Citation Nr: 1303674 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-04 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 2. Entitlement to service connection for a knee disability. 3. Entitlement to service connection for a stomach disorder, including as secondary to malaria. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to June 1954. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in April 2007, a statement of the case was issued in December 2008, and a substantive appeal was received in February 2009. In September 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. The February 2007 rating decision on appeal also denied claims for compensable ratings for epidermophytosis of the right foot and left foot. However, in his February 2009 substantive appeal, the Veteran specified that he was limiting his appeal to the issues regarding his back, knee(s), and stomach. He filed a new claim for increased ratings in November 2010, and an August 2011 rating decision continued the noncompensable disability ratings for epidermophytosis of the right foot and left foot. The Veteran did not timely file a notice of disagreement with the August 2011 rating decision, and he did not submit new and material evidence within one year of the decision, therefore it is now final. Therefore, the Board accepts his Travel Board testimony regarding a worsening of the bilateral foot condition as a new claim for increased ratings. The issues of increased ratings for epidermophytosis of the right foot and the left foot have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for a back disability (under a merits analysis) and a knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed November 1993 rating decision denied the Veteran's claim of service connection for a back condition. 2. Certain evidence received since the November 1993 rating decision is new and material, it relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and it raises a reasonable possibility of substantiating the Veteran's claim. 3. A stomach disorder was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran's current stomach disorder is related to his service or was caused or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a back disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Service connection for a stomach disorder, to include as secondary to service-connected disability, is not warranted. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 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, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. A March 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. An August 2006 letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. VA's duty to assist includes providing for a VA examination/securing a medical opinion, when necessary. A VA examination is necessary in a service connection claim when: (1) There is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence establishing that an event, injury, or disease occurred in service; (3) there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) there is otherwise insufficient competent evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to factor # 3 above (indication that the claimed disability may be associated with service or with another service-connected disability), the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the claimed stomach disability, a VA examination is not needed because there is no evidence suggesting the Veteran has a chronic stomach disability that may be related to his service or any service-connected disability. Therefore, the low threshold standard set in McLendon is not met. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Regarding whether new and material evidence has been received to reopen a claim of service connection for a back disability, the matter of compliance with VCAA will be addressed in a future decision on the merits. There is no prejudice with proceeding with the instant decision since the back claim is being reopened and the remaining issues remanded. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. New and material evidence to reopen a claim A November 1993 rating decision denied the Veteran's claim of service connection for a back condition, based essentially on findings that the service treatment records (STRs) contained no evidence of a back condition or injury. The Veteran did not initiate an appeal as to this denial by filing a notice of disagreement, and no new and material evidence was received within one year of the rating decision which was not addressed by the RO. The decision thus became final. 38 U.S.C.A. § 7105(c). Generally, when the RO denies a claim, and the Veteran does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, 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. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran contended in his 1993 claim that he incurred a back injury due to a truck accident in 1953, during his active duty service. Evidence of record at the time of the November 1993 rating decision included the Veteran's STRs and VA treatment records. The STRs are silent for any complaints, findings, treatment, or diagnosis regarding any back disability, and the spine was normal on clinical evaluation in the June 1954 service separation examination. The treatment records at that time were also silent for any complaints, findings, treatment, or diagnosis of any back disability. Based on this record, the RO denied the claim. Evidence received since the November 1993 decision includes VA medical records showing ongoing treatment for diagnosed back problems; statements from the Veteran regarding an injury he incurred in service; and a "buddy" statement corroborating an incident cited by the Veteran as the cause of his current back disability. The records showing that the Veteran now has a back disability are clearly new and material when viewed against the backdrop of the prior denial. Additionally, the "buddy" statement from a fellow service member who served with the Veteran for four years, describing an incident in which the Veteran suffered a back injury while stationed in Subic Bay, Philippines, is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability. In addition, in his sworn testimony at the September 2012 Travel Board hearing (which for the purpose of reopening is presumed to be credible), the Veteran testified that he has had continuous symptomatology of a back disability since the described injury in service. Because service connection for a back disability was denied in November 1993 based essentially on a finding that such disability was not shown, for evidence to be new and material in this matter, it must relate to such finding. The Veteran's treatment records, the "buddy" statement, and his lay statements and testimony are new and material and also relate to an unestablished fact necessary to substantiate the service connection claim. As such, the Veteran's back disability claim is reopened. It is well-established that the requirement for reopening is a "low threshold" requirement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a stomach disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran's theory of entitlement as to this service connection claim is primarily one of secondary service connection. He contends that a stomach disorder developed secondary to malaria. In pertinent part, service connection has been established for epidermophytosis of both feet, each at a noncompensable disability rating. Notably, the Veteran is not service connected for malaria or residuals thereof. As the Veteran has also advanced a contention that the stomach disorder may have begun during service and persisted, the Board will also address a direct (i.e., to service) causation theory of entitlement to service connection. The Veteran's STRs are silent for any complaints, treatment, or diagnosis regarding the stomach. On June 1954 service separation examination, the abdomen and viscera were normal on clinical evaluation. Treatment records from 1992 through 1995 include assessments of a history of diverticular disease, reflux by history and upper GI study, and history of colon polyps. VA treatment records from 2001 through 2008 reflect ongoing assessments of, and treatment for, gastroesophageal reflux disease (GERD). It is not in dispute that the Veteran currently suffers from a gastrointestinal disease. In his January 2006 claim statement, the Veteran stated that he was told by a civilian doctor that his current stomach problems could be caused by a history of malaria. In a March 2006 statement, the Veteran stated that he sought treatment after service for stomach problems, from private physicians who are now deceased. He stated that, in 1975, he was referred to a physician (now deceased) for stomach problems, chills and fever, and he was hospitalized; he stated that he was questioned about his tours of duty in service and then diagnosed with malaria recurring several times per year. At the September 2012 Travel Board hearing, the Veteran testified that after being diagnosed with acid reflux, his doctor (Dr. Alison) told him that he must have had malaria in service which was in remission and had caused the stomach disorder. He testified that no residuals of malaria were found in his blood. He testified that he experienced acid reflux symptoms frequently but not daily. It is not shown that a stomach disorder became manifest in service and persisted. The Veteran's STRs do not contain any evidence of persistent complaints pertaining to the gastrointestinal system during service, or any evidence of complaint, finding, treatment or diagnosis regarding the stomach during service. There is also no evidence of postservice continuity of stomach complaints; by the Veteran's own accounts, such complaints began after his separation from service. Postservice evaluation/treatment records provide no indication that any current gastrointestinal disability may somehow be directly related to the Veteran's service. Accordingly, service connection for a stomach disorder on the basis that it was incurred or aggravated in service is not warranted. Inasmuch as any reports of longer-existing stomach complaints or symptoms are inconsistent with, and contradicted by, the Veteran's own accounts regarding the onset of such problems, such reports are deemed obviously self-serving, and the Board finds them not credible. The preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought. There is no evidence whatsoever relating the Veteran's current stomach disorder with his only service-connected disabilities of epidermophytosis of both feet. As noted above, the Veteran is not service connected for malaria; indeed, a November 1993 rating decision denied service connection for malaria. There is no competent (medical opinion/treatise) evidence in support of the Veteran's secondary service connection theory of entitlement. Regarding the Veteran's own opinion that his stomach disorder is due to his service or service-connected disabilities, he is a layperson (with no demonstrated or alleged expertise in determining whether there is a nexus between a gastrointestinal disorder with disabilities of the feet); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion on this question of causality (which is medical in nature and beyond lay observation) has no probative value. See Jandreau, supra, at 1372, 1377. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a stomach disorder. Accordingly, it must be denied. ORDER New and material evidence has been received to reopen the claim of service connection for a back disability. The appeal is granted to this extent, subject to the directives set forth in the following remand section of this decision. Service connection for a stomach disorder, including as due to malaria, is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the matters on appeal. See 38 C.F.R. § 3.159 (2012). The Veteran alleges that his current back disability and knee disability were caused by an injury sustained in service. At the September 2012 Travel Board hearing, the Veteran testified that his back and knees began bothering him when he was stationed in the Philippines in service after he fell from a scaffold, and his back and knees have hurt since that time. He testified that he had worked as a builder when he was stationed in Korea, prior to being stationed in the Philippines. He testified that he had to give up building when he left service, and he currently receives treatment for knee problems and degenerative arthritis of his back, including taking pain medication. Although the STRs do not contain any record of such an incident, the Board notes that the Veteran did seek treatment for knee pain in July 1952 (use of a heat lamp) and October 1952 (use of a heat lamp for an aching patella), and he submitted a "buddy" statement from a fellow service member who stated he saw the Veteran incur an injury in service. The Veteran is entitled to the benefit of the doubt regarding the alleged injury in service. The Veteran has stated (and is competent to observe) that he has continued to have back and knee symptoms since separation from service. Given the medical evidence of current back and knee disabilities, and the lay statements and testimony from the Veteran that he has experienced continuous back and knee symptoms since service, the "low threshold" standard outlined in McLendon is met. The question presented (whether based on the entire record the Veteran has current disabilities of the back and/or knees related to any injury or injuries in service) is a medical question, and a VA nexus examination is necessary to determine the nature of, and likely etiology for, any current disabilities of the back and/or knees. Finally, a review of the claims file (including Virtual VA) found that the most recent VA treatment records in evidence are from December 2008, indicating that there may be additional VA treatment records not yet associated with the claims file. Such records of treatment would be pertinent and perhaps critical evidence regarding the claims on appeal; VA treatment records are constructively in evidence and must be secured. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should secure for the record copies of the complete clinical records of any (and all) pertinent VA treatment records since December 2008. The AMC/RO should review the records received, and arrange for any further development suggested by the information therein. 2. The RO should then arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of any back and/or knee disabilities found. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) the Veteran's current disabilities of the back and knees. (b) As to each back and knee disability entity diagnosed, please indicate what is the most likely etiology for such disability? Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred in the Veteran's active duty service? The opinion must specifically include comments as to whether the disability picture presented (by each disability entity diagnosed) is consistent with the Veteran's accounts that he has had such disability ever since his discharge from active service (in 1954)? The examiner must explain the rationale for all opinions. 3. The AMC/RO should then re-adjudicate the matters on appeal. If either remains denied, the AMC/RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. Then, if in order, the case should be returned to the Board for appellate review. The appellant 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. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs