Citation Nr: 1306330 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-50 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability and if so, whether service connection is warranted. 2. Entitlement to service connection for a status post arthroscopic left knee surgery (left knee disability). 3. Entitlement to an increased, initial (compensable) rating for a disability characterized as left ankle sprain with persistent peroneal tendinitis and pes planus (left foot disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from April 1978 to December 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from September 2007 and January 2009 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the Board before the undersigned Veterans Law Judge in November 2012. A transcript of the proceeding is of record. In February 2013, the Veteran submitted additional evidence, and waived RO consideration of that evidence. 38 C.F.R. § 20.1304 (2012). The issue of entitlement to service connection for a low back disability, and an initial increased rating for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for a low back injury was denied by a rating decision in February 1994. The Veteran did not appeal that decision and did not submit any relevant evidence within one year of the decision. 2. Evidence received since February 1994 is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability. 3. There is no probative evidence linking the Veteran's current left knee disability to service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 2. A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). Also, Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. Historically, service connection for a low back injury was originally denied by an unappealed rating decision in February 1994. 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, 24 Vet. App. 242, 251-52. Thus, the February 1994 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302; 20.1105 (2012). The specific reason service connection was denied in February 1994 was that, although the evidence of record showed the presence of a low back pain in service, the evidence did not establish that the Veteran had a chronic low back disability in service. The evidence of record at the time of the February 1994 rating decision relevant to the issue of service connection for a back disability consisted of service treatment records (STRs) showing complaints of back pain in October 1979. Evidence received after the February 1994 rating decision includes a statement from the Veteran's orthopedic physician, David E. Lannik, M.D., dated in August 2009, asserting "there is medical probability of his current conditions regarding his low back . . . can be related to his initial injuries which occurred as documented in the clinical/medical record provided from dates 1978-1988." In addition, a letter from Vernis L. Beverly, Jr., M.D., dated in January 2013, is of record. Dr. Beverly stated that he was almost certain that the Veteran's recurrent back pain was related to his in-service injuries. The Board finds that the Veteran has submitted new and material evidence since the February 1994 rating decision to reopen his claim. The newly submitted evidence, the two private physicians' statements, satisfies the Shade standard, as it raises a reasonable possibility of substantiating the claim Thus, his claim for service connection for a low back injury is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The issue of whether there is new and material evidence to reopen the previously denied claim of service connection for a low back injury has been resolved in favor of the Veteran. Thus, it was not necessary for the Board to consider whether the RO satisfied all applicable requirements of the duty to notify and assist the Veteran under 38 U.S.C.A. § 5103(a). II. Service Connection for a Left Knee Disability A. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, in this case the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices, which the RO provided by letter dated in June 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disability, and afforded the appellant the opportunity to give testimony before the Board. At his hearing, the Veteran stated that he would submit additional private orthopedic treatment records regarding his left knee disability. Although he did submit a letter from his orthopedist in January 2013, it did not relate to any left knee disability. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 symptomalogy. 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) ("[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, 581 F.3d 1313, 1316; Jandreau, 492 F.3d 1372, 1376-77. 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, 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 Appeal for the 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, and 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, 7 Vet. App. 498, 511. 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 there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs show that he was treated in August 1988 for left knee pain after falling on that knee while playing basketball. The diagnosis was rule out post-traumatic contusion. Periodic examination in July 1993 was negative for any findings or complaints of a left knee condition. Separation examination in October 1993 was negative for any findings of a left knee condition. A private post-service treatment record dated in 2006 noted a history of left knee surgery. A fee basis examination conducted in June 2007 diagnosed status post arthroscopic surgery with scars. In the aforementioned August 2009 letter from Dr. Lannik, he also asserted "there is medical probability of his current conditions regarding his . . . left knee . . . can be related to his initial injuries which occurred as documented in the clinical/medical record provided from dates 1978-1988." A fee basis examination was also conducted in November 2009. Patellofemoral syndrome of the left knee was diagnosed. After examination of the Veteran and review of the Veteran's treatment records, the examiner stated that the Veteran currently has patellofemoral syndrome of the left knee. He also noted that the Veteran's in-service injury involved a contusion and that his current left knee condition is a completely different condition. On review of the evidence above, the Board notes as a threshold matter that the Veteran has a diagnosed disorder of the left knee; i.e., patellofemoral syndrome. The first element of service connection is accordingly met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is typically required. Caluza, 7 Vet. App. 498. In this case the VA examination in November 2009 provides competent opinion that the Veteran's current patellofemoral syndrome of the left knee is not related to any incident in service. The only medical evidence suggesting the contrary is Dr. Lannik's August 2009 medical opinion. However, that opinion is expressed in speculative, imprecise language and therefore, does not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). Further, a bare conclusion, even one reached by a health care professional, is not probative without a rational. In contrast, the examiner in November 2009 supported the medical opinion with a clear clinical rationale; the examiner also performed a clinical examination, considered both the Veteran's subjective account and his objective history in the form of records associated with the claims file, and considered the unique facts and circumstances of this specific case. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 120. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). For the reasons cited above, the Board finds the opinion of the VA examiner in November 2009 to be the most probative medical opinion in regard to the question of whether the Veteran's current patellofemoral syndrome of the left knee is related to service. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above, the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers. The earliest record of any post service left knee treatment is dated in 2006. Although the Veteran contends his left knee disability caused pain since service, this is contradicted by the history he gave at the time of his service separation examination. The probative value of his contention is further reduced by his failure to mention the matter when he sought service connection for various other disabilities in January 1994, immediately after separation from service. Thus, the Board finds that any statement from the Veteran that he suffered from symptoms of a left knee disability since service is not credible. Given that conclusion, and with the other evidence failing to show any left knee complaints until many years after service, as well failing to link his current patellofemoral syndrome of the left knee to service, a basis upon which to establish service connection has not been presented. In sum, the Board has found the criteria for service connection for a left knee disability are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back injury is reopened, and to this extent the appeal is granted. Service connection for a left knee disability is denied. REMAND Additional development of the low back disability claim is required before readjudicating it on its underlying merits. In this regard, the evidence currently of record includes both evidence of a current diagnosis of a lumbar strain and evidence of symptoms of low back pain in service. To support a claim for service connection there must also be competent medical evidence linking the low back pain in service to the currently diagnosed low back disorders or lay evidence of a nexus. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, .492 F.3d 1372 (Fed. Cir. 2007). In November 2009, the Veteran was examined by VA contract physician to obtain a medical opinion addressing whether his currently diagnosed lumbosacral strain began in service. The VA examiner responded that he was unable to resolve the question without resort to mere speculation. "To state that a back strain that occurred 30 years ago to findings today would only be speculative at best." Because this opinion does not include a meaningful explanation for it, additional development as set out below should be accomplished. Regarding the Veteran's left foot disability, the Veteran alleges that his service-connected disability has worsened since he was previously examined in 2008. Therefore, a more contemporary VA examination is necessary to determine the current extent and severity of the disability. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his low back and left ankle disability since August 2009. After securing the necessary release, the AMC should attempt to obtain copies of all medical records from the identified treatment sources, including any VA treatment records not already of record, and associate them with the claims folder. 2. The Veteran should be afforded a VA orthopedic examination to determine the current severity of his left foot disability. The claims folder should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the examination report. All appropriate testing should be undertaken in connection with this examination. The examination report also should reflect the following: (a) any limitation of motion in the Veteran's left ankle, expressed in degrees; (b) whether the left ankle exhibits weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the degree of additional loss of range of motion. (c) whether pain could significantly limit functional ability during flare-ups or when the ankle is used repeatedly over a period of time. These determinations should also be portrayed in terms of the degree of additional range of motion loss. (d) whether pes planus is manifested by symptoms relieved by built up shoe or arch support; whether it presents a weight bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the foot; whether it is productive of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; or whether it is manifested by marked pronation, extreme tenderness of the plantar surface, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. If any requested information cannot be provided, the examiner should offer an explanation for that. 3. Arrange for the Veteran to be examined by an individual with appropriate expertise, to determine if any current low back disorder was incurred in service. The claims folder should be made available to the examiner in conjunction with the examination. The examiner is asked to diagnose all current disorders of the low back, and for each disorder diagnosed is asked to offer an opinion as to whether it is likely, unlikely, or at least as likely as not any currently diagnosed low back disorder was incurred during service. The examiner is asked to provide a complete rationale for the opinion expressed, with reference to any entries in the record as appropriate, including the back complaint noted in service in 1979, the Veteran's report of recurrent back pain at service separation in 1993, and statements from the Veteran describing periodic episodes of back pain. If the requested opinion cannot be provided without resort to speculation, the examiner should set forth an explanation for that conclusion as well. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a particular conclusion as it is to find against it. 4. After the requested development has been completed, the AMC should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and given the opportunity to respond thereto. 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