Citation Nr: 1303129 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 06-13 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a left knee disorder, to include as due to service-connected disability. 4. Entitlement to service connection for a left hip replacement, to include as secondary to service-connected disability. 5. Entitlement to service connection for kidney disease, secondary to service-connected disability. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). 7. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for removal of the left meniscus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2005 and October 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). This case has previously come before the Board. In January 2011, and again in October 2011, the matters were remanded to the agency of original jurisdiction (AOJ) for additional development, to include affording the Veteran a requested hearing. The Board notes that although the January 2011 remand lists the issue regarding a psychiatric disability was one of entitlement to service connection, in the October 2011 remand, the issue was characterized as one involving new and material evidence to reopen the claim. The record reveals that there are final, unappealed decisions as to this issue. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Accordingly, the issue on appeal is reflected above. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2012. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for a left knee disorder and a left hip disorder, as well as entitlement to a TDIU and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for removal of the left knee meniscus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a January 1998 Board decision, service connection for a left knee disorder was denied. 2. The evidence added to the record since the January 1998 Board decision is new, not cumulative of evidence previously of record, and when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the underlying claim of entitlement to service connection for a left knee disorder. 3. Service connection for a psychiatric disorder was denied in an unappealed June 2007 rating decision. 4. Evidence received since June 2007 is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder. 5. A chronic kidney disability is not proximately due to or the result of service-connected disability. CONCLUSIONS OF LAW 1. The January 1998 Board decision, which denied service connection for a left knee disorder, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100. 2. Evidence submitted since the January 1998 Board decision is new and material and the claim of entitlement to service connection for a left knee disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1105 (2012). 3. New and material evidence has not been submitted, and the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1104 (2012). 4. A chronic kidney disability is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were fulfilled by letters issued in December 2006, January 2008 and May 2008, which informed the Veteran of the evidence he should obtain and that which VA would obtain. The letters further informed the Veteran of the reason for the prior denial of his claim for service connection for a psychiatric disorder, and of the type of evidence which would be considered to be new and material evidence sufficient to reopen the claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). This notice was provided to the Veteran prior to the initial adjudication of the claims. With respect to the duty to assist, the Veteran's service treatment records, VA, and private treatment records are of record, as well as Social Security Administration (SSA) records. Moreover, the Veteran has not identified any relevant, available records that have not been obtained. The Board acknowledges that the Veteran has not been afforded a VA examination with regard to his claim to reopen the issue of service connection for psychiatric disability. However, VA's duty to provide an examination is not triggered absent the submission of new and material evidence, and as discussed below, the Board finds that no such evidence was submitted with regard to that claim. In addition, an examination is not necessary regarding the kidney disorder service connection claim, as the evidence does not indicate that a kidney disorder or persistent or recurrent symptoms of such a disability may be associated with the Veteran's service or service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's bare assertion, without any accompanying reason or sufficiently detailed history which could provide a basis for his belief, or any medical evidence which tends to support his assertion is not sufficient to indicate that a kidney disorder may be associated with service or service-connected disability. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria to reopen and for service connection. Also, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder, and the Veteran provided his treatment history and his symptoms since service. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the claims addressed in this decision. II. Claims to Reopen Laws and Regulations When the Board or RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104(b), 7105. 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) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Left Knee The issue of entitlement to service connection for a left knee disorder was denied by the Board in January 1998. At the time of the prior Board decision, the record included service treatment records, statements from the Veteran, and post service medical records. The evidence was reviewed and the claim was denied. 38 U.S.C.A. § 7104. The decision is final. If new and material evidence is presented or secured with respect to a claim that has been disallowed, however, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. The January 1998 Board decision reflects that while there was lay evidence of an in-service injury and evidence of a current disability, there was no competent medical nexus evidence relating an in-service left knee condition to the current left knee disorder. The Board found that the Veteran was not competent to make medical determinations involving medical diagnosis or causation and that lay assertions could not establish the nexus element of the continuity of symptoms because the underlying disability at issue - internal knee injury and arthritis, was not one subject to lay observation. The evidence obtained since 1998 includes the Veteran's testimony regarding his in-service injury, a January 2009 statement corroborating the occurrence of the in-service injury that was drafted by a service colleague, and a December 1999 VA treatment record that notes a history of a medial meniscectomy in 1976 after a left knee injury in service. Also, SSA records, dated in June 2005, include a functional assessment pertaining to an old knee injury. In addition to the SSA records, neither the statement of the fellow service member nor the May 2006 or December 1999 VA treatment records were previously of record. This lay and medical evidence relates to not only a knee injury sustained during service but also to symptoms after separation, which when coupled with the Veteran's statements and testimony, is a competent indication of post service continuity of symptomatology, the absence of which was part of the basis for the prior denial in January 1998. As such, the evidence is new and material and the claim is reopened. The issue of entitlement to service connection for a left knee disorder is addressed in the remand below. Analysis - Psychiatric Disorder Service connection for bipolar disorder was denied in a June 2007 rating decision. The Veteran did not appeal, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the June 2007 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302; 20.1105 (2012). The specific reason service connection was denied in June 2007 was that, although the evidence of record showed depression, there was no evidence establishing a psychiatric disorder was either incurred in or aggravated by service and no evidence establishing an etiological relationship between the claimed disorder and service. The evidence of record at the time of the Board's denial included the Veteran's service treatment records, VA treatment records, and lay statements. The Board notes that service treatment records are negative for complaints, findings or a diagnosis pertaining to a psychiatric disorder. The September 1972 separation examination report shows that the Veteran's psychiatric status was normal. In addition, a psychiatric disability is not shown within the initial year after separation or until decades after service. The relevant evidence added to the record since the June 2007 rating decision includes the Veteran's private and VA treatment records and submitted statements. Although the records reflect treatment for an acquired psychiatric disorder in March 2004 and a current diagnosis of bipolar disorder, no medical opinions or statements suggesting that the etiology of the Veteran's currently-diagnosed psychiatric disorder is related to service have been submitted. The Board notes that additional statements from the Veteran reflect his assertion that he has a psychiatric disorder secondary to service-connected disability. The Veteran's new theory of entitlement, based on secondary service connection, is not sufficient to reopen the claim. 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 disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c); Allen v. Brown, 8 Vet. App. 374 (1995). The Board notes that although the Veteran is competent to report his symptoms, his opinion is not competent to establish that his psychiatric disorder is secondary to any disability, service connected or otherwise. To establish the etiology of the Veteran's psychiatric disability would require medical expertise, which the Veteran is not shown to possess. In this case, none of the competent (medical) evidence suggests the Veteran's psychiatric disability was caused or is aggravated by the Veteran's service connected hemorrhoids, his hemorrhoid medication or the disabilities for which he currently claims service connection, (i.e., the knee and hip). Accordingly, the Board finds that the additional evidence submitted is not material. Likewise, an examination is not necessary as the evidence does not indicate that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's bare assertion, without any accompanying reason or sufficiently detailed history which could provide a basis for his belief, or any medical evidence which tends to support his assertion, is not sufficient to indicate that a psychiatric disorder may be associated with service or service-connected disability. Thus, the Board does not find that this newly submitted evidence is both new and material. While the Veteran's medical treatment records and contentions are new, they are not material because they would not serve to substantiate his claim if it were reopened. Although the Veteran's medical treatment records reflect his current treatment for an acquired psychiatric disorder, the records fail to suggest that his current psychiatric disorder had its onset in service or is otherwise related to service or service-connected disability. As such, the newly submitted evidence is not material and therefore cannot serve to reopen the claim. Accordingly, the Veteran's appeal of this issue is denied. III. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 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 the 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). 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."). 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). As reflected in July 2008 correspondence, the Veteran asserts that his kidney disorder was caused by blood thinners and/or ibuprofen prescribed for service-connected hemorrhoids, which he notes having taken for over 30 years. The Board observes that there is no medical evidence, or otherwise competent evidence supporting the Veteran's theory of entitlement. He is not shown to have any expertise on the subject, so his assertion is of no probative value. It should be noted this is likewise true for any implied claim that the Veteran's left knee and hip disorders, or their medication have caused a kidney disorder. There is simply no competent evidence suggesting the Veteran has a kidney disorder due to or aggravated by his left knee or his left hip disabilities, or the medications taken for these. In these circumstances, there is no basis upon which to grant service connection, and the appeal is denied. ORDER The application to reopen the claim of entitlement to service connection for a left knee disorder is granted. New and material evidence not having been submitted, the claim for service connection for a psychiatric disorder is not reopened, and the appeal is denied. Service connection for a kidney disorder is denied. REMAND The Veteran seeks service connection for a left knee disability. Essentially, he asserts that he sustained a torn medial meniscus during service in 1971, and that his current left knee disability is related to the in-service injury. Service treatment records are negative for a left knee injury, and the September 1972 separation examination report shows that the lower extremities were normal. VA treatment records, dated in April 1976 and June 1976, reflect a torn cartilage in the left knee as a result of having twisted his left knee playing basketball. A July 1976 VA treatment record notes that a recent arthrogram showed a torn meniscus in the left knee for which he underwent a left medial meniscectomy. An August 1976 post operative record notes no tenderness to palpation of the left knee and that the wound was well healed. Subsequent records beginning in approximately the mid-1990s reflect left knee complaints, with diagnoses including degenerative changes about the knee. More recently still, the Veteran has attributed his knee problems to an undocumented injury during a football game in service at Advanced Individual Training. In this context, the Veteran's knee should be examined, and an opinion obtained as to the likelihood current disability is related to the in-service injury the Veteran now recalls. At the same time, an opinion should be obtained as to whether the Veteran developed a left hip disability secondary to his left knee disability, and/or whether any left hip disability increased in severity because of the left knee disability. Lastly, updated VA treatment records should be sought, and the issues concerning TDIU benefits and compensation under the provisions of 38 U.S.C.A. § 1151, will be deferred pending the outcome of the other remanded claims. Under the circumstances described above, the case is Remanded for the following: 1. Attempt to obtain VA treatment records pertaining to the Veteran that are dated since December 2008. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After associating any outstanding records with the claims file, arrange for the Veteran to undergo an appropriate VA examination of the left knee and left hip. The claims folder should be made available to and reviewed by the examiner. The examiner should indicate in his/her report whether or not the claims folder was reviewed. After examining the Veteran and considering the record, the examiner should offer an opinion that addresses the following: a. whether it is at least as likely as not the Veteran's left knee disability had its onset in service; and b. whether it is at least as likely as not the Veteran's left hip disability was caused by his left knee disorder, or increased in severity because of his left knee disorder. The basis for any opinion expressed should be set forth, with reference to specific facts and medical treatises/studies that support the conclusion. 3. After conducting any additional development as may become indicated as a result of the action taken for this Remand, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs