Citation Nr: 1302283 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-13 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for hemorrhoids. 2. Entitlement to service connection for hemorrhoids. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to October 1968, from May 1970 to May 1972, and from November 1990 to May 1991. The Veteran also had Reserve and National Guard service. 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 Baltimore, Maryland. Jurisdiction is currently with the RO in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at a September 2012 Central Office hearing, and a transcript of this hearing is of record. FINDINGS OF FACT 1. An April 1997 RO decision denied entitlement to service connection for hemorrhoids; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. Evidence received since the April 1997 RO decision is new and material, and the Veteran's claim is reopened. 3. The Veteran's hemorrhoids had their onset during her active service. 4. The Veteran's right knee disability was permanently aggravated beyond the natural progression of the disability by an injury during a period of active duty for training. CONCLUSIONS OF LAW 1. The April 1997 RO decision that denied entitlement to service connection for hemorrhoids is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received since the April 1997 RO decision, and the Veteran's claim for entitlement to service connection for hemorrhoids is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). 3. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 4. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. 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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material The Veteran's original claim for entitlement to service connection for hemorrhoids was denied in an April 1997 RO decision; the Veteran did not appeal or submit new and material evidence within one year of the decision. In June 2006, the Veteran filed a petition to reopen his claim of service connection for hemorrhoids. The RO denied the Veteran's claim on the grounds that new and material evidence had not been presented. The Veteran appealed. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 38 U.S.C.A. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The RO denied the appellant's prior claim because there was no evidence that the Veteran's hemorrhoids had onset in service or were related to the Veteran's active military service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's hemorrhoids had onset in service or were related to her active military service. At her September 2012 hearing, the Veteran and her spouse testified that she developed hemorrhoids while deployed in the Persian Gulf and had them lanced prior to her return home in March 1991. The credibility of the evidence is presumed for the purposes of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). This testimonial evidence is new and material. Accordingly, the Veteran's claim of service connection for hemorrhoids is reopened. The reopened claim is addressed in the Service Connection section below. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310 (2012). In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2012). Effective from October 10, 2006, 38 C.F.R. § 3.310 requires that service connection not be awarded on an aggravation basis without the establishment of a pre-aggravation baseline level of disability which can be compared to the current level of disability. 38 C.F.R. § 3.310. Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2011). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24),106, 1131. Active duty for training is defined, in part, as full-time duty in the Armed Forces performed by Reserves or National Guard members for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty for training is generally duty (other than full-time duty) prescribed for Reserves or performed by a member of the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Generally, annual training is an example of active duty for training while weekend drills are inactive duty. Presumptive periods do not apply to active duty for training or inactive duty for training. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Hemorrhoids The Veteran is seeking entitlement to service connection for hemorrhoids, which she claims had onset during a period of active military service. Specifically, the Veteran has testified that while deployed in the Persian Gulf from November 1990 to May 1991, she developed hemorrhoids which had to be surgically removed prior to her return the United States. At her September 2012 hearing, she testified that she developed hemorrhoids during her deployment, which became extremely painful, and shortly before she was scheduled to return home, she required surgery. Her husband also testified that the Veteran called him and informed him of her operation. If a progress note or surgical report was completed contemporaneous to the procedure, it is not associated with the Veteran's claims file. However, her service treatment records include an April 1994 Gulf War Registry physical which notes that the Veteran had surgery in March 1991 to remove a thrombosed hemorrhoid. This examination was performed more than a year before the Veteran filed her first claim for entitlement to service connection for hemorrhoids, so presumably all the information the Veteran provided to the physician examining her was done solely for treatment purposes. Additionally, the Veteran has been consistent in describing the onset of her hemorrhoids as during her period of active service and reporting that she required surgery to treat her hemorrhoids. In light of all the evidence of record, the Board finds the accounts of the Veteran and her spouse to be competent and credible concerning the etiology of the Veteran's hemorrhoids. Additionally, the Veteran has offered credible testimony that following her hemorrhoid surgery in 1991, her hemorrhoids have continued to recur and her testimony is supported by her service treatment records, as well as VA treatment records which show recurrent treatment for hemorrhoids and rectal bleeding. As there is competent and credible evidence of in-service incurrence of the claimed disability, continuity of symptomatology, and a current disability, entitlement to service connection for hemorrhoids is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Right Knee Disability The Veteran is also seeking entitlement to service connection for a right knee disability. The Veteran has a current diagnosis of degenerative joint disease of the right knee. At issue is whether this disability was caused or aggravated by the Veteran's active military service. Although the Veteran has denied any specific injury to her knee during active service, she has testified that the physical demands of her military service placed stress on her knees and that she would frequently bump or twist her knees while performing her duties. Service treatment records do not show any evidence of a knee injury that occurred during the Veteran's active service or during a period of active or inactive duty for training. However, they do show treatment in February 1999 for an injury that occurred in April 1998 when the Veteran apparently fell and twisted her knee, with subsequent symptoms of pain and swelling of the right knee. No details of when or where the injury occurred are provided, but there is no indication that the injury is related to service. A March 2000 VA treatment note also documents treatment for knee pain of more than one year duration associated with a twisting injury. At that time, the Veteran denied any previous history of joint pain. However, at a January 1996 VA examination, the Veteran complained of bilateral hip and knee pain beginning in 1991 following her return from the Persian Gulf. At a May 2007 VA examination, the Veteran reported experiencing pain in the right knee off since the late 1980s following an incident in which she stepped in a hole which has recurred and progressively worsened. Thus, it is unclear exactly when the Veteran first began to experience right knee problems. However, the Veteran's primary contention on appeal is that her right knee disability was permanently aggravated beyond the natural progression of the disability during a period of active duty for training. Specifically, the Veteran testified at her September 2012 hearing that she was on active duty for training at the Pentagon on September 11, 2001 and that following the terrorist attack on this building, the Veteran, who is a registered nurse, assisted in treating the wounded until late into the night. This required frequent kneeling up and down and extensive walking. The Veteran also testified that she was wearing her dress uniform, including dress shoes, and that she tripped several times. The Veteran reported that before September 11, 2001, her right knee condition had been manageable, but after spending all day performing triage, it permanently deteriorated and she required surgery. The Veteran's spouse also testified at the September 2012 hearing that after the Veteran returned home, she complained of knee pain and reported that she had fallen and twisted her leg. Regarding the Veteran's testimony, the Board overall finds the Veteran's account to be credible. Of record is a copy of the order instructing the Veteran to report for active duty for special work (ADSW) from September 9, 2001 to September 14, 2001. The authority for this order is listed as 32 U.S.C. § 503, meaning that the period in question is considered active duty for training. 38 U.S.C.A. § 101(22) (West 2002). Also of record is a copy of a Meritorious Service Medal citation awarded to the Veteran for "[h]er unselfish caring for the injured, regardless of her own personal safety" following the terrorist attack on the Pentagon. Certainly the Board has no doubt that the many hours spent providing triage under hazardous conditions were physically demanding, and the Board accepts the Veteran's account that she experienced an increase in right knee problems following the events of that day. Furthermore, the Board notes that the Veteran has a doctoral degree in nursing, as well as years of clinical experience as a nurse, and thus the Veteran's opinion that her right knee condition permanently worsened after September 11, 2001 must be weighed as a medical opinion. In support of her claim that her right knee disability was permanently aggravated during a period of active duty for training, the Veteran has also submitted several private medical opinions. In October 2007, the Veteran's orthopedic surgeon, Dr. R.H. submitted a letter in which he stated that the Veteran has a history of multiple injuries to her knee during military service, although not severe enough to require previous surgery, and that it is at least as likely as not that her right knee arthritis is related to service. In March 2012, Dr. R.H. submitted a far more detailed explanation of why he believed the Veteran's right knee disability is related to service. He noted that he first saw the Veteran in July 2001, diagnosed her with degenerative joint disease of the right knee, gave her an injection, and advised her not to do any more running. It was his opinion that the Veteran's symptoms at this point were manageable. However, following the events of September 11, the Veteran received additional injections into her right knee on September 24, 2001 and October 3, 2001 with little relief of her symptoms. At that time, Dr. R.H. recommended surgery. He stated that this is evidence that the Veteran's condition was aggravated beyond the natural progression of the normal degenerative disease process. The Veteran also submitted a medical opinion from Dr. C.B., a physician who provides independent medical opinions. Dr. C.B. indicated that after reviewing all of the Veteran's medical and personnel records and examining the Veteran, he concluded that the Veteran would most likely not have required knee surgery but for her the overuse injury to her knee she sustained on September 11, 2001. His reasons are explained in detail in his report and include citations to medical journals. Based on all the evidence of record, the Board finds that entitlement to service connection for a right knee disability is warranted. While it is clear from the available medical records that the Veteran suffered from a serious right knee disability even before the events of September 11, 2001, multiple medical professionals have opined that until that day, the Veteran's condition was manageable and that after sustaining an overuse injury, her condition was permanently aggravated, requiring surgery. There is no medical evidence to the contrary and such a finding is not inconsistent with the evidence of record. Accordingly, entitlement to service connection for a right knee disability is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the Veteran's previously denied claim for entitlement to service connection for hemorrhoids is reopened. Entitlement to service connection for hemorrhoids is granted. Entitlement to service connection for a right knee disability is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs