's syndrome should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his Dressler's syndrome since October 2012. After securing any necessary release, the AMC/RO should obtain those records not on file. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to address his 38 U.S.C.A. § 1151 claim. The claims folder should be made available to the examiner for review before the examination; the examiner should indicate that the claims folder was reviewed. The examiner should then answer the following questions: a. Did the Veteran develop Dressler's syndrome or any other disability/additional disability as a result of the June 2009 coronary artery bypass grafting? b. If the Veteran developed Dressler's syndrome or any other disability/additional disability as result of the June 2009 coronary artery bypass grafting, then is the proximate cause of this disability the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination? Is the proximate cause of this additional disability an event not reasonably foreseeable? A clear rationale for all opinions should be provided, together with a discussion of the facts and medical principles involved. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished an SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in October 2012, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs